The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRP No.08 of 2023 Naresh Kumar Agrawal …. Mr. A.P.Bose, Advocate Petitioner -versus- Ramesh Ku. Agrawal & others …. Opp.Parties Mr.S.R.Singh Samant, Advocate for O.P.Nos.1 to 6 Mr.D.P.Nanda, Sr.Advocate For O.P.No.10 CORAM: JUSTICE A.K. MOHAPATRA Order No.
Decision
ORDER 09.05.2023 04. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard Mr.A.P.Bose, learned counsel for the petitioner as well as Mr.S.R.Singh Samant, learned counsel appearing for Opposite Party Nos. 1 to 6 and Mr.D.P.Nanda, learned counsel appearing for Opposite Party No.10. 3. The present revision application has been filed by the Petitioner under Section 115 of the Code of Civil Procedure challenging the order dated 20.01.2023 passed in R.F.A.No.04 of 2014 by the leaned 1st Additional District Judge, Rourkela. 4. Mr.A.P.Bose, learned counsel appearing for the Petitioner at the outset submitted that the learned First Appellate Court has condoned inordinate delay of four years without there being any sufficient cause shown by the private Opposite Parties for condonation of such delay. Learned counsel for the Petitioner also submitted that in view of the settled position of law, so far as // 2 // condonation of delay is concerned, the private Opposite Parties are duty bound to explain each date of delay in preferring the application before the 1st appellate court. Since they failed to do so the application filed by them under Section 5 of Limitation Act for condonation of delay is devoid of merit and the learned court below should not have allowed the same by virtue of the impugned order dated 20.01.2023. In course of his argument, Mr.Bose, learned counsel for the Petitioner argued with regard to the locus standi of Opposite parties and the maintainability of the appeal at their instance. He also submitted that the will in dispute was executed by the father of the parties and accordingly, it was submitted that it was well within the jurisdiction to execute the will in favour of the persons he wants to bequeath such property. On such ground, learned counsel for the Petitioner challenges the order dated 20.01.2023. 5. It is further contended by MrBose, learned counsel for the Petitioner that earlier the Petitioner had approached this Court in SAO No.15 of 2015 challenging the order dated 30.06.2015 passed by the 1st Additional District Judge, Rourkela in RFA No.04 of 2014. A coordinate bench of this Court considering the said application vide order dated 29.11.2022 disposed of the SAO by setting aside the order dated 19.06.2015 passed in RFA No.04 of 2014. Further, a direction was given to the 1st Appellate Court to take up the appeal afresh and decide the petition filed by the private respondents on the question of limitation as well as on the question of grant of leave. The coordinate bench further directed on consideration of both the Petitions by passing an appropriate order, the 1st appellate Court shall proceed with the appeal on merit by giving due opportunity of hearing to both the parties. Finally the coordinate bench keeping in view the fact that the appeal is of the year 2014, the 1st appellate // 3 // court was directed to decide the petition for condonation of delay and grant of leave within a period of one month after receipt of copy of the order. Further, it was also directed to decide and dispose of the appeal finally within a period of six months. 6. Referring to the aforesaid judgment dated 29.11.2022 in SAO No.15 of 2015, learned counsel for the Petitioner submitted that although there was a direction to consider the condonation of delay application and passing of an appropriate order but the 1st appellate Court has not complied with such direction as the condonation of delay application has not been considered in its proper perspective and although there was no justifiable ground to condone the delay, has condoned the delay. 7. Learned counsel appearing for the private Opposite parties on the other hand submitted that they are the legal heirs of recorded owner. It was also contended that on the basis of the alleged will which is alleged to have been executed by the father of the parties, a suit was filed without impleading the private Opposite parties as defendant to the said suit. In the said suit filed at the instance of the Petitioner, the judgment and decree has been obtained behind the back of the Opposite Parties. Such judgment and decree affect their right, therefore, it was stated by the learned counsel appearing for the Opposite Parties that once they were not parties before the trial Court, they had no knowledge about the judgment and decree sought to be challenged by filing appeal. Therefore, the question of limitation in filing the appeal is to be considered leniently considering the background facts of the present case. It is also contended that only after coming to know about the judgment and decree the private Opposite Parties immediately approached the Court by filing an application before the appellate court seeking leave // 4 // to file an appeal as their interest is likely to be affected by the judgment and decree for which they have not arrayed as parties. 8. Learned counsel appearing for the private Opposite Parties also referring to the judgment of this Court in SAO No15 of 2015 and contended the background facts and factual position directed the 1st Appellate Court that a coordinate Bench after analyzing to consider the condonation of delay application as well as the leave application within a stipulated period of time. Accordingly, the 1st Appellate Court pursuant to the order passed by this Court in SAO No.15 of 2015 has disposed of the condonation of delay application vide order dated 20.1.2023, which has been challenged in the present Civil Revision at the instance of the Petitioner. The Private Opposite Parties also contended that there is no occasion to know about the existence of the judgment and decree as they were not parties. Once the same was came to their knowledge and found that the same will cause serious prejudice to their right, they approached the 1st appellate court seeking a leave on the basis of such leave they wanted to assail the judgment and decree passed by the trial court. 9. Upon hearing learned counsel for the parties and upon a careful examination of the impugned order dated 20.01.2023 passed in RFA No.04 of 2014 and keeping in view the background facts of the present case, this Court is of the considered view that the learned 1st appellate Court has not committed any illegality in passing the order dated 20.01.2023 in RFA No.04 of 2014. Accordingly, the order dated 20.01.2023 is hereby affirmed. However, the delay in preferring such application if at all the same will cause prejudice to the Petitioner, the same can be compensated by awarding cost in favour of the Petitioner. Accordingly, while affirming the order dated 20.01.2023 and the conduct of the 1st appellate court in condoning // 5 // the delay, this Court deems it proper to direct the Opposite Parties to pay a cost of Rs.5000/- (Rupees five thousand) which shall be deposited before the Court below to be released in favour of the Petitioner by order of the 1st appellate Court. 10. In view of the aforesaid order, the learned 1st appellate Court is further directed to expedite the hearing of the appeal and try to dispose of the same within a period of four months from the date of production of certified copy of the order. Further, it is open for the Petitioner to raise any ground on merit in course of hearing of the appeal before the appellate court. In the event such grounds are raised, the lower appellate court to avoid unnecessary delay to come to a conclusion of the proceeding, this Court directs that the Parties shall appear before the 1st appellate court on 26.06.2023. Thereafter, it is open for the 1st appellate Court to fix the future date. 11. With the aforesaid observation the CRP stands disposed of. RKS RAMESH KUMAR SINGH Digitally signed by RAMESH KUMAR SINGH Date: 2023.05.10 18:19:42 +05'30' ( A.K. Mohapatra, ) Judge