C.M.P. No.1473 of 2025 IN THE HIGH COURT OF ORISSA AT CUTTACK C.M.P. No.1473 of 2025 (In the matter of an application under Article 227 of the Constitution of India) Gyasuddin Khan .... Petitioner -versus- Kahkashan Khan .... Opposite Party Advocate(s) appeared in this case:- For Petitioner : Mr. S.K.Mohanty, Advocate For Opposite Party : Ms. K.Khan, In Person along with her son Mr. Arshad Khan CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 9th January 2026 B.P. Routray, J. 1. Heard Mr. S.K.Mohanty, learned counsel for the Petitioner and Ms. K.Khan, who appears in person along with her son Mr. A.Khan. Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 15-Jan-2026 16:22:10 Signature Not Verified C.M.P. No.1473 of 2025 2. Present CMP is directed against order dated 31st July 2025 passed by 2nd Additional Senior Civil Judge, Bhubaneswar in C.M.A. No.149 of 2019 (arising out of C.S. No.115 of 2008), wherein the prayer of the Opposite Party under Order 9 Rule 13 of CPC was allowed. 3. The suit was filed by present Opposite Party as the Plaintiff praying for declaration of right title interest over the suit property. Present Petitioner who is the Defendant in the suit was the husband of the Plaintiff. The suit was dismissed for non-prosecution on 2nd January 2015. It needs to be mentioned here that a counter claim was filed by the Defendant in the suit and the same after dismissal of the suit for non-prosecution continued to be there and in the counter claim the Plaintiff was set ex-parte. Ultimately, ex-parte judgment and decree dated 27th April 2019 was passed in favour of the Defendant. Thereafter, the Plaintiff filed an application under Order 9 Rule 13 to set aside said ex-parte judgment and decree. The learned Trial Court upon adjudication of the prayer of the Plaintiff under Order 9 Rule 13 made in C.M.A. No.149 of 2019, set aside the ex-parte judgment and decree dated 27th April 2019. It is further observed by the learned Trial Court that as a consequence of the Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 15-Jan-2026 16:22:10 Signature Not Verified C.M.P. No.1473 of 2025 same, the original suit was restored to file and the counter claim being part of the same proceeding was also revived for fresh adjudication on merits. 4. It is submitted on behalf of the Defendant-Petitioner that the order of the learned Trial Court dated 31st July 2025 is illegal not only for the reason that it has ignored the objection of the Defendant regarding alleged illness of the Plaintiff, but the learned Trial Court has also exceeded its jurisdiction directing restoration of the suit though the same was never prayed for by the Plaintiff. 5. In course of hearing, it is admitted on the part of the Plaintiff (present Opposite Party) that in her application under Order 9 Rule 13 of CPC the prayer was to the effect to set aside the ex-parte judgment and decree dated 27th April 2019 passed in favour of the Defendant in the counter claim. Thus when it is clear that the Plaintiff has not prayed for restoration of the suit upon its dismissal for non-prosecution, learned Trial Court cannot direct for restoration of the same while dealing with the prayer in a separate petition under Order 9 Rule 13 of the CPC. Thus, it is concluded that such order of the learned Trial Court directing for restoration of the suit without Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 15-Jan-2026 16:22:10 Signature Not Verified C.M.P. No.1473 of 2025 any prayer made on behalf of the Plaintiff under appropriate provisions or without filing any petition to that effect, is unsustainable and accordingly set aside. 6. So far as the challenge of the present Petitioner with regard to setting aside the ex-parte judgment and decree dated 27th April 2019 is concerned, it is seen from the impugned order dated 31st July 2025 that the parties have contested their case rigorously by adducing evidence from both sides. When the Plaintiff has examined herself as P.W.1, the Defendant examined him as O.P.W.1. 7. Perusal of the copy of CMA application (Annexure-2) and the objection to the same by the Defendant, reveals that when the Plaintiff has stated about her illness on the ground for non- appearance along with negligence on the part of the conducting counsel engaged by her, the objection of the Defendant is restricted to the extent that the Plaintiff has stated falsehood about her illness during the relevant time. It was further stated by the Defendant that at the relevant time the Plaintiff was conducting different other cases against the Defendant in other forums. Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 15-Jan-2026 16:22:10 Signature Not Verified C.M.P. No.1473 of 2025 8. A perusal of the depositions of both parties and the medical documents filed by her marked from Ext.4 to 7 is apparently making out a case in favour of the Plaintiff regarding her stand taken on the CMA application. After all the matter is regarding grant of opportunity of hearing to the party who has the right to object as a substantial right. The Defendant who was the husband of the Plaintiff has raised his counter claim over the property in respect of which the Plaintiff has sought for declaration of her right title interest. Thus, no technicality should stand on the way to deprive the opportunity of a party either to substantiate his cause or to defend her case. The principles so far as the provisions under Oder 9 Rule 13 in order to grant opportunity in favour of the defeating party, as a matter of sufficient cause, is concerned the same have been well- settled. This court in Food Corporation of India v. Jugal Kishore Agrawal, 2001(II) OLR 98, have observed that the expression “sufficient cause” should be considered with pragmatism in justice oriented process approach rather than the technical detention of sufficient cause for explaining every days delay. Further in Nakula Swain and Others v. Jogendra Das, 1996 (I) OLR 534, it has been stated that the concept of “sufficient cause” is depending on facts of Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 15-Jan-2026 16:22:10 Signature Not Verified C.M.P. No.1473 of 2025 each case and there cannot be a straight jacket formula to indicate what exactly construes sufficient cause, where peculiar circumstances of each case has also to be taken into consideration. 9. In Parimal vrs. Veena alias Bharti, 2011 (3) SCC 545, Hon’ble Supreme Court dealing with a case relating to Order 9 Rule 13 of the CPC have observed as follows: “13. “Sufficient cause” is an expression which has been used in a large number of statutes. The meaning of the word “sufficient” is “adequate” or “enough”, inasmuch as may be necessary to answer the purpose intended. Therefore, word “sufficient” embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, “sufficient cause” means that the party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been “not acting diligently” or “remaining inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. (Vide Ramlal v. Rewa Coalfields Ltd. [AIR 1962 SC 361], Lonand Grampanchayat v. Ramgiri Gosavi [AIR 1968 SC 222], Surinder Singh Sibia v. Vijay Kumar Sood [(1992) 1 SCC 70 : AIR 1992 SC Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 15-Jan-2026 16:22:10 Signature Not Verified C.M.P. No.1473 of 2025 1540] and Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corpn. [(2010) 5 SCC 459] 14. In Arjun Singh v. Mohindra Kumar [AIR 1964 SC 993] this Court observed that every good cause is a sufficient cause and must offer an explanation for non-appearance. The only difference between a “good cause” and “sufficient cause” is that the requirement of a good cause is complied with on a lesser degree of proof than that of a “sufficient cause”. (See also Brij Indar Singh v. Kanshi Ram [(1916- 17) 44 IA 218 : AIR 1917 PC 156] , Manindra Land and Building Corpn. Ltd. v. Bhutnath Banerjee [AIR 1964 SC 1336] and Mata Din v. A. Narayanan [(1969) 2 SCC 770 : AIR 1970 SC 1953] .) 15 [Ed. : Para 15 corrected vide Official Corrigendum No. F.3/Ed.B.J./14/2011 dated 25-2-2011.] . While deciding whether there is sufficient cause or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it. (Vide State of Bihar v. Kameshwar Prasad Singh [(2000) 9 SCC 94 : 2000 SCC (L&S) 845 : AIR 2000 SC 2306], Madanlal v. Shyamlal [(2002) 1 SCC 535 : AIR 2002 SC 100], Davinder Pal Sehgal v. Partap Steel Rolling Mills (P) Ltd. [(2002) 3 SCC 156 : AIR 2002 SC 451], Ram Nath Sao v. Gobardhan Sao [(2002) 3 SCC 195 : AIR 2002 SC 1201], Kaushalya Devi v. Prem Chand [(2005) 10 SCC 127], Srei International Finance Ltd. v. Fairgrowth Financial Services Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 15-Jan-2026 16:22:10 Signature Not Verified C.M.P. No.1473 of 2025 Ltd. [(2005) 13 SCC 95] and Reena Sadh v. Anjana Enterprises [(2008) 12 SCC 589 : AIR 2008 SC 2054] .) 16. In order to determine the application under Order 9 Rule 13 CPC, the test that has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straitjacket formula of universal application.” 10. In the given facts of the case, it is ascertained in course of hearing that the application for setting aside the ex-parte judgment and decree was filed with ten months delay. At the same time, considering the substantial right of the parties and taking note of the cause shown by the Plaintiff supported in her evidence including oral evidence, no reason is found to interfere with the impugned order to reject the prayer of the Plaintiff. So, the prayer setting aside the ex-parte decree granted in the counter claim has been rightly allowed by learned Trial Court in order to grant opportunity to both parties to present their case substantially. As such, the impugned order is confirmed to the extent of setting aside the ex-parte Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 15-Jan-2026 16:22:10 Signature Not Verified C.M.P. No.1473 of 2025 judgment and decree dated 27th April 2019 as well as order dated 20th January 2018, i.e. the order setting the Plaintiff ex-parte in the counter claim. 11. It goes without saying that as observed in earlier paragraph, the order of the learned Trial Court regarding restoration of the suit is set aside. 12. With aforesaid observations and directions, the CMP is disposed of. 13. The copies of the objection and the depositions, filed in course of hearing, are kept on record. (B.P. Routray) Judge S.Das/Sr.Steno