The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.524 of 2016 In the matter of an Appeal under Section 100 of the Code of Civil Procedure assailing order dated 11.11.2016 passed by the learned District Judge, Balasore in R.F.A. No.63 of 2015. ---- Hemalata Behera & Others …. Appellants -versus- Smt. Jemamani Behera & Others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Mrs.Sumitra Mohanty (Advocates)
Legal Reasoning
For Respondents - Mr.M K. Khuntia (Advocate for R.1, 3 & 4) Mr.S.K.Nanda (Advocate for R.2) CORAM: MR. JUSTICE D.DASH Date of hearing:27.01.2023 : Date of Judgment:15.02.2023 D.Dash,J. The Appellants, by filing this Appeal under Section 100 of Code of Civil Procedure, 1908 (for short, ‘the Code’), have assailed an order dated 11.11.2016 passed by the learned District Judge, Balasore in R.F.A. No.63 of 2015. By the same, the First Appellate Court has rejected the application filed by the present Appellantsunder section 5 read with section 14 of the Limitation Act to condone the delay in presenting the Memorandum of First Appeal questioning the judgment and decree passed by the R.S.A. No.524 of 2016 Page 1 of 6 {{ 2 }} learned Civil Judge, Junior Division, Balasore in Title Suit No.511 of 1994-I as the unsuccessful Plaintiffs wherein their suit had been dismissed and the Counter-Claim filed by the Defendants had been preliminarily decreed. 2. Facts necessary for disposal of this Appeal are as under:- One Purusottam Behera, the predecessor-in-interest of these Appellants had filed the suit before the Trial Court seeking a decree for declaration of his right, title and interest over the land described in Schedule-Ka of the plaint with further relief of permanent injunction to restrain one Surendra Behera, who had been arraigned as the Defendant therein from Schedule-Kha land. Said Surendra Behera in that suit, being the sole Defendant, having entered appearance, while contesting the suit, had also advanced a counter claim for partition of the suit land allotting half share to him. During pendency of the suit, Purusottam, the sole Plaintiff, having died, these Appellants as his legal representatives, getting themselves substituted therein, pursued the suit. Similarly, as the sole Defendant, namely, Surendra Behera, died during the suit, these Respondents, as his legal representatives, came on record and they contested the suit as well as pursued the counter-claim. The Trial Court, by its judgment dated 18.10.2012, dismissed the suit and preliminarily decreed the counter claim allotting half share over the suit property in favour of all these Appellants (Plaintiffs) and the rest half in favour of the Defendants. Pursuant to the same, the preliminary decree was then drawn. These Appellants, being the Plaintiffs, long thereafter presented the Memorandum of Appeal under section 96 of the R.S.A. No.524 of 2016 Page 2 of 6 {{ 3 }} Code in assailing the judgment and preliminary decree passed by the Trial Court. There has been a delay of 2 years and 7 months in presenting the Memorandum of Appeal. They, therefore, filed an application under section 5 read with section 14 of the Limitation Act, which having been dismissed, now that order has been assailed here in this Second Appeal. 3. The Appeal has been admitted to answer the following substantial question of law:- “Whether the First Appellate Court is right in refusing to condone the delay of two years and seven months in presenting the Memorandum of Appeal by these Appellants being the unsuccessful Plaintiffs in Title Suit No.511 of 1994, in taking a view that they were not prevented by sufficient cause to prefer the Appeal challenging the dismissal of the suit within the period prescribed”. 4. Learned counsel for the Appellants submitted that after the dismissal of the suit and passing of the preliminary decree in the counter claim, when a prayer was made before the Trial Court by the Respondents (Defendants) to make the preliminary decree, final these Appellants (Plaintiffs) received the notice therein to have their say in the matter. Then they consulted a counsel of this Court, who advised them to file the First Appeal against the judgment and preliminary decree passed by the Trial Court. He submitted that such inaction of the Appellants (Plaintiffs) in not filing the First appeal challenging the judgment and preliminary decree passed by the Trial Court within the time and thereafter was on account of wrong advice of the previous counsel engaged by the Appellants (Plaintiffs) and, therefore, the First Appellate Court should have taken a liberal view in the matter in R.S.A. No.524 of 2016 Page 3 of 6 {{ 4 }} proceeding to dispose of the First Appeal on merit, rather than shutting the doors of justice by adhering to the technicalities. 5. Learned counsel for the Respondents, while supporting the order passed by the First Appellate Court, submitted that Appellant No.3 (Plaintiff No.3) was the person, who was looking after the litigation on behalf of the Plaintiffs and he had given evidence on their behalf. He further submitted that said Appellant No.3, who was looking after the case is a qualified person and is serving in the Health Department in Balasore. They further submitted that these Appellants (Plaintiffs) having received the notice in the final decree proceeding, have entered appearance and thereafter, have also filed their objection to that prayer to make the preliminary decree final. But later on, they have moved in filing the First Appeal. According to them, the move is only to harass and mount pressure upon them to surrender to the demand of the Appellants (Plaintiffs). They submitted that the facts and circumstances narrated in the petition filed by the Appellants (Plaintiffs) seeking the condonation of delay do not show that the Appellants (Plaintiffs) were prevented by sufficient cause in filing the Appeal within the time prescribed and that too after a delay of 2 years and 7 months and that cannot be justified, merely saying that it was on account of wrong legal advice by their counsel. 6. Keeping in view the submissions made, I have carefully read the impugned order passed by the First Appellate Court. 7. Admittedly, these Appellants (Plaintiffs) have pursued the suit before the Trial Court and contested the counter claim till its end. From their side, not only that Appellant No.3 (Plaintiff No.3) has examined R.S.A. No.524 of 2016 Page 4 of 6 {{ 5 }} himself but also several documents have been proved. The suit stood dismissed and the counter claim stood preliminarily decreed by judgment dated 18.10.2012. The First Appeal has been filed presented after a delay of 2 years and 7 months when the fact remains that in the meantime, in the final decree proceeding, these Appellants (Plaintiffs) have appeared and filed their objection. Although, it has been averred in the Application that due to wrong advice of the previous counsel, the Appellants (Plaintiffs) were unable to prefer the Appeal within the time, it has not been stated as to what advice was then given by their previous counsel, which gave them the solace in not preferring the Appeal even though they were aggrieved by the result if the suit and counter claim and as to what was told that in which way their grievance would be redressed in future. When the suit filed by these Appellants (Plaintiffs) stood dismissed and the Counter- Claim had been preliminarily decreed to their sufferance; to say that for wrong legal advice, they did not file the Appeal is not at all acceptable. It rather appears that having lost the suit and suffered from the Counter- Claim, they had thought it no more futile to challenge and the move after two and half years thus clearly appears to be with an ulterior motive to give fresh life to the litigation attaining finality. It is also not stated as to on which day when they appeared in the final decree proceeding and filed their objection. The judgment, having been passed by the Trial Court on 18.10.2012, the First Appeal is found to have been filed on 18.03.2015. 8. Its no doubt true that in such matter of condonation of delay, the Courts are required to take liberal view to see that the litigation is grappled on merit than on technicality; yet the caution always remains R.S.A. No.524 of 2016 Page 5 of 6 {{ 6 }} that when the delay is for a considerable period, the Court should not shut its eyes to the fact that in the name of deciding the lis on merit, the valuable right accrued in favour of the adversary is not so lightly curtailed. The facts and circumstances as indicated hereinbefore do not justify to view the matter so liberally to condone the delay of 2 years and 7 months in presenting the Memorandum of First Appeal. 9. For the aforesaid, this Court is of the view that the explanation provided by the Appellants (Plaintiffs) for such long delay in presenting the Memorandum of the First Appeal is not at all plausible so as to say that the Appellants (Plaintiffs) were prevented by sufficient cause for not filing this Appeal in time and that too after delay of 2 years and 7 months. 10.
Decision
In the result, the Second Appeal stands rejected. (D. Dash), Judge. Basu R.S.A. No.524 of 2016 Page 6 of 6