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Dhoba Naik and ors. Vs. Sabi Dei - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 100 of 1972
Judge
Reported inAIR1973Ori182; 39(1973)CLT63
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 9, Rule 13; Limitation Act, 1908 - Sections 5
AppellantDhoba Naik and ors.
RespondentSabi Dei
Appellant AdvocateS.N. Kar, Adv.
Respondent AdvocateD.S. Nanda, Adv.
DispositionPetition dismissed
Cases ReferredRadha Mohan Datt v. Abbas All Biswas
Excerpt:
.....has failed to show sufficient cause for setting aside the ex parte decree by failing to explain her absence on 19-4-71, the date of ex parte hearing. she was bedridden from 25-4-1971 to 5-8-71. the suit was first of all posted for ex parte hearing on 19-4-1971. it is argued on behalf of the petitioners that the opposite party must satisfy the court that there was sufficient reason for her non-appearance on 19-4-71 which she has failed to do by merely proving the illness from 25-4-1971 to 5-8-1971'.true, there is no specific averment of any reason for her non-appearance on 19-4-1971, but here again some self-evident inferences are possible......p. c. opined as follows:'the expression 'case' is a word of comprehensive import: it includes civil proceedings other than suits, and is not restricted by anything contained in the section to the entirety of the proceeding in a civil court. to interpret the expression 'case' as an entire proceeding only and not a part of a proceeding would be to impose a restriction upon the exercise of powers of superintendence to which the jurisdiction to issue writs and the supervisory jurisdiction are not subject, and may result in certain cases in denying relief to an aggrieved litigant where it is most needed, and may result in the perpetration of gross injustice.'in the case of baldevdas shivlal v. filmistan distributors (india) pvt. ltd. air 1970 sc 406, the supreme court has again.....
Judgment:
ORDER

S.K. Ray, J.

1. The petitioners filed a suit (O. S. No. 122 of 1969) against the opposite party defendant for declaration of title confirmation of possession and permanent injunction. The opposite party having been served with a notice of the suit appeared and filed her written statement. By order dated 10-3-1971 the opposite party was set ex parte. The suit was adjourned for a number of times for ex parte hearing and ultimately it was taken up for ex parte hearing on 19-4-71. The judgment was ultimately delivered on 30-4-1971 after two adjournments by which the suit was decreed ex Parte. On 9-8-1971, the defendant opposite party filed an application under Order 9 Rule 13 C. P. C. to set aside the ex parte decree with a petition under Section 5 of the Limitation Act for condonation of delay in presenting this application for setting aside the ex parte decree. Thereupon Misc. case No. 32 of 1971 was registered. Notice of this application for setting aside the ex parte decree was served on the plaintiff petitioners, who contested the Misc. Case. By order dated 29-1-4072 the Additional Munsif. Puri allowed this Misc. Case, set aside the ex parte decree by awarding cost of Rs. 23/- to the plaintiffs. The cost was deposited by the defendant within the time allowed by the Munsif.

2. The only question urged in this revision Is that the application under Order 9 Rule 13. C. P. C. is barred by limitation inasmuch as the delay between 5-8-1971 to 8-8-1971 (both days inclusive) has not been explained day by day, and that the opposite party has failed to show sufficient cause for setting aside the ex parte decree by failing to explain her absence on 19-4-71, the date of ex parte hearing.

3. The learned counsel for the defendant opposite party raised a preliminary objection that the disposal of the application under order 9, rule 13 C. P. C. by setting aside the ex parte decree is not a 'case' decided within the meaning of Section 115, C. P. C. and as such the present revision application is not maintainable.

4. I will deal with the preliminary objection in the first instance, because if this succeeds the contentions of the petitioners need not be gone into.

Dealing with the expression 'case' in Section 115, Civil P. C. the Judicial Committee of the Privy Council expressed its opinion thus:

'No definition is to be found in the Code of the word 'case'. It cannot in their Lordships' view be confined to a litigation in which there is a plaintiff who seeks to take a particular relief in damages or otherwise against the defendant who is before the Court.'

The Supreme Court in the case of S.S. Khanna v. F. J. Dillon, AIR 1964 SC 497 dealing with the expression 'case' decided in Section 115, Civil P. C. opined as follows:

'The expression 'case' is a word of comprehensive import: it includes civil proceedings other than suits, and is not restricted by anything contained in the section to the entirety of the proceeding in a Civil Court. To interpret the expression 'case' as an entire proceeding only and not a part of a Proceeding would be to impose a restriction upon the exercise of powers of superintendence to which the jurisdiction to issue writs and the supervisory jurisdiction are not subject, and may result in certain cases in denying relief to an aggrieved litigant where it is most needed, and may result in the perpetration of gross injustice.'

In the case of Baldevdas Shivlal v. Filmistan Distributors (India) Pvt. Ltd. AIR 1970 SC 406, the Supreme Court has again observed:--

'The expression 'case' is not limited in its import to the entirety of the matter in dispute in an action. The expression 'case' is a word of comprehensive import: it includes a civil proceeding and is not restricted by anything contained in Section 115 of the Code the entirety of the proceeding in a Civil Court. To interpret the expression 'case' as an entire proceeding only and not a part of the proceeding imposes an unwarranted restriction on the exercise of Powers of superintendence and may result in certain cases in denying relief to the aggrieved litigant where it is most needed and may result in the perpetration of gross injustice. But every order of the Court in the course of a suit does not amount to a case decided. A case may be said to be decided if the Court adjudicates for the purposes of the suit some right or obligation of the parties in controversy; every order in the suit cannot be regarded as a 'case' decided within the meaning of Section 115 by overruling an objection to a question put to a witness and allowing the question to be Put, no case is decided.'

It thus appears that the meaning of the expression 'case' must be sought for in the nature of the jurisdiction conferred by Section 115, and the purpose for which the High Courts were invested with it. The power conferred on High Courts under Section 115, Civil P. C. is analogous with the jurisdiction to issue the high prerogative writs and the power of supervision under the Charter Act and its successor provisions in the Constitution Acts. Therefore there would be no warrant for equating the expression 'case' with a suit, but where there are independent proceedings arising out of a case, such as a proceeding to restore a case dismissed in default or to set aside a decree ex parte, for which the legislature has pro-vided an independent remedy or different procedure, such proceeding may be a 'case' within the meaning of the Section. In a proceeding to set aside the ex parte decree under Order 9 Rule 13 C. P. C., a different category of rights and obligations are out in issue and adjudicated upon other than the issues in controversy in the suit and the question of jurisdiction of the Court also is involved depending as it does upon establishment of some basic proved facts. Consequently such a proceeding under Order 9 Rule 13 Civil P. C. would be a 'case' decided within the meaning of Section 115 Civil P. C. This view apart from being in accord with the view of Supreme Court extracted above, has also received acceptance in a number of judicial decisions of which I only refer to one namely, the case of Radha Mohan Datt v. Abbas All Biswas, AIR 1931 All 294- There is therefore, no merit in the preliminary objection.

5. The next question to be considered is whether the application under Order 9. Rule 13, Civil P. C. filed on 9-8-1971 is barred by limitation. The period prescribed for such an application is 30 days. Therefore, it should have been filed on or before 30-5-1971. Cause for non-filing of the application under Order 9 Rule 13 Civil P. C. has been set out in the petition under Section 3 of the Limitation Act as follows:--

'That owing to acute rheumatic pains and infirmities due to bloodlessness the defendant was confined to bed and was under medical treatment from 25-4-1971 till 5-8-1971. She completely forgot about the suit during this period as a result of which she could not inform her lawyer to take steps in the suit on the date of hearing. Her husband too was ailing throughout the period. For the above reasons which were beyond her control the suit was decreed ex parte against her on 30-4-1971. The defendant after recovery came to know of this decree on 3-8-1971. By this time the period of limitation for filing a petition under Order 9 Rule 13 Civil P. C. is long over but this is all due to unavoidable circumstances.'

It is said that the four days' delay from 5-8-1971 to 9-8-1971' has not been explained. The doctor has supported the assertions that the opposite party was bedridden from 25-4-1971 to 5-8-1971. It is common knowledge that when a patient, as old as 60 years is absolutely confined to bed for about 3 and 1/2 months, would perforcedly require further recuperative rest before she can be expected to move normally. The opposite Party took only 3 days to gain strength to be able to travel from her village to town to file the petition under Order 9, Rule 13, Civil P. C. In absence of proof of any deliberate laches on the part of the opposite party, this explanation for the delay from 5-8-1971 is self-evident from the facts proved in this case, though it has not been expressly stated. The Additional Munsif has rightly condoned delay in filing the application under Order 9, Rule 13. C. P. C.

6. It is next to be seen if the opposite party has been able to satisfy the court that she was prevented by sufficient cause from appearing on the date when the suit was called on for hearing. The reasons shown are contained in paragraphs 2. 3 and 4 of the petition for restoration. She was bedridden from 25-4-1971 to 5-8-71. The suit was first of all posted for ex parte hearing on 19-4-1971. It is argued on behalf of the petitioners that the opposite party must satisfy the Court that there was sufficient reason for her non-appearance on 19-4-71 which she has failed to do by merely proving the illness from 25-4-1971 to 5-8-1971'. True, there is no specific averment of any reason for her non-appearance on 19-4-1971, but here again some self-evident inferences are Possible. As the evidence stands, the opposite Party became bedridden with effect from 25-4-1971. Witness No. 3 for the opposite party has said that his wife (opp. party) was suffering from rheumatism on the date fixed for hearing i. e. 19-4-1971. This witness who is aged 70 years is the husband of opposite party who is aged 60 years. The evidence of the doctor and opposite party is that she became bedridden with effect from 25-4-1971. The lower Court seems to have accepted the testimony of the witness No. 3 for the opposite Party that the latter was suffering from rheumatism on 19-4-1971 though she became bedridden with effect from 25-4-71 presumably on account of the aggravation of the same illness. This Is a likely inference from a cumulative appraisal of the evidence on record taking into account the extreme old age of the opposite patty and her husband, which appears to have been drawn by the trial Court however erroneous it may be. It cannot be said that the basis for such inference is absolutely lacking. In the circumstances acting under Section 115 Civil P. C. I do not think it proper to differ from the conclusion of the lower court that sufficient cause has been shown by the opposite party as required under Order 9 Rule 13 Civil P. C. For the aforesaid reasons I am not inclined to interfere with the order impugned.

7. I, however, feel that the award of costs by the trial Court was very low. I would, therefore direct that in addition to the costs paid by the opposite Party as per the direction of the Court below, further costs of Rs. 50/- will be paid to the counsel for petitioners Mr. S.N. Kar within three weeks from today, and In default of such payment the petition under Order 9, Rule 13, Civil P. C. shall stand dismissed without further reference to the Bench. Apart from the aforesaid costs there will be no other costs in this revision.

The Civil Revision is accordingly dismissed as aforesaid.


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