The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.188 OF 2017 In the matter of an Appeal under Section 100 of the Code of Civil Procedure, 1908 challenging the order dated 10.04.2017 passed by the learned District Judge, Cuttack in RFA No.73 of 2013. ---- Pravat Nalini Sahoo …. Appellant -versus- Bauri Bandhu Parida & Others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): ============================================== For Appellant -
Legal Reasoning
Mr. Damodar Deo, Advocate. For Respondents - ---------------- CORAM: MR. JUSTICE D. DASH Date of Hearing: 13.02.2024 :: Date of Judgment: 29.02.2024 D. Dash, J. The Appellant, by filing this Appeal under Section- 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), has assailed the order 10.04.2017 passed by the learned District Judge, Cuttack in RFA No.73 of 2013. The Respondent No.1 as the Plaintiff had filed the suit (C.S. No.107 of 2006) for declaration of his title over the suit land and confirmation of possession with further prayer for RSA No. 188 of 2017 Page 1 of 5 {{ 2 }} permanent inunction to restrain the Appellant (Defendant No.3) and other Respondent Nos.2 to 5 arraigned as the Defendants from interfering in the possession of the suit land and for recovery of vacant possession of the suit land with a direction to the Appellant (Defendant No.3) and other Respondent Nos.2 to 5 (Defendants) to remove the thatched house, and fence put up by them. The suit having been decreed by the Trial Court by its judgment dated 30.04.2011 followed by decree dated 18.05.2011; this Appellant (Defendant No.3) being aggrieved, had carried the Appeal under section-96 of the Code to the Court of learned District Judge, Cuttack. The memorandum of appeal having been presented on 01.05.2013, there was a delay of 688 days. So, the Appellant (Defendant No.3) had filed an application under section-5 of the Limitation Act seeking condonation of the said delay. The application has been dismissed by the First Appellate Court and thereby the First Appellate Court has refused to condone the delay in filing the appeal; that order dated 10.04.2017 has been impugned in this Second Appeal. 3. Learned Counsel for the Appellant (Defendant No.3) submitted that although the delay is for 688 days (1 year 10 months and 23 days), as the Appellant (Defendant No.3) which was suffering from Rheumatoid Arthritis for quite a RSA No.188 of 2017 Page 2 of 5 {{ 3 }} long period and during then she was not in a position to move, taking that into consideration, the First Appellate Court ought to have liberally viewed the matter so as to see that the litigation is not put to an end on technicality but is decided on merit. He, therefore, urged for admission of this Appeal to answer the above as the substantial questions of law. 4. Keeping in view the submission as above, I have gone through the impugned order. 5. This Appellant (Defendant No.3) as it appears had not contested the suit before the Trial Court by filing written statement, in asserting her claim over the property in any manner. She had laid no evidence either oral or documentary. The First Appeal thereafter came to be filed by the Appellant (Defendant No.3) alone, when the other Defendant Nos.1, 2, 4 and 5, who too had suffered from the judgment and decree passed by the Trial Court did not move further and those being accepted, the judgment and decree passed by the Trial Court have attained finality in so far as those Respondent Nos.2 to 5 (Defendants) are concerned. 6. The principle of law is well settled that ordinarily the Courts are required to have a liberal approach in the matter of condonation of delay; the idea behind is that the lis is not RSA No.188 of 2017 Page 3 of 5 {{ 4 }} put to an end on technicality but it decided on merit. But the caution remains that if that the delay is for quite a long period, the decree holder thereby has treated the decree as beyond challenge and thus the legal right which has accrued in his favour by lapse of time should not be so light heartedly interfered in the name of rendering the justice. The Court in that event certainly looks for sufficient cause through plausible explanations for condoning the delay. 7. The Frist Appellate Court as it appears has proceeded to examine the matter keeping in view, the above settled position of law in mind. The Appellant (Defendant No.3) had not annexed the Medical Certificate with the petition for condonation of delay. However, one Medical Certificate dated 30.04.2013 and photocopy of another Medical Certificate dated 03.08.2011 were filed on the day to which the case stood posted and, therefore, the matter was heard again on the next day, i.e., 30.03.2017 after hearing and on the date for order on the application of condonation of delay. The facts indicated in the said Medical Certificated have not been stated in the petition. The Medical Certificate carrying certain manipulation as to the years of issuance had been detected by the First Appellate Court in which also nothing is indicated about the treatment provided and no further document to corroborate the same has been field. The First Appellate RSA No.188 of 2017 Page 4 of 5 {{ 5 }} Court has taken a view that even accepting the Medical Certificate, the negligence of the Appellant (Defendant No.3) prior to the date when she claims to be fallen ill is quite apparent and that remains totally unexpected. 8. Taking into account all these aspects, the First Appellate Court having held that the Appellant (Defendant No.3) was not prevented by sufficient cause in filing the First Appeal within the period of limitation that too after such long delay of 688 days (1 year 10 months and 23 days); this Court does not find the same to be in any way erroneous. 9. In the wake of aforesaid, the submission of the learned Senior Counsel for the Appellant (Defendant No.3) cannot be countenanced with. Accordingly, the Appeal does not merit admission as there arises no substantial question of law for being answered. 10. Resultantly, the Appeal stands dismissed. (D. Dash), Judge. Narayan Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 05-Mar-2024 12:19:04 RSA No.188 of 2017 Page 5 of 5