Orissa High Court

India) vs Jagannath Das And Others .... Opposite ... on 31 October, 2025

Author: B.P. Routray

Bench: B.P. Routray

Signature Not Verified
Digitally Signed
Signed by: BASANTA KUMAR BARIK
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 07-Nov-2025 10:53:40




                                      IN THE HIGH COURT OF ORISSA AT CUTTACK
                                                      C.M.P. No.181 of 2025
                            (In the matter of an application under Article 227 of the Constitution of
                            India)
                             Biswaranjan Das                           ....                Petitioner
                                                                    -versus-
                             Jagannath Das and others                  ....          Opposite Parties
                            Advocate(s) appeared in this case:-

                                          For Petitioner         : Ms. P.S. Mohanty, Advocate

                                          For Opposite Parties   : Mr. G. Mishra, Advocate
                                                                   For O.P. No.1

                                            CORAM: JUSTICE B.P. ROUTRAY
                                                            JUDGMENT

31st October 2025

B.P. Routray, J.

1. Heard Ms. P.S. Mohanty, learned Advocate for the Petitioner

and Mr. G. Mishra, learned Advocate for the Opposite Party No.1.

2. Present C.M.P. is directed against the judgment dated

11.12.2024 of the learned Additional District Judge, Anandapur passed

in F.A.O. No.01 of 2023.

3. Present Petitioner is Defendant No.2 in C.S. No.60 of 2008 now

pending in the court of learned Senior Civil Judge, Anandapur. The

Signed by: BASANTA KUMAR BARIK

Location: High Court of Orissa, Cuttack Date: 07-Nov-2025 10:53:40

Plaintiff, who is present Opposite Party No.1, filed the suit to rectify

the name of the vendee in the sale deed dated 27.11.1995 along with

consequential reliefs. At the stage of hearing, awaiting evidence from

the parties, the suit was dismissed for default on 18.11.2016. It needs to

be mentioned here that in the suit, Defendant No.2 has also raised

counter claim which was proceeded on despite the suit was dismissed

for default against the Plaintiff. Then a petition was filed under Order 9

Rule 9, C.P.C. to restore the suit before the learned trial court which

was rejected and challenging the same, F.A.O. No.01 of 2023 was

preferred before the court of Additional District Judge, Anandapur.

The Additional District Judge, Anandapur since allowed the F.A.O.

restoring the suit in favour of the Plaintiff, the same is challenged in

present C.M.P. by Defendant No.2.

4. The Plaintiff mainly took two grounds for restoration of the suit,

i.e. there was communication gap with his conducting lawyer as no

information could be given to him by the counsel and secondly, his

residence is around 80 kms. away from the court and as such he could

not know the fact of dismissal of the suit at appropriate time.

Signed by: BASANTA KUMAR BARIK

Location: High Court of Orissa, Cuttack Date: 07-Nov-2025 10:53:40

5. Learned Additional District Judge, Anandapur while dealing

with the appeal has vividly discussed both such grounds to arrive the

conclusion in favour of the Plaintiff and held that as per the assertions

made and materials brought on record, the same show a bonafide

reason in favour of the Plaintiff justifying sufficient cause for his

absence in participating the suit and since such reasons were beyond

the control of the Plaintiff, it would be appropriate to restore the suit.

6. In Sangram Singh vs. Election Tribunal, Kotah and another,

(1955) 1 SCC 323, it is observed as follows:-

"14. Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.

15. The existence of such a principle has been doubted, and in any event was condemned as unworkable and impractical by O'Sullivan, J. in Hariram Rewachand v. Pribhdas Mulchand [Hariram Rewachand v. Pribhdas Mulchand, 1944 SCC OnLine Sind CC 16 : AIR 1945 Sind 98 at p. 102]. He regarded it as an

Signed by: BASANTA KUMAR BARIK

Location: High Court of Orissa, Cuttack Date: 07-Nov-2025 10:53:40

indeterminate term "liable to cause misconception" and his views were shared by Wanchoo, C.J. and Bapna, J. in Rajasthan : Sewa Ram v. Misrimal [Sewa Ram v. Misrimal, 1951 SCC OnLine Raj 32 : AIR 1952 Raj 12 at p. 14]. But that a law of natural justice exists in the sense that a party must be heard in a court of law, or at any rate be afforded an opportunity to appear and defend himself, unless there is express provision to the contrary, is, we think, beyond dispute. See the observations of the Privy Council in Balakrishna Udayar v. Vasudeva Ayyar [Balakrishna Udayar v. Vasudeva Ayyar, 1917 SCC OnLine PC 32 : ILR (1917) 40 Mad 793 at p. 800] , and especially in Tom Boevey Barret v. African Products Ltd. [Tom Boevey Barret v. African Products Ltd., 1928 SCC OnLine PC 46 : (1929) 29 LW 72 : AIR 1928 PC 261 at p. 262] where Lord Buckmaster said : (Tom Boevey case [Tom Boevey Barret v. African Products Ltd., 1928 SCC OnLine PC 46 : (1929) 29 LW 72 : AIR 1928 PC 261 at p. 262] , SCC OnLine PC)

"... no forms or procedure should ever be permitted to exclude the presentation of a litigant's defence...."

Also Hari Vishnu case [Hari Vishnu Kamath v. Syed Ahmad Ishaque, (1954) 2 SCC 881 at pp. 907-908 : AIR 1955 SC 233 at p. 249] which we have just quoted.

In our opinion, Wallace, J. was right in Venkatasubbiah v. Daliparthi Lakshminarasimham [Venkatasubbiah v. Daliparthi Lakshminarasimham, 1925 SCC OnLine Mad 355 : AIR 1925 Mad 1274] in holding that : (SCC OnLine Mad para 5)

"5. One cardinal principle to be observed in trials by a Court obviously is that a party has a right to appear and plead his cause on all occasions when that cause comes on for hearing",

Signed by: BASANTA KUMAR BARIK

Location: High Court of Orissa, Cuttack Date: 07-Nov-2025 10:53:40

and that : (Venkatasubbiah case [Venkatasubbiah v. Daliparthi Lakshminarasimham, 1925 SCC OnLine Mad 355 : AIR 1925 Mad 1274] , SCC OnLine Mad para 5)

"5. ... It follows that a party should not be deprived of that right, and in fact the Court has no option to refuse that right, unless the Code of Civil Procedure deprives him of it."

(emphasis supplied)"

7. Further in Parimal vs. Veena alias Bharti, 2011 (3) SCC 545, it

is observed that, while deciding whether there is sufficient cause or

not, the court must bear in mind the object of doing substantial justice

to all the parties concerned and that the technicalities of the law should

not prevent the court from doing substantial justice and doing away the

illegality perpetuated on the basis of the judgment impugned before it.

8. Admittedly in the case at hand the parties are contesting on the

counter claim raised by the Defendants and therefore, it would

inappropriate on the part of the Plaintiff to deprive him from contesting

his case for such reliefs prayed by him. In the interest of justice since

the party is required to be given substantial opportunity to participate

in their case and no-one should be left unheard, preventing the Plaintiff

in pursuing his cause particularly when the Defendants are contesting

with the counter claim, would subserve the cause of the Plaintiff. Thus,

Signed by: BASANTA KUMAR BARIK

Location: High Court of Orissa, Cuttack Date: 07-Nov-2025 10:53:40

the appellate court has rightly directed to restore the suit allowing the

prayer of Plaintiff and the same is confirmed by this Court. However,

the cost as directed to be paid to the Defendants is enhanced to

Rs.6000/- to be paid by the Plaintiff to Defendants 1 to 3 equally.