ORIGINAL JURISDICTION - Orissa High Court

MD. N. SHAREEF -V- POST MASTER, GPO. [P.MOHANTY,J.]
on the part of the conducting lawyer, the opposite party was prevented from
appearing on the date fixed for hearing of the suit. The conducting lawyer,
who has been cited as a witness (P.W.3) in Misc. Case No. 152 of 2000,
has admitted that in spite of knowledge of the date of hearing, he could not
attend the court due to his personal difficulties. He further submits that soon
after the ex parte decree came to the notice of the opposite party, he moved
for further action by maintaining the official formalities and in the process
there was delay of five months in filing the petition under Order 9 Rule 13
CPC. He also submits that this civil revision is not maintainable in view of
amendment to section 115 C.P.C. and is liable to be dismissed on that
ground alone. He lastly submits that the petitioner having received the cost
of Rs.5,000/- has waived his right to challenge the impugned order.
5. Perused the records and the judgments cited by the parties. So far as
maintainability of the revision is concerned, a plain reading of section 115
CPC, as it stands, makes it clear that the stress is on the question whether
the order in favour of the party applying for revision would have given finality
to the suit or other proceeding. If the answer is ‘yes’ then the revision is
maintainable. On the contrary, if the answer is ‘no’, then the revision is not
maintainable. This civil revision is filed by the plaintiff against the order
allowing the petition under Order 9 Rule 13 C.P.C. filed for setting aside the
ex parte decree passed against the defendant-opposite party. If the
impugned order had been passed in favour of the petitioner it would have
given finality to the suit. Therefore, this revision is maintainable.
Coming to the merits of the case, an ex parte decree passed against a
defendant can be set aside upon satisfaction of the Court that either the
summons were not duly served on the defendant or he was prevented by
sufficient cause from appearing when the suit was called for hearing. In the
instant case, the stand of the opposite party before the court below was
that, in spite of the steps being taken by him, he was prevented from
appearance as the conducting lawyer who was entrusted with the case,
neither took step nor intimated the opposite party regarding his difficulties in
attending the court. In support of his case, the opposite party examined
three witnesses and exhibited three documents. The conducting counsel,
who was examined by the opposite party, has specifically stated that due to
some personal difficulties, he could not attend the court. Law is well settled
that sufficiency of cause for being prevented from appearing before a court
must be liberally construed to enable the court to do complete justice. It is
also the settled principle of law that while considering the application filed
for condonation of delay, the court should not take a pedantic approach but
should take a pragmatic approach and it is not necessary for the party
seeking condonation of delay to explain each day of delay. In the instant
case, as it appears, due to official process and for tracing out the file, the
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