The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.127 of 2022 In the matter of an Appeal under Section 100 of the Code of Civil Procedure, 1908 assailing an order dated 8th April, 2022 passed by the learned Additional District Judge, Khallikote, in C.M.A. No.01 of 2021 arising out of R.F.A. No.1 of 2021. 1. Smt. Kanchana Jena; and 2. Jagadeep Jena ---- -versus- 1. Bikash Biswal; 2. Akash Biswal; and 3. Smt. Surama Biswal …. Appellants …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - M/s.Lalatendu Samantaray, J. Samantaray & S.G. Das (Advocates) For Respondents - M/s.Dayananda Mohapatra, G. Acharya, M.R.Pradhan and J.M. Barik (Advocates)
Legal Reasoning
Appeal, are now before this Court in the Second Appeal. 3. The Appeal has been admitted to answer the following substantial question of law:- “Whether the First Appellate Court is not right in refusing to condone the delay in filing the Appeal after expiry of 2436 days by not viewing the matter liberally to see that the litigation between the parties is decided on merit instead of technicality?” 4. Mr. L. Samantaray, learned counsel for the Appellants (Defendants), reiterating the averments taken in the application under Section 5 of the Limitation Act, submitted that the original Plaintiff, namely, Rama Chandra Biswal @ Rama Chandra Jena became ill after his examination in the suit and he suffered from various diseases. He further submitted that Rama Chandra Biswal, for filing the suit, since had created some forged and fabricated documents to put these Appellants (Defendants) in trouble after he gave evidence in Court in the suit, confessed his guilt before the Appellant No.1 and stated that he would not proceed with the suit anymore. He further submitted that as advised by the Advocate, the Appellant No.1 (Defendant No.1) no more remained serious. When the matter stood thus, the sons RSA No.127 of 2022 Page 3 of 6 of original Plaintiff Rama Chandra Biswal, Respondent no.1(a) and 1(b) created trouble for the Appellants (Defendants) and thereafter the Appellants (Defendants) received notice from the Court of Additional Civil Judge, Junior Division, Khallikote and then they were astonished to know about the result of the suit which came to be known in detail after obtaining the certified copy of the judgment and decree on 07.12.2020. He, therefore, submitted that the delay, though is for quite substantial period, it is neither deliberate nor intentional and it was because of unavoidable circumstances coming to stand on the way of filing the Appeal in time and that to after 6 years 8 months 6 days. He submitted that even though the delay is long, yet in the interest of justice and to meet its end in order to see that the litigation is decided on merit instead of technicalities, the First Appellate Court ought to have liberally viewed the matter and condoned the delay. 5. Mr. D. Mohapatra, learned counsel for the Respondents submitted that the First Appellate Court has rightly rejected the application under Section 5 of the Limitation Act by holding the explanations given for the delay of 6 years 8 months 6 days as unacceptable. He submitted that the Appellants have simply created the story out of imagination and such versions per se appear to be false. RSA No.127 of 2022 Page 4 of 6 6. Keeping in view the submissions made, I have carefully read the order impugned in this Appeal. It reveals from record that the Appellant had contested the suit by filing written statement. From the side of the Appellants (Defendants) not only that the Appellant No.1 (Defendant No.1) has given evidence on oath but also several documents have been proved and marked exhibits. 7. The suit stood decided on contest. When that is the situation, the story projected that the original plaintiff Rama Chandra after having giving evidence when felt ill had disclosed before the village gentries as also before the Appellant No. 1 (Defendant No.1) that his claim in the suit styling the surname as Biswal and son of Jayakrushna Biswal was false and he would not proceed with the suit anymore appears as totally false having no basis to stand on. Further explanation is that as per the advice of the Advocate, the Appellant No.1 (Defendant No.1) deposed and later on her eldest son assured to decline from the suit, meaning of which is understood and it makes no sense at all. 8. True it is that the Court takes liberal approach in the matter of condonation of delay in order to see that the litigant does not stand to benefit by causing the delay and, therefore, ideally it should be the endeavor that the litigations should be decided on merit then it being shown the door of exist banking upon the Page 5 of 6 RSA No.127 of 2022 technicalities. However, the caution remains that when for any such long delay, a valuable right has accrued in favour of the advisory, the same is not liable to be lightly taken by adopting a liberal approach and thereby shutting the eyes to the reality that a party who has own the litigation after fighting it out for quite some period is made to suffer for no such cause/fault attributable to him but for the condonation of the gross negligence of the adversary. The explanations provided by the Appellants as noted in the foregoing paras in support of the sufficient cause to have prevented them from filing the Appeal for such long period of 2436 days (6 years 8 months 6 days) are not at all found to be plausible and, therefore, this Court returns the answer to the substantial question of law in recording that the First Appellate Court is wholly right in refusing to condone the delay of 6 years 8 months and 6 days in filing the Appeal. 9. Accordingly, the Appeal stands dismissed. There shall be no order as to cost. (D. Dash), Judge Basu/Monalisa Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASST. REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 22-Apr-2024 11:28:58 RSA No.127 of 2022 Page 6 of 6
Arguments
CORAM: MR. JUSTICE D.DASH Date of Hearing : 10.04.2024 : Date of Judgment: 15.04.2024 D.Dash,J. The Appellants, by filing this Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), have assailed an order dated 8th April, 2022 passed by the learned RSA No.127 of 2022 Page 1 of 6 Additional District Judge, Khallikote, in C.M.A. No.01 of 2021 arising out of R.F.A. No.1 of 2021. The predecessor-in-interest of Respondent Nos.1(a) to 1(c), namely, Rama Chandra Biswal had filed Civil Suit No.22 of 2012 in the Court of learned Civil Judge, Senior Division, Khallikote for declaration of his right, title, interest and possession over the suit property along with the Appellant No.1 (Defendant No.1) with further declaration that the Registered sale deed No.1188/2011 executed by Appellant No.1 (Defendant No. 1) in favour of Appellant No.2 (Defendant No.2) in respect of Scheduled-A property as null and void and also for issuance of permanent injunction against Defendant No.1 restraining him from alienating the property in Scheduled-B. The Suit stood decreed in part by judgment dated 19th March, 2014. The Appellants (Defendants) did not file the Appeal under Section 96 of the Code in challenging the aforesaid judgment and decree passed by the trial Court within the period of limitation as prescribed. 2. The Memorandum of Appeal, being presented after lapse of 2436 days (6 years 8 months and 6 days), these Appellants, being the aggrieved Defendants, prayed for condonation of the delay by filing an application under Section 5 of the Limitation Act. RSA No.127 of 2022 Page 2 of 6 The First Appellate Court since has rejected the said application and refused to condone the delay, the Appellants (Defendants), having suffered from that order passed in the