Judicial discretion under Order IX Rule 4 C.P.C. is crucial, and a liberal approach should be taken to allow restoration of suits for effective adjudication, especially when circumstances affecting non-appearance are substantiated.

ORDER

1. This matter is taken up through hybrid mode.

2. Order dated 29th September, 2014 (Annexure-4) passed by learned Civil Judge (Senior Division), Jaleswar in C.M.A. No.28 of 2014 (arising out of T.S. No.143 of 2001/C.S. No.811 of 2010) is under challenge in this CMP, whereby an application filed under Order IX Rule 4 C.P.C., has been dismissed.

3. Mr. Dash, learned counsel submits that the Petitioners being not properly advised, had also filed F.A.O. No.565 of 2014, which was dismissed as not maintainable vide order dated 29th October, 2014 passed by learned District Judge, Balasore (Annexure-5).

3.1 It is his submission that T.S. No.143 of 2001 was filed for declaration of right, title and interest over the suit land. The suit was dismissed against Defendant Nos.3, 4 and 10 on 4th September, 2010 due to failure of the Petitioners to take steps for issuance of notice on them. Subsequently, the suit was dismissed on 22nd September, 2010 for default.

4. Mr. Dash, learned counsel submits that the Plaintiffs- Petitioners had engaged Mr. Sovan Kumar Das, learned counsel to conduct their case. However, due to joining of Mr. Das, in the Odisha Superior Judicial Service, he entrusted the matter (suit) to his associate, namely, Mr. Santanu Kumar Panda to look after. As Mr. Panda did not intimate about the aforesaid orders to the Petitioners, timely step could not be taken for restoration of the suit. Further, the Petitioner No.1, who was looking after the suit, fell seriously ill for a prolonged period and was under treatment of Dr. A.C. Mishra. The suit was subsequently transferred to the Court of learned Civil Judge (Senior Division), Jaleswar and was re-numbered as C.S. No.811 of 2010, which was also not within the knowledge of the Petitioners. It is further submitted that the Petitioners had filed W.P.(C) No.9419 of 2003 assailing order dated 10th May, 2002 passed by learned Ad-hoc Additional District Judge, FTC, Balasore in Misc. Appeal No. 66 of 2001, which was filed against the order dated 11th May, 2001 passed by learned Civil Judge (Senior Division), Balasore in Misc. Case No.83 of 2001 (arising out of T.S. No.143 of 2001) (the present suit).

5. Upon receipt of a letter from the conducting counsel of the said writ petition, enquiring about the status of the suit, the Petitioner No.1 made an enquiry and came to know about the dismissal of the suit. As such, an application under Order IX Rule 4 C.P.C. was filed for restoration of the suit, which was registered as C.M.A. No.28 of 2014. The said application was rejected vide order dated 29th September, 2014 (Annexure-4) by learned Civil Judge (Senior Division), Jaleswar holding that the Petitioners failed to show sufficient cause for their non-appearance on the date, to which the suit was posted. Thereafter, the Petitioners being not advised properly preferred F.A.O. No.565 of 2014, which was also dismissed, as not maintainable by order dated 29th October, 2014 (Annexure-5). Hence, this CMP has been filed.

6. Mr. Dash, learned counsel for the Petitioners further submits that the Petitioner No.1 was looking after the suit. In view of the facts and circumstances narrated above, the non- appearance of the Petitioners on the date, to which the suit was posted, was not intentional and was bona fide. He further stated that Dr. A.C. Mishra, who was treating Petitioner No.1, issued medical certificate (Ext.3) observing that the Petitioner No.1 was under his treatment from 1st May, 2010 to 18th March, 2014. It was also observed that the Petitioner No.1 needed prolonged treatment. Learned trial Court being hyper technical, did not