ANANTA CHARAN Vs. PALI DEI

JUDGEMENT

(1.) This civil revision is directed against the order passed by the learned Subordinate Judge, Nayagarh on 22-3-1986 extending time for payment of cost by the opposite parties for restoration of a misc. case under O.9, R.9 of the Code of Civil Procedure ('C.P.C.' for short).

(2.) Opposite parties 1 and 2 are the plaintiffs of Original Suit No. 12 of 1978 which was dismissed for default on 10-11-1982. They filed Misc. Case No. 20 of 1982 under O.9, R.9, C.P.C. On 6-5-1983 the Misc. case was dismissed for default. Being aggrieved by the order of dismissal the opposite parties filed a Misc. appeal before the learned Subordinate Judge. The learned Subordinate Judge after hearing both parties, passed the following order :- That the Misc. appeal is allowed on contest against the respondents. The order of the Addl. Munsif, Ranpur dismissing the Misc. Case No. 20/82 is hereby set aside. The Misc. Case No. 20/82 shall be restored to file to its original stage subject to payment of cost of Rs. 50/- by the appellants to the respondents in the lower court by 28-2-1986 failing which the Misc. appeal shall stand dismissed without reference to this Court. Send back the record to the learned lower court at once. In the peculiar circumstances of the case the parties to bear their respective costs. Pleader's fee assessed at Rs. 50/-. The cost directed was not paid on the date fixed. Naturally, therefore, in terms of the order the misc. case under O.9, R.9, C.P.C. stood dismissed. On 22-3-1986 the opposite parties filed a petition before the learned Subordinate Judge. Copy of the petition was not served on the counsel who appeared for the petitioner nor notice thereof was given to him. On the same day, only after hearing the learned counsel for the opposite parties and in the absence of the petitioner, the learned Subordinate Judge passed the following impugned order :- Advocate for the appellant files a petition praying for time for payment of costs as per order passed in judgement. Perused the petition. It appears that L.C.R. in O.S. 12/78 I along with copy of judgement could not be sent to Addl. Munsif, Ranpur in due time for want of postage. The prayer is allowed. The appellant is directed to pay the cost to the respondent on 11-4-1986. Send the record at once. Send the extract of the order to the lower court. Mr. Behera, learned counsel appearing for the petitioner urged that the ex parte order passed by the learned court below was illegal because of violation of principle of natural justice. A report was called for from the learned Subordinate Judge as to whether the petition filed by the opposite parties on 22-3-1986 was disposed of after hearing both parties. He has reported that the petition was disposed of only after hearing the opposite parties and without notice to the petitioner. On his own showing, therefore, the impugned order was not in accordance with law because, it was passed without notice and in the absence of the petitioner. Courts disposing of civil suits and cases should always remember that whenever a petition is filed by one of the parties copies thereof should be served on the advocate for the other side and a contested order is passed. In this case there were some legal points to argue with reference to decisions of this Court and so the least that can be said is that the petitioner was entitled to notice of the petition before its disposal. In that view of the matter, I hold that the learned Subordinate Judge committed a serious irregularity by passing an illegal order without notice to and in the absence of one of the contesting parties.

(3.) In the result, therefore, the civil revision is allowed and the impugned order dt/- 22-3-1986 is set aside. The learned court shall serve a copy of the petition dt/- 22-3-1986 filed by the opposite party on the petitioner and then dispose of the same according to law. Parties to appear before the learned Subordinate Judge on 23-11-1987 to receive directions. Advocate's fee is assessed at Rs. 100/-. Order accordingly.