NAKULA SWAIN Vs. JOGENDRA DAS

JUDGEMENT

(1.) THE defendants -petitioners have preferred this Civil Revision challenging the order in Misc. Appeal No. 40/92 passed by the learned Addl. District Judge, Bhubaneswar confirming the order passed by the learned Munsif, Bhubaneswar in Misc. Case No. 71/92 refusing to entertain an application filed under Order 9, Rule 13 of the Code of Civil Procedure (in short, 'the Code') to set aside the ex parte decree.

(2.) THE factual scenario as emerges is as follows : The opp. party as plaintiff instituted Title - Suit No. 209/90 in the Court of Munsif, Bhubaneswar for correction of Record -of -rights. The present revisionists who were the defendants in the Court below entered appearance in the aforesaid suit and sought adjournments on many an occasion for the purpose of filing of written statement. On 19 -8 -1991 the petition for time was rejected and the suit was fixed for ex parte hearing. The defendants did not take steps to recall the order setting them ex parte and allowed the suit to proceed ex parte. Two witnesses were examined, one on 3 -9 -1991 and another on 4 -9 -1991 and the suit was posted to 13 -9 -1991 for delivery of judgment, and ultimately judgment was pronounced on 21 -9 -1991 and eventually an ex parte decree was passed. On 24 -3 -1992 the defendants filed a petition under Order 9, Rule 13 of the Coda forming the subject -matter of Misc. Case (Mo. 71/92 praying for setting aside the ex parte decree. It was stated in the said petition that on 19 -9 -1991 a petition was filed by the defendants seeking an adjournment to file written statement. The said petition was rejected by the Court but the defendants were not aware of the same. Subsequently they came to know that the case was posted to 24 -3 -1992 for ex parte hearing. This information, as pleaded, was given by the Advocate's clerk. Later on they came to learn that the ex parte decree had already been passed on 21 -9 -1991 and accordingly they filed the application for setting aside the same. It has also been stated in the petition that defendant No.1 who was looking after the case had been taken ill from 5 -3 -1992 to 18 -3 -1992 and as the Court had remained closed from 18 -3 -1992 to 22 -3 -1992 they could not file the petition earlier for setting aside the ex parte decree. An application was filed under Section 5 of the Limitation Act for condonation of the delay in filing the petition. The aforesaid petition was resisted by the plaintiff contending that the defendants had been afforded sufficient opportunity to contest the suit by filing written statement and they, by their conduct, had allowed the ex parte judgment and decree to be passed having complete knowledge about the proceedings of the suit. Their further objection was that as the defendants deliberately did not take any steps there was no reason to show indulgence to them. Lack of sufficient cause was also canvassed with vehemence. The petition filed under Section 5 of the Limitation Act was also seriously contested.

(3.) I have heard Mr. B. P. Ray, the learned counsel for the petitioners. Though a counsel has appeared for the opp. party -plaintiff, there was no appearance on 26 -3 -1996 and later on 29 -3 -1996 when the case was heard for the purpose of final disposal. It is submitted by Mr. Ray that the petitioners are illiterate persons and they were totally dependent on the clerk of the advocate. Defendant No. 1 (petitioner No. 1 to the present revision) was looking after the case and he was informed by the registered clerk of the advocate about the adjournments from time to time. It is the submission of Mr. Ray that the property involved is substantial as far as the petitioners are concerned and if the ex parte decree remains unchallenged that would amount to extinction of their right, title and interest and substantially imperil their livelihood. The counsel has also emphasized that they had no reason to allow an ex parte decree to be passed when they had entered contest but due to unavoidable circumstances they could not file written statement and they did not have knowledge with regard to the dates fixed for ex parte hearing. They have become victims of circumstances and they are in such state of distress because of communication gap between them and the advocate's clerk. The last plank of his submission is that the defendants are prepared to compensate the plaintiff for the harassment he is likely to face in the event of ex parte decree is set aside.