Pradip Mohanty, J.
1. In this Civil Revision, the petitioner challenges the judgment dated 17.12.2004 of the Ad hoc Addl. District Judge (FTC-I), Cuttack in Misc. Appeal No. 119 of 2002 reversing the order dated 02.09.2002 passed by the Civil Judge (Jr. Division), 1st Court, Cuttack rejecting an application filed under Order 9, Rule 13 C.P.C. registered as Misc. Case No. 152 of 2000.
2. The brief fact of the case is that one Ashrafun Nisha Begum and her husband Md. Abdullah Shariff on 17.12.1984 had purchased jointly 16 numbers of National Savings Certificates amounting to Rs. 80,000/ from the opposite party. They had made their sons, namely, Md. Nurullah Shariff and Md, Rahimtullah Shariff as nominees'. After the death of Md. Abdullah Shariff on 06.01.1988, Rahimtullah Shariff tried to encash the NSCs without the consent of Ashrafun Nisha Begum in collusion with the opposite party. As such, Ashrafun Nisha Begum filed T.S. No. 364 of 1989 before the learned Civil Judge (Junior Division) 1st Court, Cuttack with a prayer to restrain the opposite party from making any payment either towards interest or cost of the NSCs to Md. Rahimtullah Shariff or to anybody else excepting her and for depositing the same in Savings Bank Account No. 268450, which jointly belonged to the petitioner and Ashrafun Nisha Begum. The said title suit was decreed on 26.08.1991 directing the opposite party to deposit the amount in S.B. Account No. 268450. Despite such direction the opposite party did not deposit the amount in the joint savings bank account. Ashrafun Nisha Begum made a representation but the opposite party did not take any steps. Finding no other way, she filed Execution Case No. 9 of 1992 to execute the decree passed in T.S. No. 364 of 1989. During pendency of said execution case, Ashrafun Nisha-Begum died on 18.06.1992. The petitioner being the sole nominee of his mother Ashrafun Nisha Begum contested the execution case. By order dated 23.07.1992 the learned Civil Judge directed the opposite party to deposit the matured amount of the NSCS in the aforesaid S.B. Account. The opposite party on 14.10.1997 deposited a sum of Rs. 94,430.50 and the petitioner withdrew the same being the sole account holder. As interest was paid till the date of maturity and not till the date of payment, i.e., 14.10.1997, the petitioner filed T.S. No. 184 of 1998 for payment of interest and other dues. The opposite party entered appearance through his advocate and on 14.05.1999 filed written statement. When the suit was posted for hearing, the opposite party remained absent. Despite several opportunities, the opposite party took no steps to contest the suit. The petitioner also personally tried to procure the attendance of the opposite party and issued notice to him to participate in the hearing, but the opposite party did not turn up. Ultimately, on 31.01.2000 the suit was decreed ex parte directing the opposite party to pay interest on maturity value of the NSCs at the government rate of interest from the date of maturity till the actual date of deposit made in the S.B. account. The opposite party, to set aside the ex parte decree, filed a petition on 19.06.2000 under Order 9 Rule 13 CPC which was registered as Misc. Case No. 152 of 2000. Together with the said misc. case, the opposite party also filed a petition under Section 5 of the Limitation Act. The learned Civil Judge (Junior Division), 1st Court, Cuttack on considering of the evidence and upon hearing the parties rejected petition under Section 5 of the Limitation Act and dismissed the misc. case for setting aside ex parte decree by order dated 02.09.2002. Against that order, the opposite party preferred Misc. Appeal No. 119 of 2002 before the learned Ad hoc Additional District Judge, FTC No. I, Cuttack. After hearing the parties, the learned Ad 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 wilfully. 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 non-appearance of the opposite party on the date fixed inspite 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. Swaraj Developers and Ors. 2003 (I) OLR 673; Golam Mohammad and Anr. v. Sk. Fakir and Ors. : 2008 (I) OLR 235; Sitaram alias Mahendra Ghosh v. Sri Antaryami Mohapatra and 18 Ors. etc. : 2003 (II) OLR 409; Vidyodaya Trust and Ors. v. Mohan Prasad and Ors. : (2006) 7 S.C.C. 452 and Narayan Dash v. Gouranga Charan Dash and Ors. 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 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 inspite 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 C.P.C. 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.
6. 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 delay had occasioned. In such circumstances, it cannot be said that the appellate Court has committed any illegality or material irregularity in allowing the prayer of the opposite party. This Court opines that the impugned order has been passed to do complete justice and the same does not warrant interference of this Court. However, the cost of Rs. 5000/-, as imposed by the appellate Court, appears to be inadequate. Therefore, this Court modifies the impugned judgment to the extent that the opposite party shall pay cost of Rs. 20,000/- (twenty thousand) instead of Rs. 5,000/- to the petitioner. Since petitioner has already received Rs. 5,000/- before filing of the civil revision, this Court directs the opposite party to pay the balance amount of Rs. 15,000/- (fifteen thousand) to the petitioner in the shape of a bank draft on or before 21st December, 2009. This Court further directs the trial Court to complete the trial of the suit by the end of April, 2010, since the matter is lingering from the year 1989. Both the parties undertake to cooperate with the trial.
7. The CRP is disposed of with the modification of the impugned order to the extent indicated.