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Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMAPL No.23 of 2024 Laxmi Priya Dixit …. Petitioner(s) Jagannath Pani Mr.N.K.Sahu,Adv. -versus- …. Opposite Party(s) Mr.R.P.Mohapatra,Adv. CORAM: JUSTICE ANANDA CHANDRA BEHERA Order No. 02. ORDER 22.02.2024 1. This matter is taken up through hybrid arrangement (virtual/physical) mode. 2. This is a Civil Miscellaneous Application under Order 41 Rule 19 of the CPC, 1908, which has been filed by the Petitioner (who was the Appellant in the Second Appeal vide S.A. No.158 of 1998) praying for re-admission of the Second Appeal vide S.A. No.158 of 1998, which was dismissed for the default of the Appellant on dated 05.02.2024 i.e. for the absence of her learned senior counsel at the time of calling for hearing of the Second Appeal by stating that, the conducting learned senior counsel for the Appellant/Petitioner was engaged in an another Court at the time of calling for hearing of S.A. No.158 of 1998. For which, he was prevented from coming to this Court at the time of calling for hearing of the Second Appeal vide S.A. No.158 of 1998. So, for the Page 1 of 6 // 2 // default of the presence of the learned senior counsel of the appellant, the S.A. No.158 of 1998 was dismissed on dated 05.02.2024. The aforesaid negligence on the part of the learned counsel for the Petitioner is not deliberate and intentional one. Because, due to his engagement in the arguments of an another case in an another Court, he was not able to come to this Court at the time of calling for hearing of the Second Appeal vide S.A. No.158 of 1998 on dated 05.02.2024. For which, the Appellant/Petitioner has prayed for readmission of the Second Appeal after setting aside the order of dismissal passed on dated 05.02.2024 or else the Appellant/Petitioner shall be prejudiced seriously and she will debarred from getting the justice. 3. The Opposite Party of this CMAPL No.23 of 2024 (who was the Respondent in the Second Appeal vide S.A. No.158 of 1998) vehemently objected through his learned counsel by contending on the basis of the objection that, the Appellant/Petitioner had been protracting the hearing of the S.A. No.158 of 1998 deliberately by taking adjournments in several occasions continuously. That too, lastly on the date of the dismissal of the Second Appeal vide S.A. No.158 of 1998 i.e. on dated 05.02.2024, that Second Appeal was called on for hearing on the
Legal Reasoning
basis of its serial number at the first hour. But, at the request of the Page 2 of 6 // 3 // learned junior counsel for the Appellant, the matter was kept passed over to be heard after exhaust of all the listed matters. When after exhaust of all other matters, the passed over matter i.e. the Second Appeal vide S.A. No.158 of 1998 was called on for hearing, at that time, the learned junior counsel for the Appellant/Petitioner sought for an adjournment of hearing, to
Legal Reasoning
which, the learned counsel for the Respondent vehemently objected by drawing attention of this Court to the previous orders. 4. As it appeared from the Record that, the Second Appeal vide S.A. No.158 of 1998 is a very year old Appeal of the year 1998 and that Second Appeal had been adjourning for several dates continuously on the prayer of the Appellant/Petitioner and as the learned counsel for the Appellant/Petitioner remained absent in two occasions on dated 05.02.2024 i.e. at the time of calling for hearing at the first time and also at the time of calling for hearing at the 2nd time, then this Court was pleased to dismiss the Second Appeal vide S.A. No.158 of 1998 for the default of the Appellant/Petitioner. For which, according to the learned counsel for the Opposite Party/Respondent, the above conduct of the Petitioner and her learned counsel is not justifying for readmission of the Second Appeal vide S.A. No.158 of 1998. So, according to Page 3 of 6 // 4 // learned counsel for the Opposite Party, the CMAPL No.23 of 2024 of the Petitioner is liable to be dismissed. 5. In support of the above contentions of the learned counsel for the Petitioner for readmission of the Second Appeal, he relied upon the decisions reported in 1965 SCC OnLine Ori 85 and (1981) 2 Supreme Court Cases 788. 6. By relying upon the ratio of the aforesaid two decisions, the learned counsel for the Petitioner submitted for liberal consideration of the application for readmission of the Second Appeal vide S.A. No.158 of 1998. 7. It is the settled propositions of law as per the ratio of the decision of the Apex Court between Sumitbai & Others Vs. Paras Finance Co. that, <the Civil Procedure Code is really the rules of natural justice, which are set out in great and elaborate detail. Its purpose is to enable both the parties to get a hearing on merit.= 8. The law has also been further settled that, when the law of technicalities and the courses of substantial justice are pitted against each other, the courses of substantial justice are deserved to be preferred. 9. Here in this case at hand, when the Appellant/Petitioner is a widow lady and she is eagerly interested for readmission of the Second Appeal vide S.A. No.158 of 1998 (which was dismissed on Page 4 of 6 // 5 // dated 05.02.2024) after setting aside its dismissal order and when the provisions of the Civil Procedure Code have been enacted for compliance of the principle of natural justice to get the hearing of the cases on merit by giving opportunity to both the sides for no other reason, but only in order to avoid the multiplicity of litigations between the parties and when it is the settled propositions that, at the time of consideration of any petition for readmission/restoration of a case, the sufferings of other parties for the latches of the Petitioner/Appellant is to be considered for compensating his/her losses/sufferings through payment of costs, then at this juncture, by taking the above principles of law along with the facts and circumstances into account, it is held that, the interest of justice shall bestly be served, if the dismissal order of the Second Appeal vide S.A. No.158 of 1998 passed on dated 05.02.2024 for the default of the Appellant/Petitioner is to be set aside for its re-admission on payment of cost of Rs.1,500/-(Rupees One Thoussand Five Hundred) by the Petitioner to the Opposite Party. 10. As this final order in CMAPL No.23 of 2024 was dictating in open Court in presence of the learned counsels of both the sides and soon after the above dictation regarding the payment of the above cost, the learned counsel for the Petitioner paid the same i.e. Page 5 of 6 // 6 // Rs.1,500/- to the Opposite Party through his learned counsel, for which, the aforesaid order regarding the payment of cost is complied. 11. Due to the compliance of the order regarding payment of cost by the Petitioner to the Opposite Party, the order of dismissal of the Second Appeal vide S.A. No.158 of 1998 passed on 05.02.2024 is set aside. So, due to setting aside of the order of dismissal passed in the Second Appeal vide S.A. No.158 of 1998 on dated 05.02.2024, that Second Appeal be readmitted. 12.
Decision
Accordingly, the CMAPL is disposed of finally. Utkalika (A.C. Behera) Judge Signature Not Verified Digitally Signed Signed by: UTKALIKA NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 28-Feb-2024 14:00:40 Page 6 of 6