The High Court
Case Details
Order No. 01. IN THE HIGH COURT OF ORISSA AT CUTTACK CRP No.14 of 2024 Amit Kumar Sahu ..... Petitioner 1) Chinmay Sahu 2) Tanmay Sahu -versus- ..... CORAM: Represented By Adv. - Bibekananda Bhuyan Opposite Parties Represented By Adv. -
Decision
ORDER 02.05.2024 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner. Perused the Revision Petition. 3. Learned counsel for the Petitioner at the outset submitted that the Petitioner as Plaintiff had filed a suit bearing C.S.No.535 of 2015 with a prayer for eviction, mandatory and prohibitory injunction with other consequential relief. He further contended that after filing of the suit, summons were duly served on the defendants and they appeared in the suit through their counsel, but they did not prefer to file Written Statement. However, they were permitted to contest the suit. Thereafter, an ex parte judgment and decree was delivered by the learned Civil Judge (Senior Division) vide judgment dated 24.02.2024 and decree dated 10.03.2022. 4. Learned counsel for the Petitioner further contended that challenging the aforesaid ex parte judgment and decree the Opposite Page 1 of 6. Parties filed an application under Order IX Rule 13 of the Code of Civil Procedure for setting aside the ex parte judgment and decree vide CMA No.10 of 2022 without filing any limitation petition under section 5 of Limitation Act for condonation of delay in filing application under Order IX Rule 13 C.P.C. Subsequently the CMA was dismissed by the learned Civil Judge vide his judgment dated 14.10.2022. 5. The Opposite Parties challenged the aforesaid judgment dated 14.10.2022 by filing FAO No.05 of 2023 before the District Judge, Baripada. The said FAO was contested by the parties and vide order dated 11.05.2023, learned 1st Additional District Judge, Baripada dismissed the said FAO No.05 of 2023 on the ground of limitation. 6. Challenging the aforesaid order dated 11.05.2023, whereby the FAO filed by the Opposite Parties was rejected, the Opposite Parties approached this Court by filing CMP No.804 of 2023. A coordinate Bench of this Court vide judgment dated 14.11.2023 dismissed the said CMP. Learned counsel for the Petitioner in course of his argument, specifically referred to the observation made by the coordinate bench in Paragrph-7, 8, 9, 10 & 11 of the judgment to impress upon this Court that the Opposite Parties are guilty of deliberate laches and negligence on their part. Therefore, the coordinate Bench did not interfere with the order passed by the learned trial Court. 7. So far the present revision application is concerned, the same is against the First Appeal bearing RF No.12 of 2024 filed by the Opposite Parties, which was filed challenging the judgment and decree passed in C.S.No.535 of 2015 on 24.02.2022 and 10.03.2022 respectively. Along with the First Appeal bearing RFA No.12 of Page 2 of 6. 2024, the Opposite Parties have also filed an application for condonation of delay in filing the application. On perusal of the record, it appears that there is 707 days of delay in preferring the RFA before the lower appellate Court. Learned lower appellate court vide order dated 23.03.2024 has been pleased to condone the delay subject to payment of cost of Rs.10,000/- by the Opposite Parties to the present Petitioner. Learned counsel for the Petitioner seeks to assail the aforesaid order dated 23.03.2024 on the ground that the learned lower appellate court, while considering the application under section 5 of Limitation Act for condonation of delay in filing RFA before the lower court, has not taken note of the observation made by the coordinate Bench while disposing of the CMP No.804 of 2023 filed by the Opposite Parties as the Petitioner’s challenging the rejection of their application their application under Order IX Rule 13 C.P.C. He further contended that the Opposite Parties have failed to provide any justifiable reason for condonation of delay, and learned lower appellate court has committed an error in law in condoning such delay. On such ground the order dated 23.03.2024 for condonation of delay in filing the First Appeal before the lower appellate court has been assailed by the present Petitioner. 8. Having heard learned counsel for the Petitioner, on a careful examination of his contentions, as well as on a careful scrutiny of the factual matrix and documents of the present case, along with the materials available on record as well as on a careful examination of the order dated 23.03.2024 passed in RFA No.12 of 2024 under Annexure-4 to the present Civil Revision Petition, this Court observes that the learned lower appellate Court, have considered the application for condonation of delay in filing the RFA under Section Page 3 of 6. 96(2) of the Code of Civil Procedure. It is needless to mention that right to appeal, is a substantive right conferred upon the litigant to challenge the judgment of the lower court in a higher forum. However, the same is subject to limitation as provided in the Limitation Act. Moreover, it is also very clear that Section 5 of Limitation Act confers jurisdiction on the Court to condone the delay in appropriate case where the delay has been explained satisfactorily. So far the present case is concerned, this Court, on a cursory look at the order dated 23.03.2024, is of the view that the lower appellate Court has taken note of the entire factual background of the matter and several judgments have also been referred to while disposing of the application filed by the Opposite Parties for condonation of delay. Further, this Court makes it clear that the application was dismissed by the trial Court and such dismissal of application was upheld by the lower appellate Court as well as by a coordinate Bench in CMP No.804 of 2023. Further, this Court observes that the scope of interference in an application filed under Order IX Rule 13 C.P.C. is limited to the ground specifically provided under Order IX Rule 13 C.P.C. The aforesaid power under Order IX Rule 13 C.P.C. can be exercised only on two exigencies Firstly, where notice has not been made sufficient i.e. parties have not been sufficiently noticed. Secondly, after receiving notice the parties have been prevented by sufficient cause from appearing in Court. It is only on the aforesaid two contingencies, the Court is required to interfere and set aside the ex parte judgment and decree. Moreover, so far the right of appeal under section 96 of the Code of Civil Procedure is concerned, the same is a substantive right conferred upon the litigant to challenge the judgment of the lower Page 4 of 6. court in higher forum. Such right is to be exercised within the Limitation Period. However delay in filing such appeal can be condoned subject to the satisfaction of the Court under section 5 of the Limitation Act. Moreover, exercise of power under section 5 of Limitation Act falls within the discretion of the Court. Finally, this Court in exercise of its revisional jurisdiction is required to adjudge as to whether such power of condonation of delay under section 5 of Limitation Act has been exercised in a judicious manner. On a careful examination of the order passed in the petition for condonation of delay, this Court is of the view that the learned lower appellate Court has not committed any illegality in condoning the delay. Additionally, to compensate the Petitioner for any prejudice which might have been caused due to the delay, a cost of Rs.10,000/- was also awarded to the Petitioner. 9. In the aforesaid factual as well as legal background, this Court is not inclined to interfere with the order dated 23.03.2024 which is sought to be revised in the present Civil Revision Petition. Accordingly, the CRP is dismissed. Additionally, this Court directs the trial Court to make every endeavour to conclude the First Appeal as expeditiously as possible, preferably within a period of four months from the date of communication of certified copy of this order. Further, since the Revision Application has not been entertained, the same is disposed of at the stage of admission without issuing any notice. 8 RKS Page 5 of 6. ( A.K. Mohapatra) Judge Page 6 of 6. Signature Not Verified Digitally Signed Signed by: RAMESH KUMAR SINGH Reason: Authentication Location: High Court of Orissa Date: 06-May-2024 12:45:01