IMPORTANT POINT
Setting aside ex-parte decree – Only by alleging that defendants should not suffer for laches of Advocate is not sufficient to take away valuable right accrued in favour of Plaintiff by ex-parte decree.

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