CHINMAYA SAHU Vs. AMIT KUMAR SAHU

JUDGEMENT

(1.) This matter is taken up through hybrid mode.

(2.) Judgment dtd. 11/5/2023 (Annexure-4) passed by learned 1st Additional District and Sessions Judge, Baripada, Mayurbhanj in F.A.O. No.5 of 2023 is under challenge in this CMP, whereby dismissing the appeal, learned appellate Court confirmed the order dtd. 14/10/2022 (Annexure-3) passed by learned Additional Senior Civil Judge, Baripada in C.M.A. No.10 of 2022 (arising out of C.S. No.535 of 2015) dismissing an application under Order IX Rule 13 CPC.

(3.) Mr. Nanda, learned counsel for the Petitioners submits that the Plaintiff-Opposite Party filed the suit for eviction, mandatory and prohibitory injunction. The Defendants- Petitioners though appeared in the suit through their learned Advocate, but did not file the written statement and contest the suit. Accordingly, they were set ex parte and subsequently, ex parte judgment was passed on 24/2/2022. The Defendants-Petitioners could not know about the ex parte judgment passed against them, as learned Advocate appearing on their behalf did not intimate the same. When the Defendants- Petitioners came to know about the ex parte judgment passed in the suit, they filed an application in C.M.A. No.10 of 2022 on 26/4/2022. Although there was a delay in filing the petition under Order IX Rule 13 CPC, but learned Advocate appearing for the Petitioners on a bona fide impression that the period of limitation will reckon from the date of knowledge of the ex parte judgment by the Defendants-Petitioners, did not file any application under Sec. 5 of the Limitation Act for condonation of delay. Objections were filed stating that petition for condonation of delay was not filed. Taking note of the objection, learned trial Court dismissed the petition under Order IX Rule 13 CPC vide judgment dtd. 14/10/2022 under Annexure-3. The sole ground of rejection of the petition under Order IX Rule 13 CPC was that the petition under Order IX Rule 13 CPC was not accompanied with an application for condonation of delay. Learned appellate Court also dismissed the appeal vide judgment under Annexure-4 on the same ground. Hence, this CMP has been filed.