ORIGINAL JURISDICTION - Orissa High Court

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MD. N. SHAREEF -V- POST MASTER, GPO. [P.MOHANTY,J.] Sharif on 06.01.1988, Rahimtullah Shariff tried to encash the NSCs without the consent of Ashrafun Nisha Begum in collusion with the opposite party. As such, Ashrafun Nisha Begum filed T.S. No. 364 of 1989 before the learned Civil Judge (Junior Division) Ist <strong>Court</strong>, Cuttack with a prayer to restrain the opposite party from making any payment either towards interest or cost of the NSCs to Md. Rahimtullah Shariff or to anybody else excepting her and for depositing the same in Savings Bank Account No.268450, which jointly belonged to the petitioner and Ashrafun Nisha Begum. The said title suit was decreed on 26.08.1991 directing the opposite party to deposit the amount in S.B. Account No.268450. Despite such direction the opposite party did not deposit the amount in the joint savings bank account. Ashrafun Nisha Begum made a representation but the opposite party did not take any steps. Finding no other way, she filed Execution Case No.9 of 1992 to execute the decree passed in T.S. NO.364 of 1989. During pendency of said execution case, Ashrafun Nisha Begum died on 18.06.1992. The petitioner being the sole nominee of his mother Ashrafun Nisha Begum contested the execution case. By order dated 23.07.1992 the learned Civil Judge directed the opposite party to deposit the matured amount of the NSCs in the aforesaid S.B. Account. The opposite party on 14.10.1997 deposited a sum of Rs.94,430.50 and the petitioner withdrew the same being the sole account holder. As interest was paid till the date of maturity and not till the date of payment, i.e., 14.10.1997, the petitioner filed T.S. No. 184 of 1998 for payment of interest and other dues. The opposite party entered appearance through his advocate and on 14.05.1999 filed written statement. When the suit was posted for hearing, the opposite party remained absent. Despite several opportunities, the opposite party took no steps to contest the suit. The petitioner also personally tried to procure the attendance of the opposite party and issued notice to him to participate in the hearing, but the opposite party did not turn up. Ultimately, on 31.01.2000 the suit was decreed ex parte directing the opposite party to pay interest on maturity value of the NSCs at the government rate of interest from the date of maturity till the actual date of deposit made in the S.B. account. The opposite party, to set aside the ex parte decree, filed a petition on 19.06.2000 under Order 9 Rule 13 CPC which was registered as Misc. Case No.152 of 2000. Together with the said misc. case, the opposite party also filed a petition under section 5 of the Limitation Act. The learned Civil Judge (Junior Division), Ist <strong>Court</strong>, Cuttack on considering of the evidence and upon hearing the parties rejected petition under Section 5 of the Limitation Act and dismissed the misc. case for setting aside ex parte decree by order dated 02.09.2002. Against that order, the opposite party preferred Misc. Appeal No.119 of 2002 before the learned Ad hoc Additional District Judge, FTC No. I, Cuttack. After hearing the parties, the learned Ad 78
INDIAN LAW REPORTS, CUTTACK SERIES [2010] hoc Additional District Judge by judgment dated 17.12.2004 set aside the order dated 02.09.2002 passed in Misc. Case No. 152 of 2000 as well as the ex parte judgment and decree passed in T.S. No.184 of 1998 subject to payment of cost of Rs.5,000/- to the petitioner and directed the trial court to dispose of the suit within three months from the date of payment of the cost after giving opportunity to the parties to adduce evidence, if any. Against the said order, this civil revision is filed by the petitioner. 3. Learned counsel for the petitioner submits that during the course of trial of the suit, the opposite party remained absent willfully. Even after coming to know about the ex parte decree, he also did not take steps for setting aside the same and restoration of the suit to file within the period of limitation. The evidence of the witnesses as well as the documents shows that the opposite party had no prima facie case to invoke the relief and set aside the order of the trial court in the suit. He further submits that the opposite party was set ex parte on 04.01.2000 and ex parte judgment was passed on 31.01.2000. No sufficient cause or reason was ascribed for nonappearance of the opposite party on the date fixed in spite of knowledge of the same. The evidence of the witnesses examined on behalf of the opposite party is totally inconsistent. The plea of super cyclone is nothing but an afterthought. Moreover, super cyclone was held on 29.10.1999. The time petition was filed on 19.11.1999, i.e. after the super cyclone. Admittedly, the petitioner gave notice on 13.12.1999. He further submits that the original suit is of the year 1989. Petitioner is the legal heir of the original plaintiff Ashrafun Nisha Begum. During her life time she could not get the maturity value of the NSCs. The same was paid to the petitioner after the death of the original plaintiff pursuant to the direction in the execution case filed by her. For realization of interest the petitioner filed another suit in the year 1998. Without considering these aspects, the appellate court illegally condoned the delay, set aside the order of the trial court and restored the suit to file. He further submits that this civil revision is maintainable. In support of his contention, he relies upon the decisions in Shiv Shakti Coop. Housing Society, Nagpur v. M/s. Swaraj Developers & ors, 2003(I) OLR (SC) 673; Golam Mohammad and another v. Sk. Fakir and others, 2008 (I) OLR 235; Sitaram alias Mahendra Ghosh v. Sri Antaryami Mohapatra and 18 others, etc. 2003(II) OLR 409; Vidyodaya Trust and others v. Mohan Prasadr and others, (2006) 7 S.C.C. 452 and Narayan Dash v. Gouranga Charan Dash and others, etc. 2003 (Supp.) OLR 703. 4. Mr. Dash, learned counsel for the opposite party strenuously opposes the above submission of the petitioner and contends that the opposite party was never negligent. In fact, on receipt of notice he had appeared through advocate and filed written statement in the original suit. But for the laches 79
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2010 ( I ) ILR-CUT- 271 I.M.QUDDUSI
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SK.IBRAHIM -V- STATE OF ORISSA [B.K
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2010 ( I ) ILR-CUT- 275 I.M.QUDDUSI
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MIRJA SIDDIK -V- STATE OF ORISSA ju
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23 DILIP KUMAR RAY -V- STATE OF ORI
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25 DILIP KUMAR RAY -V- STATE OF ORI
Page 13 and 14: 27 DILIP KUMAR RAY -V- STATE OF ORI
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Page 17 and 18: NITYANANDA BEHERA -V- STATE [S.C.PA
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Page 21 and 22: ANUPAMA BEHERA -V- D.M., LIC OF IND
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Page 27 and 28: 2010 ( I ) ILR-CUT- 297 L.MOHAPATRA
Page 29 and 30: 43 Court in the case of M/s. Thunga
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Page 105 and 106: 119 Rs. 71,74,451/- for repair of t
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129 to any person, or to consent th
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2010 ( I ) ILR-CUT- 386 B.P.RAY, J.
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133 testimony of the victim in a ca
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135 relationship of the appellant w
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137 Officer,Bangalore). 3.AIR 1996
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139 restored, only to avoid the ord
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2010 ( I ) ILR-CUT- 396 141 B.K.PAT
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143 4.12.1997. The vehicle was insu
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145 vehicle and insurance policy tr
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147 place from the date of sale whe
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149 deemed to have issued to the in
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151 6. On an analysis of Sections 9
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153 the policy purports to cover in
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2010 ( I ) ILR-CUT- 410 B.K.NAYAK,
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157 “….. The decision in the ca
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2010 ( I ) ILR-CUT- 414 S.K.MISHRA,
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161 the imposition of fine of Rs.50
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163 overtuous regarding sex. Theref
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165 6. The learned trial court, aft
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167 The Opposite parties 2 to 11 ar
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169 3. It is undisputed at this sta
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shall dispose of the application on
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ORIGINAL JURISDICTION - Orissa High Court

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