HIMANSU SEKHAR SRICHANDAN Vs. SUDHIR RANJAN PATRA

JUDGEMENT

(1.) Order dtd. 5/12/2019 (Annexure-11) passed by learned Senior Civil Judge, Bhubaneswar in CMA No.31 of 2018 filed under Order IX Rule 13 CPC is under challenge in this CMP.

(2.) This CMP finds its genesis from CS No.1783 of 2011 filed by the Petitioner for declaration of his right, title, interest and possession over the suit schedule land as well as for a decree to declare that Defendant No.1 has no authority to alienate the suit land and also to declare that the two registered sale deeds bearing Nos.3530 and 3533 of 2000 are not binding on the Plaintiff as well as proforma Defendant Nos. 4 and 5. A relief of permanent injunction against Defendant Nos. 1 to 3 was also sought for. The suit schedule land pertains to Plot No. 133 to an extent of Ac.0.177 decimals and Plot No.134 to an extent of Ac.150 decimals under Khata No.291 situated in mouza Jharapada. The Opposite Party Nos.1 and 2 herein are Defendant Nos.2 and 3 in the suit. Defendant No.4 appeared on 4/12/2015 and filed his written statement alone in the suit. Defendant No. 5(a) on appearance filed a memo and adopted the written statement of Defendant No.4. The contesting Opposite Parties, namely, Defendant Nos. 2 and 3 appeared on 20/3/2012 and filed a petition for time to file their written statement. However, in spite of several adjournments they did not file written statement. Order dtd. 20/6/2012 of the suit reveals that Defendant Nos. 2 and 3 on their appearance through Sri Gyanaranjan Mohapatra, Advocate filed a petition for adjournment to file written statement which was rejected. On 6/11/2013 although Defendant Nos.2 and 3 filed hazira but they neither filed their written statement nor prayed for time for filing of the same. Subsequently on 24/11/2016 issues were settled. On 27/3/2017, the Plaintiff filed evidence in affidavit. On 4/7/2017, when the suit was called on for hearing, Defendant Nos. 2 and 3 were absent on call and were set ex parte. Thus, PW-1 was examined and exhibits 1 to 9 were admitted into evidence. In due course, the case was posted to 15/7/2017 for argument. On that date, Defendant Nos.l to 3 also filed a petition for adjournment for which the suit was adjourned to 17/7/2017, on which date, the argument was heard and the judgment was pronounced on 18/7/2017. The decree was drawn up subsequently and was signed on 27/7/2017.

(3.) Mr. Bhuyan, learned counsel for the Petitioner submitted that the limitation for filing an application under Order IX Rule 13 CPC is governed under Article 123 of the Limitation Act, which provides two modes for determining the starting point of limitation, i.e., (i) thirty days from the date of the decree, when the applicants have appeared in the suit; and (ii) thirty days from the date of knowledge when summons were not duly served. In the instant case, Defendant Nos.2 and 3 had entered appearance in the suit through their Advocate and in spite of several adjournments did not file their written statement. Thus, clause (i) of Article 123 of the Limitation Act has application for determining the starting point of limitation in the case. The ex parte judgment was passed on 19/7/2017 and the application under Order IX rule 13 CPC was filed on 13/3/2018. The averments made in the petition for condonation of delay as well as the evidence of the witnesses of Defendant Nos.2 and 3 reveal that on 4/1/2018, they came to know about the ex parte decree. In order to succeed in a Petition under Order IX Rule 13 CPC, the applicant has to show sufficient cause for his non-appearance on the date when the suit was called on for hearing. Explanation offered by Defendant Nos.2 and 3 does not disclose any cause of delay till 4/1/2018 much less about sufficient cause for their non-appearance on the date when the suit was called on for hearing. The ex parte hearing commenced from 4/7/2017 and the Defendant Nos.1 to 3 were set ex parte on that date. Subsequently, the judgment was pronounced on 19/7/2017 followed by signing of the decree on 7/7/2017. No explanation having been offered by Defendants No.2 and 3 for their non-appearance on the date when the suit was called on for hearing, learned Senior Civil Judge has committed gross error in allowing the petition under Order IX Rule 13 CPC. The evidence of PW-3, namely, Sri Gyanaranjan Mohapatra, learned counsel appearing for Defendant Nos.2 and 3 deposed that he suffered from ligament fracture from 29/7/2017 and recovered on 11/4/2018. He also stated in his evidence that he was under treatment and was bedridden during that period. In his evidence, he also deposed that he informed his clients, namely, Defendant Nos.2 and 3 about the judgment and decree after he came to know about the same on 3/1/2018. It is his evidence that he had instructed Defendant Nos.2 and 3 to remain present in the Court for filing written statement. Although the Defendant Nos. 1 to 3 were set ex parte on 4/7/2017, but no prayer for setting aside the ex parte order was made by Defendant Nos.2 and 3 although their counsel 2017 and 15rn July, 2017. As such, the inordinate delay caused in filing the petition under Order IX Rule 13 CPC should not have been condoned and the petition under Order IX Rule 13 CPC ought not have been allowed.