CMP No. 804 OF 2023 Page 1 of 7

IN THE HIGH COURT OF ORISSA AT CUTTACK

CMP No. 804 OF 2023

(An application under Articles 226 & 227 of the

Constitution of India)

*****

Chinmaya Sahu and another

…… Petitioners

-Versus-

Amit Kumar Sahu

.…… Opp. Party

Advocates appeared:

For Petitioners : Mr. Chitta Ranjan Nanda,

Advocate

For Opp. Party : Mr. Swarup Kumar Patnaik,

Advocate

CORAM :

MR. JUSTICE K.R. MOHAPATRA

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Heard and disposed of on 14.11.2023

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JUDGMENT

K.R. Mohapatra, J.

1.

This matter is taken up through hybrid mode.

2.

Judgment dated 11^th May, 2023 (Annexure-4) passed by

learned 1^st 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 14^th October, 2022 (Annexure-3)

passed by learned Additional Senior Civil Judge, Baripada in

Digitally Signed

Signed by: MADHUSMITA SAHOO

Designation: Senior Stenographer

Reason: Authentication

Location: High Court of Orissa, Cuttack

Date: 15-Nov-2023 18:48:56

Signature Not Verified

// 2 //

CMP No. 804 OF 2023 Page 2 of 7

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 24^th 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

26^th 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 14^th 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

Digitally Signed

Signed by: MADHUSMITA SAHOO

Designation: Senior Stenographer

Reason: Authentication

Location: High Court of Orissa, Cuttack

Date: 15-Nov-2023 18:48:56

Signature Not Verified

// 3 //

CMP No. 804 OF 2023 Page 3 of 7

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