Krushna Chandra Sahu Vs. Manga Sahu - Court Judgment

Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - the said suit was one for declaration of right, title and interest as well as permanent injunction. 200.00. the defendant-petitioner still failed to deposit the said cost for which he was once again set ex parte on 13.8.2003 and an ex parte decree was passed on 23rd august, 2003. the defendant-petitioner then filed another petition under order 9, rule 13 cpc to set aside the ex parte decree which was registered as c. 1 of 2004. the appellate court also considered all the facts and circumstances of the case as well as the evidence adduced in the case and came to the conclusion that the order of the trial court dismissing the cma under order 9, rule 13 cpc was just, proper and should not be interfered with and dismissed the fao which order of the appellate court is assailed before this court. tripathy, learned counsel for the petitioner submits that the petitioner is a poor man. thus the action of the petitioner would clearly reveal that he was all along trying to prolong the litigation as long as possible. fact remains that the petitioner did not avail the opportunity granted to him not once, but twice and his action clearly reveals that he intentionally allowed the suit to proceed ex parte.ordera.s. naidu, j. 1. the petitioner was defendant in t.s.no. 13 of 2000 in the court of the civil judge (jd), gunupur. the said suit was one for declaration of right, title and interest as well as permanent injunction. notice of the suit was issued to the defendant and the suit was posted to 27.11.2001 for appearance of the defendant. the defendant-petitioner however having not appeared he was set ex parte. on 26.3.2002 he filed a petition under order 9, rule 13 of c.p.c. praying to set aside the ex parte order. the said petition was allowed subject to payment of cost of rs. 50.00. the cost having not been paid he was once again set ex parte. thereafter another petition was filed by him under order 9, rule 13, cpc with section 151 of cpc to set aside the ex parte order. the said petition was allowed subject to payment of cost of rs. 200.00. the defendant-petitioner still failed to deposit the said cost for which he was once again set ex parte on 13.8.2003 and an ex parte decree was passed on 23rd august, 2003. the defendant-petitioner then filed another petition under order 9, rule 13 cpc to set aside the ex parte decree which was registered as c.m.a.no. 6 of 2003. the present opposite party who was the plaintiff in the court below filed objection taking the stand that the defendant-petitioner was all along aware of the proceedings of the suit, but intentionally did not pay the costs awarded with an oblique motive to harass the plaintiff. thus the discretion granted by the court having not been availed, the defendant deserved no sympathy.2. the trial court after hearing the parties dismissed the cma. an appeal was thereafter filed by the defendant-petitioner against the order of the trial court which was registered as fao no. 1 of 2004. the appellate court also considered all the facts and circumstances of the case as well as the evidence adduced in the case and came to the conclusion that the order of the trial court dismissing the cma under order 9, rule 13 cpc was just, proper and should not be interfered with and dismissed the fao which order of the appellate court is assailed before this court.3. mr. tripathy, learned counsel for the petitioner submits that the petitioner is a poor man. he had no financial capacity to pay the cost. non-payment of cost was not deliberate, but had occasioned due to reasons beyond the control of the petitioner.mr. c.a.rao, for opposite party repudiates the submission of mr. tripathy and according to him the defendant intentionally did not. appear in court though noticed and allowed the suit to proceed ex parte and then filed the petition for setting aside the ex parte order. though objected, the trial court took a lenient view and set aside the ex parte order by awarding a paltry cost of rs. 50.00 but the said cost was deliberately not paid for which the defendant was again set ex parte. thereafter, with a view to prolong the litigation another petition was filed for setting aside the ex parte order which was strongly objected by the plaintiff. but once again the trial court set aside the ex parte order awarding a cost of rs. 200.00. the defendant still did not pay the said cost and allowed the matter to proceed and waited till he was again set ex parte. thereafter he again filed another petition under order 9. rule 13 cpc to set aside the ex parte order. thus the action of the petitioner would clearly reveal that he was all along trying to prolong the litigation as long as possible. mr. rao strenuously contended that the petitioner having not come to court with clean hands, he deserves no sympathy.4. i have heard learned counsel for both sides at length and perused the evidence adduced before the trial court. fact remains that the petitioner did not avail the opportunity granted to him not once, but twice and his action clearly reveals that he intentionally allowed the suit to proceed ex parte. the courts below on analysis of the evidence have rightly come to the conclusion that the petitioner deserved no sympathy. but then it appears that the petitioner is a betel shop-keeper. according to mr. tripathy the income of the petitioner did not permit him to deposit the cost awarded by the trial court. but then if the ex parte decree is set aside, that would cause great prejudice to the plaintiff. to maintain equity and in order to avoid miscarriage of justice, this court feels that the ex parte decree passed in the suit should be set aside and an effectual adjudication should be made subject to payment of rs. 1,000.00 as cost by the defendant to the plaintiff within three weeks hence which would mitigate the harassment caused to the plaintiff. on such payment, the trial court will restore the suit and proceed in accordance with law.the w.p.(c) is accordingly disposed of.this judgment be communicated to the court below at the cost of the petitioner.

Judgment:
ORDER

A.S. Naidu, J.

1. The petitioner was defendant in T.S.No. 13 of 2000 in the Court of the Civil Judge (JD), Gunupur. The said suit was one for declaration of right, title and interest as well as permanent injunction. Notice of the suit was issued to the defendant and the suit was posted to 27.11.2001 for appearance of the defendant. The defendant-petitioner however having not appeared he was set ex parte. On 26.3.2002 he filed a petition under Order 9, Rule 13 of C.P.C. praying to set aside the ex parte order. The said petition was allowed subject to payment of cost of Rs. 50.00. The cost having not been paid he was once again set ex parte. Thereafter another petition was filed by him under Order 9, Rule 13, CPC with Section 151 of CPC to set aside the ex parte order. The said petition was allowed subject to payment of cost of Rs. 200.00. The defendant-petitioner still failed to deposit the said cost for which he was once again set ex parte on 13.8.2003 and an ex parte decree was passed on 23rd August, 2003. The defendant-petitioner then filed another petition under Order 9, Rule 13 CPC to set aside the ex parte decree which was registered as C.M.A.No. 6 of 2003. The present opposite party who was the plaintiff in the Court below filed objection taking the stand that the defendant-petitioner was all along aware of the proceedings of the suit, but intentionally did not pay the costs awarded with an oblique motive to harass the plaintiff. Thus the discretion granted by the Court having not been availed, the defendant deserved no sympathy.

2. The trial Court after hearing the parties dismissed the CMA. An appeal was thereafter filed by the defendant-petitioner against the order of the trial Court which was registered as FAO No. 1 of 2004. The appellate Court also considered all the facts and circumstances of the case as well as the evidence adduced in the case and came to the conclusion that the order of the trial Court dismissing the CMA under Order 9, Rule 13 CPC was just, proper and should not be interfered with and dismissed the FAO which order of the appellate Court is assailed before this Court.

3. Mr. Tripathy, learned counsel for the petitioner submits that the petitioner is a poor man. He had no financial capacity to pay the cost. Non-payment of cost was not deliberate, but had occasioned due to reasons beyond the control of the petitioner.

Mr. C.A.Rao, for opposite party repudiates the submission of Mr. Tripathy and according to him the defendant intentionally did not. appear in Court though noticed and allowed the suit to proceed ex parte and then filed the petition for setting aside the ex parte order. Though objected, the trial Court took a lenient view and set aside the ex parte order by awarding a paltry cost of Rs. 50.00 but the said cost was deliberately not paid for which the defendant was again set ex parte. Thereafter, with a view to prolong the litigation another petition was filed for setting aside the ex parte order which was strongly objected by the plaintiff. But once again the trial Court set aside the ex parte order awarding a cost of Rs. 200.00. The defendant still did not pay the said cost and allowed the matter to proceed and waited till he was again set ex parte. Thereafter he again filed another petition under Order 9. Rule 13 CPC to set aside the ex parte order. Thus the action of the petitioner would clearly reveal that he was all along trying to prolong the litigation as long as possible. Mr. Rao strenuously contended that the petitioner having not come to Court with clean hands, he deserves no sympathy.

4. I have heard learned counsel for both sides at length and perused the evidence adduced before the trial Court. Fact remains that the petitioner did not avail the opportunity granted to him not once, but twice and his action clearly reveals that he intentionally allowed the suit to proceed ex parte. The Courts below on analysis of the evidence have rightly come to the conclusion that the petitioner deserved no sympathy. But then it appears that the petitioner is a betel shop-keeper. According to Mr. Tripathy the income of the petitioner did not permit him to deposit the cost awarded by the trial Court. But then if the ex parte decree is set aside, that would cause great prejudice to the plaintiff. To maintain equity and in order to avoid miscarriage of justice, this Court feels that the ex parte decree passed in the suit should be set aside and an effectual adjudication should be made subject to payment of Rs. 1,000.00 as cost by the defendant to the plaintiff within three weeks hence which would mitigate the harassment caused to the plaintiff. On such payment, the trial Court will restore the suit and proceed in accordance with law.

The W.P.(C) is accordingly disposed of.

This judgment be communicated to the Court below at the cost of the petitioner.