BENUDHAR ROUL Vs. ICHHABATI MOHANTY AND ORS.

JUDGEMENT

(1.) Heard Mr. R.N. Mohapatra for the petitioner and Mr. R.K. Mohanty for opp. party nos. 1 to 3. The other opposite parties have not entered appearance in spite of valid service of notice.

(2.) Order passed by the appellate court reversing the order of refusal to restore a suit decreed ex-parte, is assailed in this revision application. Certain undisputed facts are indicated in brief. Opp. party nos. 1 to 3, who were defendants 1, 2 and 8, were set ex-parte on 26.4.1984 in Title Suit No. 136 of 1982 filed by the petitioner as plaintiff in the court of the Second Sub-Judge, Cuttack. Subsequently, the suit was dismissed for non-appearance of plaintiff on 25.6.1987. Thereafter an application for restoration under Order 9, Rule 4, C.P.C. was filed, No notice of this application was given to the defendants who had been set ex-parte earlier. After the suit was restored, an ex-parte decree was passed on 13.9.1988. An application under Order 9. Rule 13, C.P.C. was filed by the concerned defendants, alleging infirmity on the ground of non-service of any notice before restoration. The application admittedly was filed beyond the prescribed period. After hearing the parties concerned, the learned Second Sub-Judge rejected the application on the ground that the misc. case was barred by limitation and sufficient grounds were not shown to warrant condonation. In appeal the said order of the learned Sub-Judge has been set aside apparently on two grounds, namely, (i) notice was imperative though application was under order 9, Rule 4, C.P.C., and (ii) in the interest of justice party should be heard before adjudication of rights. The order in appeal has been assailed by the petitioner on the grounds that so far as the first finding is concerned, it is contrary to law as laid down by this Court in Binod Kumar Agarwala and another Vs. Mst. Satyabhama Devi, AIR 1988 Orissa 44 and secondly on the premises that the delay was substantive, and no plausible reason was shown to justify such delayed presentation. I find from the order as passed in appeal that the appellate court was not justified in holding that notice is imperative under Order 9, Rule 4, C.P.C. It should have held that such a notice to the defendants who were set ex-parte was not necessary in view of decision in Binod Kumar's case (supra). I find that the appellate court has not elaborately dealt with the case of non-explanation for delayed presentation of restoration application. It has, however, rightly concluded that technicality should not stand on the way of substantive justice. It has awarded a comparatively high cost of Rs. 500.00 as a condition precedent to restoration. As observed by the Supreme Court in Collector, Land Acquisition, Anantnag and another Vs. Katiji and others, AIR 1987 SC 1353, refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. Similar view was expressed in : G. Ramegonda Major etc. Vs. The Special Land Acquisition Officer, AIR 1988 SC 897 The oft repeated requirements of explanation at each day's delay had been depreciated in these cases by the Supreme Court. This Court in the case of Surendra Mishra and others Vs. Judhistir Pani, 1990 (1) OLR 563 set aside the orders upholding challenge to maintainability of applications filed belatedly. While exercising revisional jurisdiction ultimately it is to be seen whether non-interference with the order impugned would cause miscarriage of justice. The appellate court has held that the ex-parte decree was to be set aside, though without elaborate reasons, I do not consider it to be a case where non-interference would cause miscarriage of justice. Therefore, I decline to interfere with the order as passed in appeal.

(3.) The suit is of the year 1982. Because of the intervening circumstances, it has not yet reached finality and in view of the order passed by the appellate court the suit is to be re-heard. The learned trial Judge would do well to dispose of the suit by 15th of Nov., 1990. The civil revision is accordingly disposed of. No costs. Revision dismissed.