The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Feb-2024 19:23:46 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 1780 OF 2016 Prasad Bisi and another …. Petitioners Mr. Sidharth Prasad Das, Advocate -versus- Sulachana Bewa and others …. Opp. Parties None CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 13.02.2024 5. 1. This matter is taken up through hybrid mode. 2. The Petitioners in this CMP seek to assail the order dated 6th October, 2016 (Annexure-3) passed by learned Additional District Judge, Bhawanipatna in C.M.A. No.3 of 2016 (arising out of F.A.O. No.14 of 2008), whereby an application under Order XLI Rule 19 CPC for readmission of the appeal, has been rejected. 3. Mr. Das, learned counsel for the Petitioners submits that C.S. No.63 of 2005 was filed by the Petitioners for declaration of right, title, interest and for other ancillary as well as consequential relief. The suit was dismissed for non-prosecution vide order dated 13th October, 2006. An application under Order IX Rule 9 CPC was filed in CMA No.40 of 2006, which was also dismissed on 5th May, 2008 on merit. Assailing the said order, the Petitioners filed FAO No.14 of 2008, which was posted to 8th April, 2016 for hearing. On the said date, learned counsel for the Petitioners filed an application for adjournment. Learned appellate Court rejecting the application for Page 1 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Feb-2024 19:23:46 // 2 // adjournment, directed the parties to get ready for hearing. When the matter was again called, none appeared on behalf of the parties and no step was also taken by the Petitioners. Hence, the appeal was dismissed for default vide order dated 8th April, 2016. The Petitioners, thereafter, filed CMA No.3 of 2016 for readmission of the appeal under Order XLI Rule 19 CPC, which was also dismissed on 6th October, 2016. The said order is impugned herein. 4. Mr. Das, learned counsel submits that the Petitioners have a genuine grievance. They are victims of the circumstances. Since Advocate appearing for the Petitioners had personal difficulty on the relevant date, the matter could not be placed on merit. Hence, the Petitioners should be given an opportunity of hearing in the appeal. It is his submission that due to fault of the Advocate, the party should not suffer. Hence, he submits that the impugned order under Annexure-3 may be set aside awarding reasonable cost to compensate the prejudice, if any, caused to the Respondents-Opposite Parties. 5. Office notice indicates that notice on Opposite Party No.1 returned unserved with a postal endorsement “expired the addressee. Hence, returned to sender”. None appears for the Opposite Party Nos.2 to 4 although they are represented through learned counsel. 6. Upon hearing Mr. Das, learned counsel for the Petitioners and on perusal of the record, it appears that the suit was dismissed for default as learned counsel for the Petitioners could not be present at the time of hearing. The application for restoration was also dismissed on merit vide order dated 5th May, Page 2 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Feb-2024 19:23:46 // 3 // 2008. Assailing the same, the Petitioners preferred FAO No.14 of 2008. It appears from the impugned order under Annexure-3 that the Petitioners had taken several adjournments before 8th April, 2016, when the matter was posted as last chance. Learned counsel for the Petitioners filed an application for adjournment of the appeal on the said date stating that he is busy in attending the funeral of his maternal uncle. Since the matter was posted as last chance to 8th April, 2016, learned appellate Court rejected the application for adjournment and directed the parties to come ready for hearing. Latter, when the matter was called, none had appeared for the Petitioners. Hence, the appeal was dismissed for default of the Appellants-Petitioners. An application under Order XLI Rule 19 CPC was filed for readmission of the appeal reiterating the aforesaid grounds. Learned appellate Court holding that adequate opportunity was given to the Appellants to prosecute the appeal and they failed to avail the same, rejected the application vide order under Annexure-3. 7. From the conduct of the Appellants-Petitioners, it appears that they are thoroughly negligent in pursuing the suit as well as the appeal. No doubt, a party should not suffer for the fault of the Advocate. But, it is very easy to blame the Advocate. The party has a duty to be diligent in pursuing his matter in the Court. When the appeal was posted as a last chance on 8th April, 2016, adequate arrangements should have been made so that the appeal could have been heard on that date. In the first hour, learned appellate Court rejected the petition for adjournment and directed the parties to come ready to participate in the hearing. Page 3 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Feb-2024 19:23:46 // 4 // But, subsequently, when the matter was called, none appeared. That shows that the Appellants-Petitioners or their Advocate do not have a semblance of respect for the Court. They have not shown any diligence in pursuing the appeal except taking adjournments. Thus, they should not be shown any leniency in the matter. 8. Mr. Das, learned counsel also submits that the Petitioners should be given a further opportunity to prosecute the appeal. But, this Court is not inclined to grant the relief, as the Petitioners and their Advocate were thoroughly negligent and careless in prosecuting the matter both in the suit and in the appeal. Hence, this Court does not find any infirmity in the impugned order under Annexure-3. 9. Accordingly, the CMP being devoid of any merit stands dismissed. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 4 of 4