ORIGINAL JURISDICTION - Orissa High Court

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
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