MADAN NAIKANI Vs. RANJIT MAHAKUR

JUDGEMENT

(1.) DECEASED Gangadhar, father of defendant No. 3, and Dibakar (defendant No. 1)were brothers. Plaintiff No. 1 purchased the A schedule lands for Rs. 400 and plaintiff No. 2 purchased the B schedule lands for Ks. 500 by two registered sale deeds on 30-12-64 from defendant No. 3. The case of the plaintiffs is that gangadhar died in a separated status from defendant No. 1 and after his death his sole heir defendant No. 3 was in possession of the property. They accordingly prayed for declaration of their title and eviction of defendants 1 and 2 who were interfering with their possession. In the alternative there was a prayer that a decree for refund of consideration of Rs. 900 with interest is to be passed against defendant No. 3. Defendant No. 3 filed written statement fully supporting the case of the plaintifts. Defendants 1 and 2 contested the suit alleging that Gangadhar died in a joint status with defendant No. 1 and the entire joint family property devolved on defendant No. 1 by survivorship. On 14-10-56 defendant No. 1 executed a mortgage bond in favour of defendant No. 2 who was in possession and ultimately he transferred the disputed lands to defendant No. 2 by a registered sale deed on 6-1-65. The case was posted to 23-6-66, for hearing. Defendant No. 3 did not appear and take any steps for adjournment of the case. She was accordingly set ex parte. Plaintiffs and defendants 1 and 2 appeared and gave evidence. On 27-6-66 the judgment was delivered. The suit was dismissed on contest againsi defendants 1 and 2 and (decreed?) ex parte against defendant No. 3 with a direction that she would refund the consideration of Rs. 900 only. On 28-7-66 defendant No. 3 filed an application for restoration of the suit. In that application she averred that she gave birth to a daughter 6 days before 23-6-66 when the case was heard and and that she had sufficient cause for nonappearance. The courts below have concurrently found that there was no sufficient cause and accordingly the application for restoration under Order 9, Rule 13 C. P. C. was dismissed. Defendant No. 3 has filed this Civil Revision againsi the confirming judgment of the lower appellate court.

(2.) MR. Naik contended that the courts below exercised their jurisdiction with material irregularity in ignoring the important fact that defendant No. 1 himself admitted in his evidence that the petitioner gave birth to a daughter 6 days after the hearing though their original case was that the delivery was long after the hearing. In my view both the courts below exercised their jurisdiction with material irregularity in not properly appreciating the true scope of the case of defendant No. 3. In cross-examination defendant No. 3 (P. W. 1) replied thus: "it is not a fact I gave birth to the child long after the hearing of the suit". This shows that even by 17-9-60 when the misc. case was heard defendants 1 and 2 were not clear in their mind as to when defendant No. 3 gave birth to a child. Defendant No. 3 is supported by O. P. W. 2 that she gave birth to a child 6 days before the date of hearing. Defendant No. 1 (O. P. W. 1) admitted in examination-in-chief that defendant No. 3 gave birth to a child 6 to 7 days after the date of hearing. If really defendant No. 3 gave birth to a child 6 days after the date of hearing there was no reason for her to make a false statement that she gave birth to a child 6 days before the date of hearing. I am inclined to accept her version and hold that there was sufficient cause for her absence on 23-6-66. But even assuming that she gave birth to a child 6 days after the date of hearing it makes no difference so far as the existence of the sufficient cause is concerned. Whether she gave birth to a child 6 days before or 6 days after hardly makes any difference and whichever version is true she would be unable to attend court on the date of hearing. The application under Order 9, Rule 13 C. P. C. must accordingly be allowed and the decree passed against her in favour of the plaintiffs to the effect that she would refund the consideration of Rs. 900 with costs is hereby set aside. The suit must be restored to file to determine the question whether she is liable to refund the consideration money.

(3.) THE next question for consideration is whether the decree passed in favour of defendants 1 and 2 on contest is to be set aside. This necessitates examination of the scope of Order 9, Rule 13 C. P. C. So far as relevant and as amended in Orissa it runs thus: