JUDGMENT
L. Mohapatra, J.
1. The application of defendant No. 1 under Order 9, Rule 13 of the Code of Civil Procedure (CPC, for short) for setting aside the ex parte decree having been rejected and the appeal filed against the said order having been dismissed, the present revision has been filed.
2. The opposite party had filed a suit in the court of the learned Munsif, Dharamgarh, for declaration of right, title and interest over the suit land. The short case of the opposite party is that the suit land originally belonged to Gurudwara, Bhawanipatna, and was under the custody of defendant No. 2 Ujagar Singh who was the President
of the Sikh Gurudwara. Since the land was located at a long distance from the headquarters of the Gurudwara at Bhawanipatna and it was difficult on the part of the Gurudwara to look after the property, same was sold in favour of Chandrabhanu, Krushna and the plaintiff-opposite party for a consideration of Rs. 3,600/- and possession was delivered. Mutation was allowed in the year 1958. In 1961 the purchasers who are brothers, amicably partitioned the land under a registered deed of partition and the opposite party was allotted with the entire land and he possessed it separately. Thereafter the opposite party sold a portion of the same to the extent of Ac. 8.51 dec. to his brother Krushna in 1965 and remained in possession of the balance portion. Again in the year 1990 when the opposite party applied for mutation before the Tahasildar, Dharamgarh, who had earlier mutated his name, the application was disallowed and the appeal filed against the said order was also dismissed, creating cloud with regard to title of the opposite party over the suit land. For the aforesaid reason, the suit had been filed.
3. From the petition filed under Order 9, Rule 13, CPC it appears that after filing of the suit notice was issued to the defendant and after receipt of notice Late Balaram Patnaik, Advocate of Bhawanipatna, had been engaged and defendant No. 2 Ujagar Singh, who was the President of the Gurudwara then, was entrusted to look after the suit. Late Balaram Patnaik, Advocate, passed away on 6.12.1993 and the then President-defendant No. 2 Ujagar Singh also passed away on 25.5.1992. After expiry of defendant No. 2 as well as their Advocate Late Balaram Patnaik, the present applicant remained in dark about progress of the case and only on 13.9.1995 he came to know that an ex parte decree had been passed on 30.9.1993. Thereafter certified copy of the ex parte judgment was immediately applied for, but since the present applicant was suffering from illness till 27.11.1995, the application could not be filed immediately and the same was filed on 27.11.1995.
4. An objection was filed by the present opposite party denying all the averments made in the application under Order 9, Rule 13, CPC. It was stated in the objection that Late Ujagar Singh had engaged another Advocate as his interest clashed with the interest of the present applicant who was defendant No. 1. Therefore, the allegation of the present applicant that Ujagar Singh was engaged by him to look after the case on his behalf and on behalf of the institution is palpably false. The present applicant and defendant No. 1 had taken 12 adjournments to file written statement, but did not file the same which proves his negligence.
5. The learned Munsif disbelieved the statement of defenandat No. 1 -petitioner that after the death of Late Balaram Patnaik they had
no knowledge about progress of the case till 13.9.1995. The delay in filing the application was not condoned and the application under Order 9, Rule 13, CPC was also dismissed on the very same ground. The appeal preferred by the present petitioner before the learned District Judge, Kalahandi, was also dismissed on similar grounds.
6. Learned Counsel appearing for the petitioner submitted that the Sikh Gurudwara was the defendant No. 1 in the suit and the then President of the Gurudwara was arrayed as defendant No. 2. Therefore, there was nothing to disbelieve the statement of the present petitioner that defendant No. 2 as President of the Gurudwara was also looking after the case of defendant No. 1 and there could not be any clash of interest. He further submitted that admittedly Late Balaram Patnaik, Advocate, had been engaged on behalf of defendant No. 1 and he passed away on 6.12.1993. Though the ex parte decree was passed on 30.9.1993 when Late Balaram Patnaik was alive, nothing was intimated to the present petitioner, since prior to passing of the ex parte decree, defendant No. 2, the then President of the Gurudwara who was looking after the case, had passed away on 25.5.1992. The petitioner remained under the impression that the suit had not progressed since no intimation had been received from the Advocate Late Balaram Patnaik and he came to know about the ex parte decree only in September, 1995. The application under Order 9, Rule 13, CPC could not be immediately filed thereafter as the incumbent was suffering and the application was filed in the month of November, 1995. It is also submitted by the learned counsel for petitioner that Tarasingh Bhamra who was the President of the Gurudwara at the time of filing of the application examined himself and specifically deposed in his evidence the cause for which the application under Order 9, Rule 13, CPC was filed much after the period of limitation. According to him, the said deposition along with the averments made in the application should have been accepted by the learned Munsif and the ex parte decree should have been set aside.
7. Shri A. B. Misra, learned Senior Advocate, appearing for the defendant-opposite party submitted that Late Balaram Patnaik was one of the renowned Advocate of Bhawanipatna and his death was known to the present applicant. In spite of that the present applicant did not take any step to find out the status of the case and therefore, it is not believable that the present applicant was waiting for an intimation from the office of Late Balaram Patnaik about the status of the case. Shri Misra also submitted that the ex parte decree could not be set aside as a routine matter and if the facts of the present case are looked into, there shall be no scope for interference by this Court.
8. The learned counsel for petitioner relied upon a decision of the Apex Court reported in AlR 1987 Supreme Court 1353 ; Collector, Land Acquisition, Anantnag and Anr. v. Katiji and Ors. The Apex Court in the aforesaid decision has decided that in the matter of condonation of delay, Courts should adopt liberal approach on the following grounds :
“1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. “Every day’s delay must be explained” does not mean that a pedantic approach should be made. Why not every hour’s delay, every second’s delay ? The doctrine must be applied in the rational common sense and pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides, A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is respected to do so.”
The learned counsel also relied on another decision of the Apex Court reported in AIR 1996 Supreme Court 1623 State of Haryana v. Chandra Mani and Ors. In the said case the State of Punjab & Haryana was the applicant and while considering the question of delay, the Apex Court was of the view that Government is an impersonal machinery and decisions are taken at slow pace and therefore, certain amount of latitude is not impermissible. Referring to the said decision it was argued by the learned counsel for petitioners that defendant No, 1 is the Gurudwara represented by a Committee
and after death of defendant No. 2 who was the President of the Committee then, a new President had to be nominated and therefore, there has been some delay which could have been condoned by the trial court.
Reliance is also placed by the learned counsel for petitioner on the decision reported in 1996(1) OLR 534 : Nakula Swain and Ors. v. Jogendra Das. This Court in the aforesaid decision held that the concept of “sufficient cause” is dependent on facts of each case. There cannot be a strait-jacket formula to indicate what exactly construes sufficient cause. Peculiar circumstances of each case have also to be taken into consideration on the touchstone of pragmatic parameters. In the said decision, the Court also took into consideration the fact that in many a litigation though there are number of parties, whether they are plaintiffs or defendants, all of them do not shoulder the same responsibility Ordinarily, one or two look after the litigation.
9. Shri A. B. Misra, learned Senior Advocate appearing for the opposite party, on the other hand, relied upon the decision of the Apex Court reported in AIR 1971 Supreme Court 2324 : D.L.F. Housing and Construction Co, (P) Ltd. v. Sarup Singh and Ors., and submitted that in exercise of jurisdiction under Section 115 of the Code of Civil Procedure, this court should not disturb the concurrent findings of fact arrived at by both the courts below, in absence of any finding that the courts below have either failed to exercise jurisdiction vested in them or exercised such jurisdiction which is not vested in them.
Reliance is also placed on a decision of the Allahabad High Court reported in AIR 2001 Allahabad 195 : Dulla Devi v. Dulia Devi. The said decision also speaks of jurisdiction of the Court under section 115, CPC.
A Division Bench decision of this Court reported in AIR 1988 Orissa 10 : Balaram Das v. Sarathi Dalapati and Ors. is also relied upon, wherein this Court has held that in an application for condonation of delay, each day’s delay after expiry of limitation has to be explained.
10. Keeping the aforesaid decisions in mind, I proceed to examine the averments made in the application under Order 9, Rule 13, CPC. In the said application, the petitioner has stated that defendant No. 2 Ujagar Singh who was the President of the Gurudwara was looking after the suit and the present applicant, namely, Tarasingh Bhamra had not been entrusted with the aforesaid work. Unfortunately neither Ujagar Singh nor the advocate engaged on their behalf ever intimated about the status of the case to the petitioner or the Gurudwara and they were waiting for the intimation
from the Advocate. So far as the merit of the case is concerned it was contended in the said application that defendant No. 2 Ujagar Singh was the President of the Gurudwara at the relevant time, without any authority, disposed of the property belonging to the Gurudwara, as a result of which the institution has suffered irreparable loss. Only after coming to know about the ex parte decree in the month of September, 1995, certified copy of the same was applied for. For about two months, the present applicant was not in a position to move due to his illness and after recovering from the said illness an application under Order 9, Rule 13, CPC was filed for setting aside the ex parte decree. In the evidence also, the said applicant has supported whatever has been stated in the application under Order 9, Rule 13, CPC. In his evidence he has stated that he had not attended court even for one day after receipt of the summons in the said suit and Late Balaram Patnaik, Advocate, was looking after the case on behalf of the defendants. He has also stated that even after coming to know about the ex parte decree in September, 1995 he could not file the application immediately as he was under treatment of Dr. Manoranjan Misrafrom 10.9.1995, to 27.11.1995. Shri A. B. Misra, learned Senior Advocate, may be correct in saying that this applicant Tarasingh Bhamra who is the President of the Gurudwara has not explained each day’s delay in filing the application. The decision cited and relied upon by Shri Misra in AIR 1988 Orissa 10 (supra) has no relevance in view of the decision of the Apex Court reported in AIR 1987 Supreme Court 1353 (supra). The Apex Court in the said decision has clearly observed that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have, vested right in injustice being done because of a non-deliberate delay. The decision of this Court reported in 1996(1) OLR 534 (supra) also clearly lays down that ‘sufficient cause’ does not necessarily mean explanation of delay in respect of each day and it depends on the facts and circumstances of each case. In the present case it is found that the authority of the deceased defendant No. 2 Ujagar Singh in disposing of the property of the Gurudwara is in question and the title claimed by the plaintiff over the said suit land is based on the sale deed executed by the said defendant Ujagar Singh, Therefore, the contention of Shri Misra, learned Senior Advocate appearing for the opposite party, that defendant has no case, cannot be accepted. 1 am of the view that technical ground such as jurisdiction of this Court under Section 115 of the Code of Civil Procedure as well as non-explanation of each day’s delay will not stand on the way of the Court in rendering substantial justice.
11. I, therefore, allow the revision and set aside the judgments of the courts below subject to payment of cost of Rs. 2,000/- (rupees
two thousand) by the petitioner to the opposite party within one month from today. The ex parte decree passed by the trial court is set aside and the parties are directed to take steps before the trial court.
12. Since the suit is of the year 1991, the learned Civil Judge (Junior Division), Dharamgarh, is directed to conclude the same within one year.
13. Revision allowed.