Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Ori) 186

IN THE HIGH COURT OF ORISSA
K.R. Mohapatra, J.
Chinmaya Sahu & Anr. - Appellants
Versus
Amit Kumar Sahu - Respondent
CMP No. 804 of 2023
Decided On : 14-11-2023

Advocates:
Mr. Chitta Ranjan Nanda, Advocate, for the Appellant; Mr. Swarup Kumar Patnaik, Advocate, for the Respondent.

IMPORTANT POINT
The failure to file an application for condonation of delay when seeking to set aside an ex parte decree under Order IX Rule 13 CPC is a fatal procedural defect, leading to dismissal of the application.

Headnote:
CIVIL PROCEDURE - SETTING ASIDE EX PARTE DECREE - Order IX Rule 13 CPC, Article 123 of the Limitation Act - The court discussed the provisions of Order IX Rule 13 CPC, which allows for setting aside ex parte decrees under certain conditions, and Article 123 of the Limitation Act, which stipulates a thirty-day limitation period for such applications. The court emphasized that the absence of a condonation of delay application rendered the petition under Order IX Rule 13 CPC inadmissible, leading to the dismissal of the appeal.
Fact of the Case:
The Plaintiff filed a suit for eviction and injunction against the Defendants, who, despite appearing through counsel, failed to file a written statement and were set ex parte. An ex parte judgment was passed, which the Defendants learned about only later, prompting them to file a petition under Order IX Rule 13 CPC without an accompanying application for condonation of delay.
Finding of the Court:
The court found that the Defendants' application under Order IX Rule 13 CPC was filed beyond the statutory period of thirty days without a condonation of delay application, which was a critical procedural requirement. The court noted that the Defendants had ample opportunity to address the delay but failed to do so.
Issues: Whether the Defendants' application to set aside the ex parte decree was valid despite the absence of a condonation of delay application and whether the courts below erred in dismissing the application on this ground.
Ratio Decidendi: The court held that the provisions of Order IX Rule 13 CPC require a timely application to set aside an ex parte decree, and failure to file a condonation of delay application when the petition is filed beyond the statutory period is a valid ground for dismissal. The court reiterated that negligence on the part of the Defendants or their counsel does not justify setting aside the decree.
Final Decision: The court dismissed the CMP, affirming the decisions of the lower courts to reject the application under Order IX Rule 13 CPC due to the lack of a condonation of delay application.

JUDGMENT

K.R. Mohapatra, J.

This matter is taken up through hybrid mode.

2. Judgment dated 11th May, 2023 (Annexure-4) passed by learned 1st Additional District & Sessions Judge, Baripada, Mayurbhanj in F.A.O. No.5 of 2023 is under challenge in this CMP, whereby dismissing the appeal, learned appellate Court confirmed the order dated 14th October, 2022 (Annexure-3) passed by learned Additional Senior Civil Judge, Baripada in C.M.A. No.10 of 2022 (arising out of C.S. No.535 of 2015) dismissing an application under Order IX Rule 13 CPC.

3. Mr. Nanda, learned counsel for the Petitioners submits that the Plaintiff-Opposite Party filed the suit for eviction, mandatory and prohibitory injunction. The Defendants- Petitioners though appeared in the suit through their learned Advocate, but did not file the written statement and contest the suit. Accordingly, they were set ex parte and subsequently, ex parte judgment was passed on 24th February, 2022. The Defendants-Petitioners could not know about the ex parte judgment passed against them, as learned Advocate appearing on their behalf did not intimate the same. When the Defendants- Petitioners came to know about the ex parte judgment passed in the suit, they filed an application in C.M.A. No.10 of 2022 on 26th April, 2022. Although there was a delay in filing the petition under Order IX Rule 13 CPC, but learned Advocate appearing for the Petitioners on a bona fide impression that the period of limitation will reckon from the date of knowledge of the ex parte judgment by the Defendants-Petitioners, did not file any application under Section 5 of the Limitation Act for condonation of delay. Objections were filed stating that petition for condonation of delay was not filed. Taking note of the objection, learned trial Court dismissed the petition under Order IX Rule 13 CPC vide judgment dated 14th October, 2022 under Annexure-3. The sole ground of rejection of the petition under Order IX Rule 13 CPC was that the petition under Order IX Rule 13 CPC was not accompanied with an application for condonation of delay. Learned appellate Court also dismissed the appeal vide judgment under Annexure-4 on the same ground. Hence, this CMP has been filed.

4. It is his submission that for the latches of the Advocate, the party should not suffer. He further submits that there was a meager delay in filing the petition under Order IX Rule 13 CPC. As such, learned Courts below should not have adopted hyper technicality in rejecting the petition under Order IX Rule 13 CPC. The Defendants-Petitioners should have been given an opportunity to file an application under Section 5 of the Limitation Act for condonation of delay in filing the petition under Order IX Rule 13 CPC. This aspect was not taken into consideration by either of the Courts. He, therefore, prays for setting aside the impugned orders under Annexures-3 and 4 and to set aside the ex parte decree permitting the Petitioners to contest the suit.

5. Mr. Patnaik, learned counsel for the Opposite Party by filing a date chart submits that summons were issued to the Defendants on 14th October, 2015. They entered appearance on 18th February, 2016. Although they sought for adjournment to file written statement, but for the reasons best known, no written statement was filed by the Defendants. As such, vide order dated 22nd June, 2016, the Defendants were precluded from filing the written statement. The Defendants were set ex parte vide order dated 3rd April, 2019 and ex parte evidence was recorded. Argument of the suit was closed on 22nd February, 2022 and on 24th February, 2022, ex parte judgment was pronounced in the suit. Decree was drawn up on 10th March, 2022. In their application under Order IX Rule 13 CPC, which was filed on 26th April, 2022, the Defendants asserted that they came to know about the ex parte judgment and decree on 5th April, 2022. Thus, the application under Order IX Rule 13 CPC was filed without an application for condonation of delay.

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