Location: High Court of Orissa, Cuttack

Date: 24-Nov-2025 17:16:46

IN THE HIGH COURT OF ORISSA AT CUTTACK

C.M.P. No.559 of 2025

(In the matter of an application under Article 227 of the Constitution of

India)

Ashok Kumar Kedia@Ashok Kedia …. Petitioner

-versus-

Harsabardhan Tibrewal and …. Opposite Parties

another

Advocate(s) appeared in this case:-

For Petitioner : Mr. B. Bhuyan, Senior Advocate

For Opposite Parties : Mr. S. Udgata, Advocate

For O.P. No.1

CORAM: JUSTICE B.P. ROUTRAY

JUDGMENT

17^th November 2025

B.P. Routray, J.

1. Heard Mr. B. Bhuyan, learned Senior Advocate for the Petitioner

and Mr. S. Udgata, learned Advocate for Opposite Party No.1.

2. No-one enters appearance for Opposite Party No.2 despite the

notice is served on him as per the postal tracking report.

3. Present C.M.P. is directed against order 09.09.2022 passed by learned Civil Judge (Sr. Divn.), Jharsuguda in T.S. No.152 of 1994 and the order dated 29.01.2025 passed by the learned Addl. District Judge,

Location: High Court of Orissa, Cuttack Date: 24-Nov-2025 17:16:46 Jharsuguda in Civil Revision Case No.1 of 2023, wherein the dismissal of the suit for non-payment of cost made by the learned trial court was confirmed by the revisional court.

4. Present Petitioner is substituted Plaintiff No.1 and present Opposite Party No.2 is substituted Plaintiff No.2 in T.S. No.152 of 1994. Opposite Party No.1 before this Court is the sole substituted Defendant. The suit is with prayer for appointment of the arbitrator under Section 8 of the Arbitration Act, 1940.

5. During pendency of the suit, original Plaintiff and Defendant were died and have been substituted subject to the dispute raised regarding substitution and decision of the court made under Order 22 Rule 5 of the C.P.C. On the date fixed i.e. 09.09.2022, the suit was posted for hearing and payment of cost by the Plaintiffs. A time petition was filed on behalf of the Plaintiffs without payment of cost. However, the learned trial court rejected the prayer for time and dismissed the suit invoking its inherent power under Section 151 of the C.P.C.

Location: High Court of Orissa, Cuttack Date: 24-Nov-2025 17:16:46

6. After the order dated 09.09.2022 was passed dismissing the suit, Plaintiff No.1 preferred a Civil Revision in C.R. Case No.1 of 2023 which was also dismissed vide judgment dated 29.01.2025 of learned Additional District Judge, Jharsuguda. Present C.M.P. is directed challenging both such orders of revisional court and the trial court.

7. On the other hand, Plaintiff No.2 filed C.M.A. No.37 of 2022 before the learned trial court as per Order 9 Rule 9 C.P.C. praying for restoration of the suit. However, vide order dated 20.05.2025 said C.M.A. No.37 of 2022 filed by the other Plaintiff was also dismissed. Challenging the dismissal order dated 20.05.2025 passed in C.M.A. No.37 of 2022 the other Plaintiff has preferred F.A.O. No.6 of 2025 before the learned District Judge, Jharsuguda which is still pending consideration.

8. It is seen from the impugned order dated 09.09.2022 of the learned trial court that he invoked inherent power of the court while dealing the matter under Rule 3 of Order 17, C.P.C. The learned trial court has referred two decisions of this Court in Orissa State Financial Corporation vs. Gopal Chandra Ghosh, 1985 (I) OLR-81 and in Location: High Court of Orissa, Cuttack Date: 24-Nov-2025 17:16:46 Radhika Engineering Industries vs. Hindustan Aeronautics Ltd., 1993 (II) OLR-37

9. The provisions under Order 17 Rule 1 C.P.C. specifies for adjournment of hearing including costs of adjournment and the conditions where adjournments should not be granted. Rule 2 prescribes the procedure if the parties fail to appear on the date fixed and Rule 3 prescribes proceeding of the court in two parts in the circumstances without production of evidence by the party. For better appreciation Rule 2 and 3 are reproduced below:-

“2. Procedure if parties fail to appear on day fixed. Where, on any day to which the hearing of the suit is