ORDER
S.C. Mohapatra, J.
1. The miscellaneous case was listed for orders on the question of condonation of delay in filing the civil revision. However, with the consent of the learned counsel for the parties, both the matters were finally heard, as I directed both the learned counsel to come ready for final disposal in my order dated 14-7-1987.
2. Defendant is the petitioner in this civil revision which has been filed long after the period of limitation. After the appearance of the opposite party, while proposing to finally
dispose of the matter the lower court records were called for.
3. The suit is in respect of a house in Berhampur town which is claimed to be in possession of the plaintiff. She has made a simple prayer for prohibitory injunction against defendant and has also valued the suit accordingly. However, explaining her possession in the plaint, she asserted title to the land and the house claiming that she purchased the land from her earning in the name of her father. She claimed that the mode of earning was not an approved mode in the society. She claimed to be maintaining her parents and to have constructed the house from the said source. On death of the parents, defendant was interfering with her peaceful possession for which the suit was to be filed.
4. Although defendant appeared in the suit, he did not file any written statement and the suit was decreed ex parte on account of his non-appearance on the date of hearing. An application for setting aside the ex parte decree was filed by him. Being satisfied that there was sufficient cause, the ex parte decree was set aside subject to payment of a cost of Rs. 100/- to the plaintiff within a stipulated time. Costs of Rs. 100/- not having been paid, the peremptory nature of the order passed by the Court worked out and the ex parte decree became final. Subsequently, about two months after, an appeal was filed by the defendant in the court of the District Judge, Berhampur against ex parte decree of the suit for not complying with the peremptory order. The District Judge having held that the appeal is not maintainable this civil revision has been filed against the order of the trial court after a long delay of 173 days.
4A. An order setting aside the ex parte decree is not appealable. The direction to pay costs as a pre-condition to the setting aside of the ex parte decree is also not appealable. Accordingly, the appeal filed before the District Judge was misconceived and was dismissed rightly as not maintainable.
5. Petitioner engaged a Lawyer who as stated by the learned counsel for both the parties is a fairly senior member of the Bar. There can thus, be no doubt that under misconception, the Lawyer advised filing of an appeal. Though the lawyer cannot be said to have acted in good faith, a litigant not well versed with the procedural law of the Court, ought to be dealt with sympathetically so that no prejudice is caused to him on account of mistake of a lawyer. As has been held in AIR 1970 SC 1953 (Mata Din v. A. Narayanan) in some circumstances, mistake of a lawyer can be a sufficient cause for condoning delay. To AIR 1961 SC 1400 (Rafiq v. Munshilal) absence of a lawyer when the appeal was called for hearing was held to be a sufficient cause since the appellant in that case had nothing more to do than to hand over the brief. Reliance on a lawyer who committed the mistake was found to be a sufficient cause.
In ILR (1965) Cut 4: (AIR 1965 Orissa 193) (Bhagirathi Padhan v. Achuta Padhan) though the mistake of the lawyer was found not to be in good faith, the delay was condoned since the view taken was also being taken in this Court. Accordingly, I am satisfied that there was sufficient cause for condonation of delay. The Misc. case is allowed.
6. Now coming to merits, costs of Rs. 100/- is not at all exhorbitant. The time specified is also reasonable. If the ground of illness was the cause of failure to pay the costs, the trial Court could have been moved to give some time for payment in exercise of its inherent power. Without taking such action, preferring an incompetent appeal was not justified. However, I find that this is a suit where the relief is only for injunction. The question of title can be left open to be decided in a properly constituted suit even by granting the relief of injunction till the title and consequential relief is adjudicated upon in appropriate litigation. Whether acceptable or not, there is chance of a plea to be raised in any subsequent litigation that the question of title was an issue and by the ex parte decree, the issue is deemed to have been decided in favour of the plaintiff in this case. This prejudice of the defendant can be
obviated in case it is made clear by granting the relief of prohibitory injunction in the decree itself that the question of title is left open to be decided in a properly constituted litigation. This clarification is not possible unless the ex parte decree is set aside. Filing of written statement is not a mandatory provision for entering contest in a suit. A party may not file written statement or even adduce evidence but can contest the suit.
7. In light of the aforesaid discussion, I am satisfied that the ex parte decree is to be set aside and in its place a decree shall be passed on contest where it shall be made clear that the suit is decreed on contest restraining the defendant from interfering with the possession of the plaintiff until the plaintiff is evicted in due process of law. This direction shall be worked out only after the defendant pays the plaintiff a cost of Rs. 2,000/- (two thousand only) within two months from today failing which the ex parte decree shall stand confirmed without reference to Bench.
8. In the result, subject to the aforesaid conditions this civil revision is allowed. There shall be no order as to costs in this revision.