Laxmidhar Sahu And Another vs Bhaskar Chandra Sahu

K.R. Mohapatra, J

This matter is taken up through hybrid mode.

The Petitioners in this CMP seek to assail the order dated 19th October, 2023 (Annexure-9) passed by learned District Judge, Bhadrak in F.A.O. No.87 of 2021, whereby allowing the appeal, learned appellate Court set aside the order dated 6th November, 2021 (Annexure-7) passed by learned Civil Judge, Bhadrak in I.A. No.85 of 2019 (arising out of C.S. No.191 of 2011) dismissing an application under Order IX Rule 9 CPC.

Mr. Sahoo, learned counsel submits that the Defendants are the Petitioners in this CMP. The suit was filed for permanent injunction and demarcation. The suit was posted to 9th April, 2018 for hearing. But, due to absence of Plaintiff-Opposite Party, it was dismissed for default. Subsequently, the Plaintiff-Opposite Party filed an application under Order IX Rule 9 CPC to set aside the order dated 9th April, 2018 stating that he was undergoing treatment from 5th April, 2018 to 30th March, 2019. He was also in jail custody from 27th October, 2018 to 13th March, 2019. Due to the above, the petition under Order IX Rule 9 CPC could not be filed in time. Learned trial Court disbelieving the plea of the Plaintiff-Opposite Party, dismissed the petition under Order IX Rule 9 CPC. It was observed by learned trial Court that the treating physician was not examined by the Plaintiff-Opposite Party. No prescription or medicine bill was submitted along with the medical certificate. It was further observed that there was no seal on the medical certificate filed by the Plaintiff-Opposite Party. Further during cross-examination of the Plaintiff-Opposite Party in the petition under Order IX Rule 9 CPC, he categorically denied to examine the treating physician. It is further observed that no prescription of the jail doctor was also annexed to the petition under Order IX Rule 9 CPC. On the aforesaid observations, the application under Order IX Rule 9 CPC in I.A. No.85 of 2019 was rejected on 6th November, 2021 (Annexure-7). Learned appellate Court without discussing the evidence on record and merely observing that learned trial Court rejected the petition on the ground of technicalities, reversed the said order and allowed the appeal and thereby restored the suit. It was observed by learned appellate Court that in order to render substantial justice to the parties and in order to avoid multiplicity of litigation between the parties, the suit should be restored.

It is further submitted by learned counsel for the Petitioners that no sufficient cause was shown by the Opposite Party to condone the delay in filing the petition under Order IX Rule 9 CPC. The petition under Order IX Rule 9 CPC was filed almost one year after the suit was dismissed. Learned trial Court scrutinizing the document arrived at a conclusion that medical certificate is not believable. Looking at the conduct of the Opposite Party and lack of material available on record, the petition under Order IX Rule 9 CPC was rejected. Learned trial Court brushed aside the same, reversed the order passed by learned trial Court holding that suit should be restored to render substantial justice and to avoid multiplicity of litigation between the parties. He, therefore, prays for setting aside the impugned order. It is further submitted that the cost imposed for restoration of the suit is not at all sufficient in comparison to the delay caused in filing the petition under Order IX Rule 9 CPC.

Taking note of the submission made by learned counsel for the Petitioners and on perusal of the record, it appears that learned trial Court disbelieved the plea on the ground that the medical certificate submitted in support of the illness of the Plaintiff-Opposite Party is not believable. He also took exception to non-examination of the treating physician and non-submission of the document in support of the illness of the Opposite Party, if any, issued by the jail doctor. Learned appellate Court, on the other hand, reversed the said order and restored the suit on the ground that learned trial Court applying hyper technicalities, rejected the petition.

Fact remains that the Plaintiff is interested to pursue the suit. Further learned appellate Court discussing the rival contentions of the parties allowed the appeal. Of course, the evidence of the parties in the proceeding under Order IX Rule 9 CPC has not been discussed in detail while adjudicating the appeal. But, it cannot be said that learned appellate Court has not taken into consideration the materials available on record. It appears that learned appellate Court gave much emphasis on the substantial justice to restore the suit. Admittedly, the Opposite Party was in jail custody for few months and immediately after being released on bail, he filed the petition under Order IX Rule 9 CPC. Although there are some infirmities in the medical certificate produced by the Plaintiff-Opposite Party, but the same should not be discarded or stand on the way of substantial justice as observed by learned appellate Court in absence of any material to the contrary.

It, however, appears that the cost imposed is at the lower side. Since the Plaintiff-Opposite Party has not yet appeared in this CMP, this Court is not in a position to vary the cost imposed without giving any opportunity of hearing to the Plaintiff-Opposite Party.

In view of the discussions made above, this Court is not inclined to interfere with the impugned order. However, on filing of an application before learned trial Court for enhancement of the cost for restoration of the suit, it shall do well to consider the same in accordance with law giving opportunity of hearing to the parties concerned.

The CMP is accordingly disposed of.

Urgent certified copy of this order be granted on proper application.

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