[Cites 2, Cited by 0]
Orissa High Court
Indrajeet Mohanty And Another vs Khirod Chandra Jena ..... Opposite ... on 21 April, 2026
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.655 of 2026
Indrajeet Mohanty and another ..... Petitioners
Represented by Adv. -
Suvashish Pattanaik
-versus-
Khirod Chandra Jena ..... Opposite Parties
Represented by Adv. -
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR
MOHAPATRA
ORDER
21.04.2026
Order No.
01. 1. These matters are taken up through Hybrid mode.
2. Heard learned counsel for the Petitioners. Perused the CMP
application as well as the prayer made therein.
3. By filing the present CMP application under Article 227 of the
Constitution of India, the Petitioner, who happens to be the
defendant, in T.S. No.358 of 1999, now pending in the court of
learned Civil Judge Senior Division and who happens to the
respondent in FAO No.114 of 2025, disposed of by the learned
District Judge, Khordha has approached this Court being aggrieved
by the judgment dated 30.03.2026 passed by the First Appellate
Court in the above noted FAO.
4. Learned counsel for the Petitioners at the outset contended
that the plaintiff-Opposite Party was Appellant before the First
Appellate Court against order dated 20.08.2025 passed in CMA
No.26 of 2023, which arises out of T.S. No.358 of 1999. He further
contended that initially the plaintiff filed a suit for mandatory
injunction. However, the suit was dismissed due to non-prosecution.
Learned counsel for the Petitioners further contended that the
plaintiff filed CMA No.26 of 2023 with a delay of one year and
sixteen days. The learned trial Court initially dismissed CMA No.26
of 2023 filed under Order-9, Rule-9 of the CPC vide its order dated
20.08.2025.
5. He further contended that being aggrieved by the order passed
by the learned trial Court, the plaintiff preferred an appeal bearing
FAO No.114 of 2025 before the learned First Appellate Court. The
learned First Appellate Court by virtue of a detailed judgment dated
30.03.2026, after taking note of the contentions raised by both sides,
was pleased to condone the delay and accordingly the CMA
application under Order-9, Rule-9 of the CPC has been allowed and
the suit has been restored to file. Being aggrieved by such judgment,
the respondent before the First Appellate Court has approached this
Court by filing the present CMP application.
6. Learned counsel for the Petitioners at the outset contended
that although there was a delay of more than one year and the same
has not been properly explained by the plaintiff in his application for
condonation of delay, however, the learned First Appellate Court
illegally and arbitrarily allowed the application for condonation of
delay and the order passed by the learned trial Court dismissing the
application under Order-9, Rule-9 of the CPC of the plaintiff has
been set aside by the learned First Appellate Court. He further
contended that the plaintiff has failed to provide proper justification
and explanation for the delay caused in filing the application under
Order-9, Rule-9 of the CPC. Despite such lacunae in the application
of the plaintiff, the learned First Appellate Court allowed the appeal
and the order of the learned trial Court dismissing the application
under Order-9, Rule-9 of the CPC has been set aside. In the
aforesaid factual backdrop, learned counsel for the Petitioners
contended that the order passed by the learned First Appellate Court
is unsustainable in law. Hence, the same is liable to be set aside.
7. Having heard the learned counsel for the Petitioners, on a
careful examination of the background facts as well as the impugned
judgment dated 30.03.2026, this Court observes that the learned
First Appellate Court has vividly discussed the factual background
of the pending suit. The learned court has also discussed the grounds
taken by the plaintiff in his application under Order-9, Rule-9 of the
CPC. On a careful scrutiny of the impugned judgment dated
30.03.2026, this Court found that admittedly there was delay in
approaching the learned trial Court for setting aside the ex-parte
order by filing an application under Order-9, Rule-9 of the CPC.
Though the same has been explained by the plaintiff and such
explanation has been accepted by the learned First Appellate Court,
however, it cannot be said that the plaintiff was prompt in taking
steps for setting aside the ex-parte order. Admittedly, there was
delay. Although the learned First Appellate Court, in the larger
interest of justice, has allowed the application for setting aside the
ex-parte order and to provide an opportunity to the plaintiff,
however, this Court observes that the defendant should have been
adequately compensated for the delay caused due to inaction on the
part of the plaintiff in approaching the Court expeditiously. In view
of the aforesaid position, while not interfering with the impugned
judgment dated 30.03.2026, this Court deems it proper to impose
additional cost on the plaintiff for the delay in approaching the Court
in filing the application under Order-9, Rule-9 of the CPC. Hence,
this Court while upholding the judgment dated 30.03.2026 modifies
the same to the extent that the plaintiff shall pay a cost of Rs.2,500/-
to the defendant within a period of two weeks from the date of
communication of a copy of today's order by the Petitioners to the
learned trial Court.
8. With the aforesaid modification, the CMP application stands
disposed of. Since this order is being passed in the absence of the
Opposite Party, liberty is granted to the Opposite Party to seek for
modification and/or variation of today's order in the event it is found
that the defendant-Petitioner has suppressed any material facts or
misled the court in any manner.
( Aditya Kumar Mohapatra )
Judge
S.K. Rout
Digitally Signed Page 4 of 4.
Location: High Court of Orissa, Cuttack
Date: 23-Apr-2026 10:33:22
