BISANDAYAL AND SONS Vs. UNITED BANK OF INDIA

JUDGEMENT

(1.) United Bank of India. Nayasarak Branch, Cuttack, on 19-4-1977 presented the plaint and instituted Title Mortgage Suit No. 102 of 1977 against the petitioners as defendants Nos. 1 and 2 and opposite party Nos. 2 and 3 as the other defendants, and claimed for recovery of a sum of Rs. 2,61,380/- (two lakhs sixty one thousand three hundred and eighty only) with pendente lite and future interest and cost, and in that respect, if necessary, to sell the mortgaged property covered by the Schedule A and B of the plaint on the ground of liability of the defendants on the basis of the cash credit facility and overdraft facility provided in course of the transactions. In their separate written statement including the additional written statement petitioners as well as defendant No. 4/opp. party No. 2, inter alia, have challenged to the extent of their liability and the mode of calculation, issues have been framed on the basis of the pleadings of the parties in which legality, validity and binding nature of the contract and genuineness of the claim is covered by some of the issues. As per the order-sheet No. 335 dated 2-4-1994, the suit was heard ex parte due to default in participation by the defendants and after further hearing on 29-4-1994, learned First Addl. Civil Judge (Sr. Division), Cuttack on 10-5-1994 passed a preliminary decree for the suit amount along with future interest @ 14% per annum with the leave to realise the same by putting the mortgaged and hypothecated properties to auction sale. Defendants thereafter filed Misc. Case No. 38 of 1994 under Order 9, Rule 13, C. P. C. That Misc. Case at the stage of hearing, was dismissed on 12-9-1995 for the default of the petitioners. As against that, petitioners filed Misc. Case No. 53 of 1995 for restoration of Misc. Case No. 38 of 1994. That application was allowed ex parte on 10-7-1996 and Misc. Case No. 38 of 1994 was restored to file. Again on 4-12-1996 Misc. Case No. 38 of 1994 was dismissed for default of the petitioners. As against that, petitioners filed Misc. Case No. 160 of 1996 for restoration of Misc. Case No. 38 of 1994, and after hearing the parties that application was dismissed On contest as per the impugned order passed on 23-12-1998. Hence this revision under Section 115, C.P.C.

(2.) In the application for restoration (Misc. Case No. 160 of 1996) petitioners have advanced the ground that petitioner No. 2 looks after the case on behalf of the defendants and on the relevant date he could not return in time to Cuttack because of the fact of attending a marriage ceremony of a nephew, i.e., son of a cousin sister. In support of that contention petitioner No. 2 was examined as P.W. No. 1 and the invitation card was proved as Ex. 1. Learned Civil Judge rejected such plea on the ground that when the petitioner is the defendant in a year-old suit, such negligent conduct on his part does not constitute sufficient cause, and therefore the application for restoration is devoid of merit. Accordingly he passed the impugned order.

(3.) Learned counsel for the petitioners argued that when the fact of petitioner No. 2 looking after the litigation on behalf of the defendants and the fact that he was absent because of the social obligation is a matter which is not in dispute, such plea of the petitioner could not have been ignored merely because his cousin sister is distantly related. He argued that it is not the degree of relationship according to the family genealogy but the social relationship and closeness which was relevant and in that respect there is nothing in the evidence of P.W. 1 so as to discard such a plea advanced by him on behalf of the defendants. He further argued that, even if the aforesaid ground advanced by the petitioner does not constitute sufficient cause, but certainly such circumstance qualifies to. the condition of a good cause, and in an application for restoration under Section 151, C.P.C. the Court below should have looked for a good cause and should have allowed the application. Accordingly, he prayed to set aside the impugned order and to allow the application for restoration.