IN THE HIGH COURT OF ORISSA AT CUTTACK

C.M.P. No.1262 of 2024

An application under Articles 226 and 227 of the Constitution of

India)

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Santosh Kumar Panda ...… Petitioner

-Versus-

Kulamani Panda & Another ..…. Opp. Parties

Advocate(s) appeared in this case:-

_______________________________________________________

For Petitioner : Mr. S. Sahu, Advocate

For Opp. Parties : Mr. B.N. Panda, Advocate

___________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA

J U D G M E N T

20thof August, 2025

SASHIKANTA MISHRA, J.

The petitioner questions the correctness of order

dated 08.08.2024 passed by the learned District Judge, Jajpur in dismissing Civil Revision No.6 of 2023 filed by him whereby, the order passed by the trial Court restoring

the suit dismissed for default, was confirmed.

2. The facts, relevant only to decide the present application are that the Opposite Parties/plaintiffs filed C.S. No.242 of 2009 wherein, the present petitioner was the sole defendant. By order dated 20.09.2021, the trial Court dismissed the suit for non-prosecution as the plaintiff had taken no steps but the defendant was present. An application was filed by the plaintiff under Order IX Rule 9 of the CPC being C.M.A No.118 of 2021, before the Court below seeking restoration of the suit. The defendant filed objection. Upon such objection, the parties adduced oral evidence. By order dated 14.09.2023, the trial Court held that the conducting counsel of the plaintiff not having intimated him about the date of posting of the suit same was a good cause for his non-appearance. Holding thus, the application was allowed subject to cost of Rs.1000/-.

3. The defendant carried revision to the District Court. The learned District Judge, by the order impugned, refused to interfere by holding that the trial Court had not exercised jurisdiction not vested in it nor acted in exercise of jurisdiction illegally or with material irregularity. Being aggrieved, the defendant has approached this Court in the present application.

4. Heard Mr. S. Sahu, learned counsel for the petitioner-defendant and Mr. B.N. Panda, learned counsel for the plaintiff-Opposite Parties.

5. Mr. Sahu would argue that as per the Article 122 of the Limitation Act, an application for restoration of a suit dismissed for default can be filed within thirty days of the date of dismissal. In the instant case, the suit was dismissed for default on 20.09.2021 but the application for restoration was filed on 17.11.2021, which is beyond the period of limitation. Further, no application seeking condonation of delay was filed. The Courts below did not consider the issue of limitation. The revisional Court must therefore, be deem to have committed serious error of law in rejecting the petition for revision.

On merits, Mr. Sahu would argue that the plea taken by the plaintiffs to explain his non-appearance cannot be accepted in view of the admitted fact that they were prosecuting another suit in the very same Court at the relevant time. Therefore, it cannot be said that they were not aware of the date of posting of the suit in question.

6. Mr. B.N. Panda, on the other hand, would argue that the learned District Judge finding no illegality whatsoever in the order passed by the trial Court refused to exercise revisional jurisdiction. Once the revisional Court passed its order no further challenge can be made to the same. Mr. Panda further submits that the revision filed by the defendant was otherwise not maintainable in view of the fact that the order allowing restoration is appealable. In this context, he has relied upon the judgment of the Supreme Court in the case of Kamla Devi v. Kushal Kanwar & Another AIR 2007 SC 663.

7. In view of the rival contentions noted above, it is evident that the first question that falls for consideration is, whether the application for restoration was barred by limitation.

8. Admittedly, the trial Court dismissed the suit for non-prosecution on 20.09.2021 when the plaintiffs we