C.M.P. No.674 of 2014

29.08.2016

This petition under Article 227 of the Constitution of India challenges the or

der dated 17.05.2014 passed by the learned District Judge, Rayagada in Civil Revision No. 02 o

f 2014. By the said order, the learned District Judge, Rayagada dismissed the revision petiti

on and confirmed the order dated 03.04.2014 passed by the learned Civil Judge (Senior Division

), Gunupur, whereby and whereunder the learned trial court allowed C.M.A. No. 18 of 2012 under

Order-9 Rule 9 C.P.C. and set aside the order dated 22.08.2015.

The opposite parties as plaintiffs instituted T.M.S. No. 37 of 1999 in the cou

rt of learned Civil Judge (Senior Division), Gunupur to pass a decree for redemption of promis

sory mortgage of the suit house impleading the petitioner as defendant. The suit was filed by

K.Sadanandan, the husband of the plaintiff no.1 and power of attorney holder of plaintiffs.

During pendency of the suit, husband of the plaintiff no.1 died. Thereafter, adjournment was s

ought for on the ground of the death of the power of attorney holder. The said petition was r

ejected and the suit was dismissed for non-prosecution. While the matter stood thus, the plain

tiffs filed an application under Order 9 Rule 9 C.P.C. for restoration of the suit, which was

registered as C.M.A. No. 18 of 2012. Since there was a delay, they filed an application under

Section 5 of the Limitation Act for condonation of delay. The defendant filed an objection. T

o substantiate the case, the plaintiff no.1 examined herself as P.W.1. The defendant neither a

dduced any oral nor documentary evidence. Learned trial court allowed the application. The def

endant unsuccessfully challenged the same in Civil Revision No. 02 of 2014 before the learned

District Judge, Rayagada, which was eventually dismissed on 17.05.2014.

Heard Mr. A.K. Nanda, learned counsel for the petitioner and Mr. S.S. Rao, lea

rned counsel for the opposite party no.1.

Mr. Nanda, learned counsel for the petitioner, submits that the plaintiffs fil

ed an application for adjournment of the suit on the ground that the power of attorney holder

died. The same was dismissed. After lapse of seven years, the plaintiffs filed an application

under Order 9, Rule 9 C.P.C. for restoration of suit on the self-same ground. Learned trial c

ourt allowed the application and the revisional court confirmed the said order on untenable an

d unsupportable ground.

Per contra, Mr. Rao, learned counsel for the opposite party no.1 supports the

order passed by the court below.

In an application for restoration of the suit, it is stated that plaintiff no.

1 is the elder sister. Her husband was the general power of attorney holder and was looking af

ter the suit. After the death of her husband, she became helpless. She has three minor sons.

She left Paralakhemundi and went to Mettupalem near Coimbattore in Tamil Nadu with her minor c

hildren to the house of her in-laws. She could not keep track the suit. Her sister, plaintif

f no.2, who was depending on the power of attorney holder, became sick. She came to Gunupur on

03.07.2012. On enquiry, it was revealed that the suit was dismissed for default on 22.08.200

5. The application was allowed by the trial court. The revisional court assigned the following

reasons and dismissed the revision.

7. Admittedly, the husband of Plantiff No.1 was the general power-of-attorney

of the plaintiff. The plaintiff and her husband resided at Parlakhemundi, a town 55 Kms away

from Gunupur where the suit was pending. Plaintiff No.2 (younger sister of Plaintiff No.1) ser

ved as an ANM in Belghar in the district of Kandhamal. The suit property is a house the mortg

age of which was sought to be redeemed. From these facts it would appear that the Plaintiff N

o.2 relied heavily on Plaintiff No.1 and her husband in