Judgment:
ORDER
1. In this application correctness of orders passed by learned Civil Judge, Senior Division, First Court, Cuttack and learned Second Addl. District Judge, Cuttack, while dealing with acceptability of petition filed by petitioner under Order 9, Rule 13 of the Code of Civil Procedure, 1908 (in short, the 'Code') for setting aside ex parte decree passed against him in T.S. No. 677 of 1986, is questioned.
2. Background facts undisputed essentially, are as follows:
Opposite Parties herein brought T.S. No. 677 of 1986 against one Moti Bewa for specific performance of contract. Consequent upon the death of Moti, petitioner was substituted as defendant in her place as she was stated to be adopted mother of the petitioner. He traversed pleadings of the plaintiffs by filing written statement; but did not take any steps after 12-3-1991. He was set ex parte, suit was heard on 5-4-1991 and 4-4-1991 in his absence, and judgment decreeing the suit ex parte was pronounced on 1-5-1991. After sealing and signing of the decree, plaintiffs deposited the balance consideration amount and took steps to get the requires sale deed executed through Court. Petitioner refused to receive the notice relating to draft sale deed, and learned Civil Judge in his order dated 11-12-1993 held service of notice on him to be sufficient, and fixed 11-5-1994 as the date for filing sale deed on stamp paper. On the said date, petitioner appeared and filed a petition for stay of further proceeding, and on 12-5-1994 he filed an application under Order9, Rule 13 of the Code along with a petition under Section 5 of the Indian Limitation Act, 1963 (in short, 'Limitation Act') for condoning delay. The application for setting aside the ex parte decree was registered as Misc. Case No. 272 of 1994. It was stated that on account of laches of his counsel there was non-appearance. Learned Civil Judge on analysis of facts situation and taking note of petitioner's participation is several proceedings on different dates, came to hold that plea of petitioner, throwing blames on his counsel was not acceptable. The application was accordingly dismissed. Appeal before learned Second Addl. District Judge not with the same fate. Both learned Civil Judge and learned Second Addl. District Judge held that factual position was distorted and the plea taken by petitioner regarding absence was not tenable.
3. In support of the revision application, Mr. P.K. Routrary, learned counsel for petitioner submitted that decree obtained was the outcome of fraud practised on Court, and there was suppression of fact that a proceeding under Urban Land (Ceiling and Regulation) Act, 1975 (is short, 'Ceiling Act') was pending and in view of the bar prescribed under Section 42 of the said Act, there could not have been any adjudication, much less in favour of the opposite parties. It is further submitted that a liberal attitude is warranted while dealing with an applications for condonation of delay. A party does not stand to gain by abating from a proceeding and therefore, normal apporach of the Court should be to accept prayer for restoration and/or to condone delay rather than reject it. Mr. S.K. Panda, learned counsel for opposite parties on the other hand submitted that petitioner has not come to this Court with clean hands. In large number of cases before various forums he was actively participating. In fact he was participating in several cases which were before this Court. It is further submitted that an application under Section 47 of the Code has been filed questioning executability of decree on the ground that it is an outcome of fraud. Therefore, the application under consideration deserves dismissal.
4. It cannot be gainsaid that while dealing with an application for condonation of delay, liberal attitude is warranted. This position was succinctly stated by the apex Court in Collector, Land Acquisition, Anantnag v. Mst. Katijl, AIR 1987 SC 1353. Legislature has conferred power to condone delay by enacting Section 5 of the Limitation Act. The object is to enable Courts to do substantial justice by deciding cases on merits. The expression 'sufficient cause' used in the provision is wide enough and is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice, that being the life-purpose for the existence of the institution of Courts. Ordinarily a litigant does not stand to benefit by seeking relief late. 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. 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. 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.
5. Keeping in view the aforesaid well established norms, it has to be seen whether delay was occasioned deliberately or on account of culpable negligence or on account of mala fides. These are matters which have to be considered by the Court dealing with an application for condonation. Factual aspects are to be considered by the Court to come to a conclusion whether there was any deliberateness involved in presenting the application belatedly. In the case at hand, Courts below have found conduct of petitioner to be not above board. After taking note of vigour with which petitioner was participating in various proceedings in various Courts plea of petitioner was turned down. Blame was thrown on the shoulders of the counsel. By merely throwing blame on the counsel, a case of restoration would not be in all cases made out. Circumstances and facts must support the stand taken. Power of revision given under Section 115 of the Code can be exercised within parameter of restriction imposed by section itself. There has been substantial change in the provision by Amendment Act of 1976. It gives power to High Court to call for records of any case which has been decided by any Court subordinate to it and on which no appeal lies. The power can be exercised if such subordinate Court appears (a) to have exercised jurisdiction not vested in it by law, or (b) to have failed to exercise jurisdiction so vested, or (c) to have acted in exercise of its jurisdiction illegally or with material irregularity. The proviso added by Amendment Act of 1976 lays down a further requirement to the effect that High Court shall not vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where (a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or of the proceeding, or (b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. It is not within scope of High Court's power to enter into merits of evidence. High Court is not to usually interfere if result of irregularity of lower Court has been to promote justice. Only where impugned order is perverse in the sense that it is in gross violation of rule of law or procedure and not otherwise, there is scope for interference.
6. The position if firmly established that while exercising revisional jurisdiction, it is not competent to the High Court to correct errors of fact however gross or errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. The words 'illegally and with material irregularity', as used in Clause (c) also do not cover either errors of fact or law. They do not refer to the decision arrived at, but merely to the manner in which it is reached. See D.L.F. Housing and Construction Co. (P.) Ltd. v. Sarup Singh, AIR 1971 SC 2324 and Sher Singh (dead) through L.Rs. v. Joint Director of Consolidation, AIR 1978 SC 1841). High Court is not entitled to re-examine or re-assess the evidence on record and substitute its own findings of fact for those of the subordinate Court. Findings of facts generally are treated as conclusive and not open to revision.
7. The nature, quality and extent of appellate jurisdiction being exercised in first appeal and revisional jurisdiction are very different. The limits of revisional jurisdiction are prescribed and its boundaries defined by Section 115 of the Code. Under that provision revisional jurisdiction is to be exercised by the High Court in a case in which no appeal lies to it from the decision of a subordinate Court if it appears to it that the subordinate Court has exercised jurisdiction not vested in it by law or has failed to exercise a jurisdiction vested in it by law or has acted in the exercise of its jurisdiction illegally or with material irregularity. The exercise of revisional jurisdiction is thus confined to questions of jurisdiction. While in first appeal the Court is free to decide all questions of fact and law which arise in the case, in the exercise of its revisional jurisdiction the High Court is not entitled to re-examine or re-assess the evidence on record and substitute its own findings on facts for those of the subordinate Court. (See Manick Chandra Nandy v. Dehdas Nandy, AIR 1986 SC 4467 and Smt. Rajbir Kaur v. S. Chokgairi and Co., AIR 1988 SC 1445).
8. After the amendment of Section 115 by the Amendment Act of 1976, the position is manifest that only such orders can be reversed which if allowed to stand would occasion the failure of justice or cause an irreparable injury to the party against whom it was made or if a favourable order, instead of the impugned order that had been passed by the Court below, in favour of the party applying for revision against the impugned order would have finally disposed of the suit or the proceeding in question. Even if the order falls under any of the clauses of Section 115(1) the High Court will have no jurisdiction to vary or reverse the order, unless -the conditions stipulated in the proviso exist.
9. In the case at hand concurrent findings have been recorded by the Courts below that there was no sufficient cause to condone delay in making application to set aside the ex parte decree. The findings have been recorded with reference to facts and not on the basis of non-existent material and/or baseless assumptions. There is no scope for interference in such a case.
10. Judged in the aforesaid background, I do not find this case to be one where revisional power is to be exercised. It is stated that as objection has been filed in terms of Section 47 of the Code. The same shall be decided on its own merits.
The revision fails and is dismissed. No costs.