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Shankar Prasad Pandey Vs. Mst. Bhanumati Toppo - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 352 of 1982
Judge
Reported inAIR1986Ori91
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 9, Rule 9
AppellantShankar Prasad Pandey
RespondentMst. Bhanumati Toppo
Appellant AdvocateS.S. Basu, Adv.
Respondent AdvocateM. Patra, Adv.
DispositionRevision allowed
Excerpt:
.....the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the..........granted interim injunction to the plaintiff. the present petitioner who is the defendant in the suit filed a revision against the said order of the district judge, but the high court directed to . dispose of the suit before summer vacation. thus, while the suit was fixed to 2-4-1981 for hearing, the plaintiff filed a petition that both she herself and her advocate were suffering and, therefore, the matter should be adjourned. this application was rejected and since none appeared for the plaintiff, the suit was dismissed for default. we are concerned with this order of dismissal in this revision.3. the plaintiff thereafter filed an application under order 9, rule 9, of civil p. c. which was registered as misc. case no. 64 of 1981, praying to set aside the order of dismissal on the.....
Judgment:
ORDER

G.B. Patnaik, J.

1. This revision is directed against the order of the Additional District Judge, Sambalpur, in Miscellaneous Appeal No. 73/5 of 1981/82 restoring Title Suit No. 14 of 1980 which was dismissed for default. The suit in question was one for a declaration that the defendant is not entitled to evict or dispossess the plaintiff from the suit house in Execution Case No. 1 of 1975 and for injunction against the defendant. The Execution Case No. 1 of 1975 arose out of a decree in House Rent Control Case No. 46 of 1972. Though for the purpose of deciding this revision, it is not necessary to look to the history of the litigation, for mere understanding of this case, the short facts may be narrated hereunder.

2. The present petitioner who is the landlord filed an application for eviction of the tenant one Miss P. Tigga bearing H. R. C. Case No. 46 of 1972 on the ground that the tenant had sublet the house in contravention of the terms of the agreement and further the landlord required the house for his own use. This eviction proceeding was dismissed by the House Rent Controller. On appeal being filed by the landlord in H. R. C. Appeal No. 2 of 1974, the appellate authority allowed the appeal and passed an order of eviction. The tenant approached the High Court in O. J. C.

No. 1179 of 1974 and the High Court dismissed the writ petition by order dt. 19-10-1976, but permitted the tenant to remain in the house till 31-3-1977 and it was directed that she should vacate the house on or before that date. The tenant filed a memo on 11-4-1977 in the executing Court intimating the fact that she had vacated the house on 1-4-1977, but one Haldhar Toppo filed a petition under Section 47 read with Order 21,R. 58 of the Civil P. C. before the executing Court contending that he was a tenant after 1-4-1977 and could not be evicted in the execution proceeding. This was dismissed by the executing Court as well as by the appellate Court. Thereafter, his mother filed a petition under Section 47, read with Order 21, Rule 58 of the Civil P. C. on the self-same allegations as her son praying that she should be allowed to continue as a tenant. This misc. case was dismissed and an appeal against the same was also dismissed. A further revision was carried to the High Court which was dismissed as withdrawn by order dt. 19-2-1980. Thereafter, the mother filed the present suit (Title Suit No. 14 of 1980) for a declaration, as aforesaid. She also filed an application, for interim injunction which was registered as Misc. Case No. 36 of 1980. The trial Court dismissed the prayer for interim injunction, but on appeal, the District Judge granted interim injunction to the plaintiff. The present petitioner who is the defendant in the suit filed a revision against the said order of the District Judge, but the High Court directed to . dispose of the suit before summer vacation. Thus, while the suit was fixed to 2-4-1981 for hearing, the plaintiff filed a petition that both she herself and her advocate were suffering and, therefore, the matter should be adjourned. This application was rejected and since none appeared for the plaintiff, the suit was dismissed for default. We are concerned with this order of dismissal in this revision.

3. The plaintiff thereafter filed an application under Order 9, Rule 9, of Civil P. C. which was registered as Misc. Case No. 64 of 1981, praying to set aside the order of dismissal on the ground that she was ill from 31-3-1981 to 5-4-1981 and that she was under the treatment of a Kaviraj. A certificate from the said Kaviraj under whom she was being treated was also filed along with the petition. The present petitioner who was the defendant in the said suit filed objection to the same. The trial Court dismissed the application by its order dt. 23-10-1981. The plaintiff-opposite party thereafter filed an appeal which was registered as Miscellaneous Appeal No. 73/5 of 1981/82. The learned Additional District Judge by his order dt. 27th March 1982, allowed the appeal and restored the suit. Hence the present revision.

4. Mr. Basu, the learned counsel for the petitioner, submits that the order of the Additional District Judge allowing restoration is illegal, inasmuch as on the evidence adduced by the plaintiff, no reasonable man can come to the conclusion that the plaintiff has proved that she was prevented from appearing in Court due to her illness. Mr. Patra, the learned counsel for the opposite party, however, submits that the learned Additional District Judge having exercised his discretion and having restored the suit, this Court in its revisional jurisdiction will not interfere with the same and the plaintiff should be permitted to pursue the suit.

5. The sole question for consideration is whether on the facts and circumstances, the learned Additional District Judge was justified in coming to the conclusion that the plaintiff had been able to establish that she was prevented by sufficient cause from appearing in the Court on the date when the default occurred. Though in the application for adjournment filed on 2-4-1981, the grounds taken were that the advocate for the plaintiff and the plaintiff herself were ill, but in the application for restoration, advocate's illness was not taken as a ground for the default and the only ground which the plaintiff urged was her own illness and in support of the same, a medical certificate of the attending Kaviraj was filed. The said Kaviraj was also examined as a witness. The certificate purports to have been signed by one Kaviraj Sri Shankar Rath and it states that Srimati Bhanumati Toppo (present plaintiff) was suffering from fever and dysentery from 31-3-1981 to 5-4-1981 and she was advised to take rest. Though the said Kaviraj gave the certificate on 14-4-1981 to the aforesaid effect, while deposing in the Court, in cross-examination he stated : --

'.....I cannot read out the certificate andI cannot say what I have written.....'

The recording Judge notes in the deposition that 'the witness could not read the nature of the disease.' This being the evidence of the attending Kaviraj, in my opinion, the Additional District Judge committed serious error in coming to the conclusion that the plaintiff has been able to establish her illness which was the cause for her non-appearance in Court on 2-4-1981, the date on which the suit was dismissed for default. The learned Additional District Judge came to hold that the fact that he was unable to read the certificate which was in English would not take away his qualification as a Kaviraj and in villages, Kaviraj with such little knowledge in English was not rare. It is nobody's case that the certificate in English was written by somebody else and the Kaviraj merely appended the signature. On the other hand, the Kaviraj stated in his examination-in-chief that he had given that certificate. Therefore, a person who gives a certificate cannot have any justifiable reason for not being able to read the same. In my opinion, no reasonable man can rely on the evidence of such Kaviraj and the so-called certificate issued by him. The appreciation of evidence made by the learned Additional District Judge is perverse. The; plaintiff's only ground of her non-appearance on the date when the suit was dismissed for default being her illness and the evidence of Kaviraj and the certificate being taken out of consideration, there is on record no material on the basis of which a Court can come to a conclusion that the plaintiff has been able to establish the ground for her non-appearance. In my opinion, the trial Court was justified in holding that there was no sufficient cause for the plaintiff for her non-apperance in the Court when the case was dismissed for default and the Additional District Judge illegally reversed that conclusion on a thorough misappreciation of the evidence on record.

6. There is no dispute with Mr. Patra's submission that ordinarily this Court does not exercise its jurisdiction under Section 115, of Civil P. C. to interfere with an order restoring a suit. But this is one of those rare cases where there is no other alternative than to interfere with the order of restoration. The High Court does not ordinarily interfere with an order of the lower Court passed in its discretion, but the discretion must be a judicial discretion and not an arbitrary or whimsical one. Where j the High Court comes to the conclusion that the Court below has not exercised its discretion judicially, or has acted arbitrarily or in a perverse manner, then the High Court should interfere with the order and rectify the mistake committed by the lower Court. I am firmly of the opinion that this is one such case where the learned Additional District Judge has not exercised any judicial discretion, but has restored the suit by coming to a conclusion which no reasonable man can form, on the basis of the materials on record.

7. In the result, therefore, I set aside the order of the Additional District Judge dt. 27-3-1982 passed in Miscellaneous Appeal No. 73/5 of 1981/82 and confirm the order of the Subordinate Judge, Sambalpur, dt. 23-10-1981 in Miscellaneous Case No. 64 of 1981. The Civil Revision is accordingly allowed, but in the facts and circumstances of the case, there would be no order for costs.


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