Dismissed¶25

Sarathi Rana v. Rahimuddin Khan

Orissa HC4 Apr 2025CMAPL/96/2024

Case brief

AI extract

What is this about?

Orissa High Court, Cuttack; K.R. Mohapatra, J.; CMAPL No. 96 of 2024; decision 04.04.2025; recall and restoration of CMP dismissed for non-prosecution refused; counsel's absence due to fever; Section 151 CPC application held not maintainable to recall order dismissing suit against Defendant Nos.4 and 5 for non-service of summons; remedy lies under Order IX Rule 4 CPC; suit of 2007 (C.S. No.352 of 2007, Additional Civil Judge (Senior Division), Jajpur) possibly already disposed; Petitioners: Sarathi Rana and others (Mr. Bishnu Charan Dalai, Advocate); Opp. Parties: Rahimuddin Khan and others; liberty reserved to pursue remedies available under law.

What did the court decide?

An application under Section 151 CPC was not maintainable to recall the order dated 11th October, 2022 by which C.S. No.352 of 2007 was dismissed against Defendant Nos.4 and 5.

Sarathi Rana Vs Rahimuddin Khan — Orissa HC (2025) — LawSathi Research

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Signature Not Verified

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Apr-2025 13:49:59

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IN THE HIGH COURT OF ORISSA AT CUTTACK CMAPL No. 96 OF 2024

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Sarathi Rana and others

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…. Petitioners

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Mr. Bishnu Charan Dalai, Advocate -versus-

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Rahimuddin Khan and others

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…. Opp. Parties

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CORAM: JUSTICE K.R. MOHAPATRA

ORDER

Order No.

04.04.2025

This matter is taken up through hybrid mode.

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The Petitioners in this CMAPL seek to recall the order dated 6^th March, 2024 by which CMP No.113 of 2024 was dismissed for non-prosecution and prays for restoration of the CMP to file.

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Mr. Dalai, learned counsel for the Petitioners submits that during the relevant time, learned counsel appearing for the Petitioners was suffering from fever, for which he could not appear when the matter was called on 6^th March, 2024. As such, the CMP was dismissed for non-prosecution. It is his submission that non-appearance of learned counsel for the Petitioners was not intentional and it was bona fide . The Petitioners have a fair chance of success in the CMP. Hence, he prays for recalling the order dated 6^th March, 2024 and restoration of CMP No.113 of 2024 to file.

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Upon hearing learned counsel for the Petitioners and on perusal of the record, it is apparent that this CMAPL has been filed in time. In the CMP, the Petitioners assailed the order dated 21^st November, 2023 passed by learned Additional Civil Judge (Senior Division), Jajpur in C.S. No.352 of 2007, whereby

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Signature Not Verified

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Apr-2025 13:49:59

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a n application to recall the order, by which the suit was dismissed against Defendant Nos.4 and 5 for not serving summons on them, was rejected.

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In course of hearing, Mr. Dalai, learned counsel submits that the Plaintiffs-Petitioners have a remedy under Order IX Rule 4 CPC to seek for setting aside the order dated 11^th October, 2022. On perusal of the impugned order in the CMP, it appears that an application under Section 151 CPC was filed to recall the order dated 11^th October, 2022 by which the suit was dismissed against the Defendant Nos.4 and 5.

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Taking into consideration the facts and circumstances of the case and submission of Mr. Dalai, learned counsel for the Petitioners, this Court finds that an application under Section 151 CPC was not maintainable to recall the order dated 11^th October, 2022 by which the suit, i.e., C.S. No.352 of 2007 was dismissed against Defendant Nos.4 and 5. Since the Petitioners have a remedy under Order IX Rule 4 CPC, no purpose would be served by recalling the order dated 6^th March, 2024 by which CMP No.113 of 2024 was dismissed for non-prosecution. It also appears that the suit was of the year, 2007 and in all probabilities, it might have been disposed of by now.

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