The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMAPL No.290 of 2023 Jagdish Chandra Shah …. Petitioner Mr. D.P. Mohanty, Advocate -versus- State of Odisha and others. …. Opp. Parties Mr. Sanjay Rath, A.S.C. Order No. CORAM: JUSTICE A.K. MOHAPATRA
Decision
ORDER 23.11.2023 I.A. No.118 of 2023 02. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. This interlocutory application has been filed by the Petitioner seeking condonation of delay in filing the restoration application. 3. Heard the learned counsel for the Petitioner as well as the learned Additional Standing Counsel appearing for the State- Opposite Parties. 4. Learned counsel for the Petitioner, at the outset, submitted that the writ application, i.e., O.J.C. No.2863 of 1996 was dismissed due to non-prosecution vide order dated 30.08.2016. Learned counsel for the Petitioner further contended that the writ petition was filed in the year 1996 by one Jamuna Das // 2 // Shah, as the sole Petitioner. During the pendency of the writ petition before this Court, the above named original sole Petitioner, namely, Jamuna Das Shah died in the year 2004. However, such fact was not intimated to the counsel appearing on behalf of the Petitioner. He further contended that the legal heirs of above noted original Petitioner were also not aware of the pendency of the above named writ petition. Finally, the writ petition was taken up on 30.08.2016 and the same has been dismissed due to non-prosecution. In the said context, learned counsel for the Petitioner submitted that the counsel who was appearing earlier for the Petitioner had some personal problem as one of his relative died in village and he had to attend the funeral. Hence, the earlier counsel for the Petitioner could not appear before this Court, as a result of which, the writ application has been dismissed for default for a single day default before this Court. Learned counsel for the Petitioner also contended that the aforesaid fact of dismissal of the writ petition for default was neither within the knowledge of the earlier counsel who was conducting the case nor within the knowledge of the legal heirs of the original deceased Petitioner. He further contended that the order dated 30.08.2016 dismissing the writ application is against admittedly a dead person, which is nullity in the eye of law. It was also contended by the learned counsel for the Petitioner that the legal heir of the original Petitioner, namely, Jamuna Das Shah eventually came to know about the aforesaid litigation and the consequently order of dismissal dated 30.08.2016. Accordingly, they were advised by their // 3 // lawyer to immediately move the High Court for restoration of the application. Mr. Mohnaty, learned counsel appearing for the Petitioner has filed this CMAPL for restoration of the writ application, which was dismissed for default. 5. In the factual background, Mr. Mohanty, learned counsel appearing for the Petitioner submitted that though there is a delay almost of 7 years, however, this application has been filed by the legal heir of the deceased original Petitioner immediately came to know about the fact that the writ petition filed by his father due to dismissed for non-prosecution. In such view of the matter, he also urged before this Court that considering the case involved in the present writ petition and the property involved, which is a subject matter of dispute is only the residential property of the Petitioner, this Court by taking a lenient view in the matter, be condoned the delay and permitted the Petitioner to contest the litigation in the larger interest of justice. 6. Learned Additional Standing Counsel, on the other hand, opposed the condonation of delay. He further contended that there is a delay of about 7 years which has not been explained properly in the limitation application. Learned Additional Standing Counsel further submitted that from the conduct of the present Petitioner, it appears that he was not interested in the litigation, however suddenly he has filed this application 7 years after dismissal of the writ application due to non-prosecution. Considering the long, inordinate and unexplained delay, it was submitted by the learned Additional Standing Counsel that the // 4 // delay in filing the CMAPL should not be condoned. Accordingly, the CMAPL be dismissed. 7. Having heard the learned counsels appearing for the respective parties and on careful consideration of their submission as well as on scrutiny of the background facts and the materials on record, this Court is of the considered view that the aforesaid writ petition was dismissed by passing an order against a dead person. The original writ petitioner, namely, Jamuna Das Shah being the sole Petitioner in the present writ petition and by the time the order was passed he was dead since 2004, therefore, the order passed by the coordinate Bench in ignorance of the aforesaid fact is the nullity in the eye of law. However, considering the factual background of the present case and keeping in view the interest of the present Petitioner, who is the legal heir of the above noted original present Petitioner, this Court in the interest of justice deems it proper to condone the delay subject to payment of cost. Accordingly, keeping in view the long delay, the Petitioner is directed to pay a cost of Rs.2,500/- to the Advocates’ Welfare Fund of the Orissa High Court Bar Association within a week hence. 8. Accordingly, the I.A. is allowed. CMAPL No.290 of 2023 9. Heard the learned counsel for the Petitioner as well as learned Additional Standing Counsel appearing for the State. 10. Considering the submissions made by the learned counsels appearing for the respective parties and for the reasons which // 5 // have been elaborately discussed in the application for condonation of delay, this Court deems it proper to allow the CMAPL application. 11. Accordingly, the CMAPL is allowed. 12. Accordingly, the O.J.C. No.2863 of 1996, which has been dismissed vide order dated 30.08.2016, is restored to file. 13. Further, registry is directed to place the substitution application as well as writ petition before the appropriate Bench for passing necessary order. 14. With the aforesaid observation and direction, the CMAPL stands disposed of. Debasis ( A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Designation: Secretary Reason: Authentication Location: OHC, CUTTACK. Date: 29-Nov-2023 19:07:40