M/S. ORES ENTERPRISERS (P) LTD. REPRESENTED BY ITS DIRECTOR SRI HARBINDER SINGH DENGRA Vs. ORISSA MINING CORPORATION LTD. REPRESENTED BY ITS MANAGER SAROJ RANJAN PATTNAIK

JUDGEMENT

(1.) THE Petitioner being aggrieved with the impugned order passed by the Learned Civil Judge (Sr.Divn.), Rourkela in C.M.A. No. 53 of 2010 (Annexure -5) has approached this Court under Articles 226 & 227 of the Constitution of India. The material facts of the case are that the Opp. Party of this Writ Petition as Plaintiff had instituted Civil Suit No. 221 of 2005 in the Court of Learned Civil Judge (Sr.Divn.), Rourkela for recovery of Rs. 63,35,151 with pendente lite & future interest @ 12% per annum & the present Petitioner was the Defendant in the said suit. The said suit was decreed ex parte on 18.11.2008. To set aside the ex parte decree so passed, the Petitioner -Defendant filed a petition under Order, 9 Rule, 13 of the Civil Procedure Code (C.P.C.) which was registered as C.M.A. No. 99 of 2008 & the same was dismissed on 22.3.2010 for default of the Petitioner. To restore C.M.A. No. 99 of 2008, another C.M.A. which was registered as 53 of 2010 was presented on 16.4.2010 under Section 151 of the C.P.C., but the same was also disallowed on merit by the Court by the impugned order at Annexure -5.

(2.) LEARNED Counsel appearing for the Petitioner contended that by dismissal of the prayer in C.M.A. No. 53 of 2010 serious prejudice has been caused to the Petitioner as the Court adopted a too harsh attitude & did not consider liberally in allowing the Misc. Case & in setting aside the ex parte decree. It is alleged that the findings of the Learned Trial Court that the Petitioner was not so ill which prevented him from appearing before the Court when the matter was taken up for hearing are perverse in view of the Medical Certificate produced by the Petitioner & by examining the doctor in support of the illness. The Learned Counsel for the Petitioner placed reliance on a decision of this Court as reported in, 1985 (II) OLR 155, Ramanath Misra V. Ganeswar Misra & ors.

(3.) IT is the settled law that the High Court may intervene only when the error is such that if it is not corrected at the very moment it would become incapable for correction at a later stage & would result in travesty of justice. In this case there is no material on record to show that the order of the Learned Civil Judge (Sr.Divn.), Rourkela is without jurisdiction or that it suffers from any patent error of law & there has been gross failure of justice. It is also the well settled position of law that the supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction namely, when the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise its jurisdiction which it does have or the jurisdiction though available has been exercised in a manner which is not permissible by law.