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High Court Of Orissa
D. P. MOHAPATRA
RAMANATH MISHRA - Appellant
Versus
GANESWAR MISHRA - Respondent
CIV. REVN. 171 Of 1982
Decided On : 07/06/1985
CIVIL PROCEDURE CODE - S. 151 - RESTORATION OF DISMISSED APPLICATION - APPLICATION UNDER O. 9, R. 13, CIVIL P. C. - APPEALABILITY - INHERENT POWER OF THE COURT - S. 148, CIVIL P. C. - ENLARGEMENT OF TIME - APPLICATION FOR ENLARGEMENT OF TIME - MAINTAINABILITY.
Fact of the Case:
The petitioner filed an application under O. 9, R. 13, Civil P. C. for setting aside the ex parte decree which was registered as Misc. Case No. 10 of 1981. The Court below set aside the ex parte decree subject to payment of Rs. 100/- as cost by 15-7-1981. The petitioner could not comply with the direction for payment of cost by 15-7-1981, a petition was filed for further time to comply with the direction. The Court below extended the time till 20th July, 1981 for compliance with the aforesaid direction. On 20th July, 1981 the petitioner was unable to catch the train towards Puri which leaves the station at 8 A. M. When he reached Puri at about 2. 30p. M. he learned that the misc. case has been dismissed for non-payment of cost. The petitioner filed an application under S. 151, Civil P. C. for restoration of Misc. Case No. 10 of 1981 which was dismissed by the impugned order.
Finding of the Court:
The Court held that the Court below erred in rejecting the application on the ground that S. 151, Civil P. C. has no application to the case since under O. 43, R. 1 (d), Civil P. C. the petitioner has a right of appeal against the order rejecting his application under O. IX, R. XIII, Civil P. C. to set aside the ex parte decree. The Court further observed that it has indeed no jurisdiction to extend time on 15-7-1981.
Issues: Whether the Court below was justified in holding that the petition under S. 151, Civil P. C. for recalling the order dated 20-7-1981 dismissing the petition under O. IX, R. 13, Civil P. C. for petitioner's default in payment of cost to the opposite party No. 1 was not maintainable.
Ratio Decidendi: The Court held that S. 148 of the Code expressly provides -"where any period is fixed or granted by the Court for doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired." O. IX, R. XIII, Civil P. C. empowers the Court which passed decree ex parte against the defendant to set aside the said decree if satisfied about the existence of the conditions mentioned in the provision, upon such term as to costs, payment into Court or otherwise as it thinks fit. Thus the direction of the Court to the petitioner to pay a sum of Rs. 100/- towards costs to the opposite party No. 1 by 15-7-1981 comes within the terms "for doing of any act prescribed or allowed by this Code" in S. 148. Thus there can be little doubt that S. 148, Civil P. C. was applicable to the application filed by the petitioner on 21-7-1981 to enlarge the time for payment of costs. Further, the position has to be accepted as well established that even if the direction to pay the costs as a condition for setting aside the ex parte decree does not strictly come within the purview of S. 148, Civil P. C. , still the Court has ample jurisdiction under S. 151 of the Code to enlarge the time in an appropriate case.
Final Decision: The revision petition is allowed, the order dated 8-12-1981 of the Additional Subordinate Judge, Puri dismissing Misc. Case, No. 61 of 1981 as not maintainable, is set aside. The trial Court is directed to dispose of the case on merit according to law. Both the parties will bear their respective costs of this proceeding.
D. P. MOHAPATRA, J.
( 1 ) ONE of the defendants in original suit No. 168 of 1976-I of the Court of the Munsif, Puri has filed this application under S. 115 of the Civil P. C. being aggrieved by the order dated 8-12-1981 rejecting his application to restore Misc. Case No. 10 of 1981, under O. 9, R. 13, Civil P. C. The gist of the relevant facts leading to this proceeding may be stated thus: The opposite party No. 1 filed the above mentioned suit against the petitioner and opposite party Nos. 2 and 3 for declaration of title and for recovery of possession in respect of Ac. 0. 06 decimals of land in plot No. 3521 under Khata No. 941 of village Sripurusottampur in the district of Puri. The plaintiff-opposite party No. 1 based his title to the disputed land on the registered sale deed dated 8-4-1972 said to have been executed by opposite party No. 3, Brahmananda Misra, son of Kasinath Misra for a consideration of Rs. 100/ -. The petitioner-defendant No. 1, while denying the allegations made by the opposite party No. 1 took the stand that opposite party No. 3 is not the son of Kasinath Misra, but he is the son of one Binayak Misra. Kasinath Misra, the father of the petitioner, had a son named Brahmananda Misra who died long since. The petitioner pleaded that Brahmananda Misra said to be the executant of sale deed in favour of the opposite party No. 1 and had no right, title and interest in the suit property.
( 2 ) THE suit was posted for hearing to 9-1-1981. On that date, the petitioner, the main contesting defendant, was suffering from typhoid and could not attend the Court. The suit was decreed ex parte on 12-1-1981. The petitioner filed an application under O. 9, R. 13, Civil P. C. for setting aside the ex parte decree which was registered as Misc. Case No. 10 of 1981. After hearing both the parties, the Court below by his order dated 10-7-1981 set aside the ex parte decree subject to payment of Rs. 100/- as cost by 15-7-1981. The operative portion of the order reads as follows :-"in the result, the ex parte decree against the defendant-petitioner is set aside subject on his payment of cost of Rs. 100/- to the plaintiff by 15-7-1981, as condition precedent, failing which the ex parte decree will stand. Put up on 15-7-1981 for further orders. "since the petitioner could not comply with the direction for payment of cost by 15-7-1981, a petition was filed for further time to comply with the direction. On consideration the Court below extended the time till 20th July, 1981 for compliance with the aforesaid direction. According to the petitioner on 20th July, 1981 when he was coming from his village Birapurusottampur to board the train at Delang Railway Station, a distance of about 8 miles, there was heavy rain due to which the village road became difficult to negotiate. Due to this reason, the petitioner was unable to catch the train towards Puri which leaves the station at 8 A. M. When he reached Puri at about 2. 30p. M. he learned that the misc. case has been dismissed for non-payment of cost. On the very next day i. e. 21-7-1981 a petition under S. 148 read with S. 151, Civil P. C. was filed on behalf of the petitioner to permit him to deposit the cost on that day. The Court below by his order dated 11-8-1981 dismissed the said petition as not maintainable. Thereafter the petitioner filed an application under S. 151, Civil P. C. for restoration of Misc. Case No. 10 of 1981 which was dismissed by the impugned order. Hence, the revision petition.
( 3 ) THE petitioner filed application under S. 151, Civil P. C. (Misc. Case No. 61 of 1981) giving rise to the present proceeding narrating the facts stated in the foregoing paragraphs. The plaintiff-opposite party No. 1, as the impugned order reveals, did not file any counter disputing the facts mentioned in the petition and conceded that the facts mentioned in the petition might be true. He contested the proceeding solely on the ground that the application under S. 151, Civil P. C. is
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