Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK CMAPL No.67 of 2024 An application under Order 41, Rule 19 of the CPC read with Chapter-VIII Rule 30 of Orissa High Court Rules, 1948. *** Purnendu Panigrahi & Others … Petitioners. -VERSUS- Smt. Debmani Atha (dead) & Another … Opposite Parties. Counsel appeared for the parties: For the Petitioners : Mr. D. Mohapatra, Sr. Advocate. Assisted by Mr. P.K. Singhdeo, Adv. For the Opposite Parties : Mr. U.C. Patnaik, Advocate P R E S E N T: HONOURABLE MR. JUSTICE ANANDA CHANDRA BEHERA Date of Hearing: 21.01.2025 CMAPL No.67 of 2024 :: Date of Judgment : 10.03.2025 Page 1 of 10 ANANDA CHANDRA BEHERA, J.— J UDGMENT 1. This CMAPL has been filed by the petitioners (those were the appellants in the Regular Second Appeal vide R.S.A. No.41 of 2011) against the Opposite Parties (those were the respondents in the Regular Second Appeal vide R.S.A. No.41 of 2011) praying for readmission of the R.S.A. No.41 of 2011 after setting aside its dismissal order passed on dated 05.10.2023. 2. According to the petitioners, they (petitioners along with Bimelndu Panigrahi) were the appellants in the R.S.A. No.41 of 2011 and the said Bimelndu Panigrahi was the appellant No.3 in that R.S.A. He (appellant No.3 Bimelndu Panigrahi) was looking after that R.S.A. on behalf of other appellants. He (appellant No.3- Bimelndu Panigrahi) expired on 16.06.2021 and unfortunately,
Legal Reasoning
their engaged learned Sr. Counsel Mr. J.M. Mohanty in R.S.A. No.41 of 2011 also expired. The matter relating to the death of their engaged learned Sr. Counsel was not known to the petitioners. When on dated 05.10.2023, the R.S.A. No.41 of 2011 of the petitioners was fixed CMAPL No.67 of 2024 Page 2 of 10 for hearing, but, due to the death of the appellant No.3 (who was looking after that appeal) and also due to the death of their engaged learned Sr. Counsel Mr. J.M. Mohanty, none of the appellants of R.S.A. No.41 of 2011 including the counsel for the petitioners/appellants could not remain present in the court on that date i.e. on 05.10.2023, for which, R.S.A. No.41 of 2011 of the petitioners was dismissed for their default. 3. The above default of the petitioners (appellants in that R.S.A. No.41 of 2011) was neither deliberate nor intentional, but on account of the above unfortunate incidents as stated above, they (petitioners) could not remain present in the Court on that day i.e. on 05.10.2023 and the aforesaid dismissal order of the R.S.A. No.41 of 2011 on dated 05.10.2023 was also not known to the petitioners. They (petitioners) came to know about the same for the first time on dated 06.03.2024 from the staffs in the office of their engaged deceased learned Sr. Counsel J.M.Mohanty. So, the petitioners filed this CMAPL praying for setting aside the dismissal Order dated 05.10.2023 passed in R.S.A. No.41 of 2011 and to restore the same to its original position as it was on dated 05.10.2023 prior to its dismissal and to fix that Second CMAPL No.67 of 2024 Page 3 of 10 Appeal for its hearing on merit or else, they (petitioners) shall be prejudiced seriously and shall also sustain irreparable loss. Because, they (petitioners) have vital interest in the disputed properties involved in the R.S.A. No.41 of 2011 and they (petitioners) have also every chance of success in that R.S.A. No.41 of 2011 after its hearing on merit. 4. Having been noticed from the Court, the Opposite Parties (respondents in R.S.A. No.41 of 2011 ) filed their objection denying the averments made by the petitioners in the CMAPL stating that, the petitioners have not described in detail in their petition, from which particular staff in the office of their learned Sr. Counsel, they (petitioners) came to know about the dismissal of the R.S.A. No.41 of 2011 and the petitioners have filed this CMAPL unnecessarily only in order to protract the litigation and to debar the Opp. Parties from getting the fruits of the decree passed in their favour. It was the duty of the petitioners to keep track over their appeal, but not to leave the same upon the mercy of their engaged counsel and it was also the duty of the petitioners to remain in touch with their engaged counsels during the pendency of the appeal. The present CMAPL of the CMAPL No.67 of 2024 Page 4 of 10 petitioners has not fulfilled the criterias indicated in Order 41 Rule, Rule 19 of the CPC, 1908 for readmission of the R.S.A. Because, the petitioners have not given sufficient cause and reason for their non-appearance and the circumstance, which prevented them from coming to the Court on dated 05.10.2023. For which, the CMAPL filed by the petitioners is liable to be dismissed. 5. It appears from the records of R.S.A. No.41 of 2011 that, R.S.A. No.41 of 2011 was filed by the petitioners as appellants on dated 02.02.2011 and the same was admitted on dated 24.04.2012. Since 24.04.2012 till 14.09.2023, the said R.S.A. was not listed. 6. On the date of listing of R.S.A. No.41 of 2011 on 05.10.2023, none appeared from the side of the appellants. For which, the R.S.A. was dismissed for the default of the appellants/petitioners. The order sheets in R.S.A. No.41 of 2011 show that, there was delay of more than 10 years in listing the R.S.A. No.41 of 2011 since 24.04.2012. After ten years, the same was listed. CMAPL No.67 of 2024 Page 5 of 10 7. On this aspect, the propositions of law has already been clarified by the Apex Court in the ratio of the following decision: I. In a case between Perumon Bhagvathy Devaswom Perinadu Village Vs. Bhargaviamma (dead) by LRs & Others reported in (2008) 8 SCC 321 “Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal.” (Para No.8) 8. In view of the above principles of law enunciated by the Apex Court, when 10 years after admission of the R.S.A. No.41 of 2011, the same was listed, then, in view of the principles of law enunciated by the Apex Court in the ratio of the aforesaid decision, it is natural and obvious for the appellants to expect for a call or information from their counsel about the next date of listing of their appeal. In this matter at hand, unfortunately, the engaged learned Sr. Counsel of the appellants had expired before listing of the R.S.A. No.41 of 2011 on 05.10.2023 after its admission. For which, non-getting of information about the further courses of CMAPL No.67 of 2024 Page 6 of 10 action of the appeal on account of death of their Sr. Counsel cannot be considered as a deliberate and willful fault/defect of the appellants to prosecute their appeal. 9. It appears from the CMAPL filed by the petitioners that, the petitioners are eagerly interested to contest the R.S.A No.41 of 2011 on merit after setting aside of the dismissal order passed in the appeal in order to establish their civil rights over the suit properties. On this aspect the propositions of law has already been clarified by the Hon’ble Courts and Apex Court in the ratio of the following decisions. I. In a case between Sumtibai & others vs. Paras Finance Co. Mankanwar W/o Parasmal Chordia (D)& Ors. (Para No.8) reported in AIR 2007 (SC) 3166 “The object of Civil Procedure Code is really the rules of natural justice. Its purpose is to enable both parties to get a hearing.” II. In a case between Rajendra Kumar Vs. Smt. Managala Devi reported in 2024 (3) Civ.C.C. 378 (Raj.) that, “Dismissal of suit for non-prosecution would lead to curtail civil rights of a litigant forever. For which, the suit restored subject to payment of cost.” III. In a case between Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy & Others reported in (2013) 12 SCC 649 CMAPL No.67 of 2024 Page 7 of 10 “Substantial justice being paramount and pivotal, the technical considerations should not be given undue and uncalled for emphasis.” (Para No.8) IV. In a case between Rakesh Kumar Jain Vs. Zulfkar Ali reported in Civ.L.J. 384 (Allh.) “Rules of limitation are not meant to destroy the rights of parties. Substantive rights of the parties are not to be defeated only on the ground of delay.” 10. When after admission of the R.S.A. No.41 of 2011 filed by the petitioners on dated 24.04.2012, the said appeal was not listed for more than 10 years and when that R.S.A. of the petitioners was dismissed for their non-appearance due to non- getting of information from their engaged learned Sr. Counsel prior to its listing on account of death of their learned Senior Counsel and when the petitioners are eagerly interested to establish their civil rights in R.S.A. No.41 of 2011 after its restoration and to get opportunity of being heard on merit and when the dismissal order passed in R.S.A. No.41 of 2011 has led to curtail their civil rights forever and when it is the duty of the Court to enable both the parties to get hearing of the appeal on merit, then, at this juncture, by applying the above principles of law enunciated in the ratio of the aforesaid decisions of the Hon’ble Courts and Apex Court to this CMAPL at hand, it is held CMAPL No.67 of 2024 Page 8 of 10 that, the ends of justice shall bestly be served if the dismissal order dated 05.10.2023 passed in R.S.A. No.41 of 2011 shall be set aside subject to payment of cost by the petitioners to the Opposite Parties compensating the losses of the Opposite Parties for the delay in hearing of the R.S.A. No.41 of 2011 for the above reasons. 11. Hence ordered.
Decision
O R D E R 12. The CMAPL under Order 41, Rule 19 of the CPC, 1908 filed by the petitioners against the Opposite Parties is allowed on contest. 13. The dismissal Order dated 05.10.2023 passed in R.S.A. No.41 of 2011 is set aside subject to payment of cost of Rs.10,000/- (rupees ten thousand) by the petitioners to the Opposite Parties/respondents through their learned Counsel within a period of two weeks from the date of passing of this Order. 14. It is made clear here that, only after submission of an acknowledgment receipt regarding the payment of the above cost by the petitioners to the Opposite Parties within the stipulated CMAPL No.67 of 2024 Page 9 of 10 period as indicated above, necessary orders shall be passed in the R.S.A. No.41 of 20211 for its further progress as per law. 15. Accordingly, the CMAPL is disposed of finally. (ANANDA CHANDRA BEHERA) JUDGE High Court of Orissa, Cuttack The 10 .03. 2025// Rati Ranjan Nayak, Sr. Stenographer. Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India. Date: 12-Mar-2025 19:26:09 CMAPL No.67 of 2024 Page 10 of 10