The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.270 of 2023 & I.A.No.649 of 2023 In the matter of an Appeal under Section 100 of the Code of Civil Procedure, 1908 assailing the judgment and decree dated 9th March, 2016 & 30th March, 2016 respectively passed by the learned 2nd Additional District Judge, Khurda confirming the judgment and decree dated 3rd May, 2010 & 14th May, 2010 passed by the learned Civil Judge (Senior Division), Khurda, in MAT Case No.59 of 2007 Basanta Kumar Moharathi ---- Smita Moharathi -versus- …. …. Appellant Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant -
Legal Reasoning
Mr. Arun Ku. Mishra-2 and P. Parija (Advocates) For Respondent - M/s.Rohit Ranjan Ray, P.K. Samal, S. Behera, N.K. Sen (Advocates) CORAM: MR. JUSTICE D.DASH Date of Hearing : 05.04.2024 : Date of Judgment: 15.04.2024 D.Dash,J. The Appellant, by filing this Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), has assailed the judgment and decree dated 9th March, 2016 & 30th RSA No.270 of 2023 Page 1 of 5 March, 2016 respectively passed by the learned 2nd Additional District Judge, Khurda. The Appellant, as the Petitioner, had filed an application under section 13 of the Hindu Marriage Act, 1955 in the Court of the learned Civil Judge (Senior Division), Khurda standing numbered as Mat. Case No.59 of 2007 for divorce and dissolution of his marriage with the Respondent (Opposite Party). That application was dismissed by judgment dated 3rd May, 2010 followed by drawal of the decree on 14th May, 2010. This Appellant, being aggrieved by the said judgment and decree passed by the Trial Court, had carried an Appeal under section 28 of the Hindu Marriage Act, 1955 read with section 96 of the Code. Said Appeal was dismissed by order dated 9th March, 2016 followed by drawal of the decree on 30th March, 2016. 2. Challenging the above judgment and decree passed by the First Appellate Court, the Memorandum of Appeal has been presented before this Court on 30.06.2023. Thus, there being delay of 2569 days (7 years and 15 days), the Appellant has filed an application under section 5 of the Limitation Act for condonation of the same. 3. Mr.A.K.Mishra-2, learned counsel for the Appellant submitted that the Appellant, after disposal of the First Appeal, having obtained the certified copies of the judgments and decrees RSA No.270 of 2023 Page 2 of 5 and other relevant documents, had entrusted the matter to one lawyer at Cuttack for filing the Second Appeal and said lawyer had assured him to file the Second Appeal within time. But thereafter, during the visit of the Appellant to Cuttack, the lawyer started avoiding and said that the matter would be listed for hearing. He further submitted subsequently said lawyer entrusted to file the Second Appeal died during the first wave of Covid Pandemic in the year 2019 and, therefore, this long delay had occasioned that it is only when the Appellant only came to know about the non-filing sometime in February, 2023, he filed the Appeal. He thus, submitted that the delay is not intentional or deliberate and was because of the unavoidable circumstances and the reason/cause for the delay is not attributable to the Appellant. He, therefore, urged for condonation of delay. 4. Mr.R.R. Ray, learned counsel for the Respondent first of all submitted that story presented by the Appellant is not at all believable. He submitted that even if it is accepted that the said lawyer met his death in the year 2019 by then, there has been already a delay of three years, which remains wholly unexplained. He further submitted that the Respondent is now residing with her daughter and she, having obtained an order of maintenance to be paid by the Appellant that being also not paid and the Defendant is prosecuting the execution proceeding. So, he submitted that when the Appellant is facing the execution RSA No.270 of 2023 Page 3 of 5 proceeding for him to remain silent at least from the year 2016 to 2019 after having entrusted the matter to the lawyer is per se not acceptable. According to him, this long delay with such vague explanations is not to be condoned. 5. Keeping in view the submissions made, I have carefully gone through the averments taken in the application under section 5 of the Limitation Act. 6. On a bare reading of the narrations made in the concerned application, which have been reiterated by the learned counsel for the Appellant, the story presented by the Appeal appears to be a cooked-up one and that after such long lapse of time appears to be simply for projecting a case for condonation of delay. The delay in the present case is for 2569 days (7 years and 14 days). Even if it is accepted that the concerned lawyer died in the year 2019, the conduct of the Appellant in not ascertaining the factum of delay about the institution of the Appeal, which were then available to be ascertained even by sitting at home in view of the technology in place is per se not available. This Court is thus of the view that the explanations given for such long delay of 2569 days (7 years and 14 days) are not at all plausible and the Appellant cannot be said to have been prevented by sufficient cause for all these period of 2569 days (7 years and 14 days) in filing the present Second Appeal. RSA No.270 of 2023 Page 4 of 5 In that view of the matter, this Court is of the considered view that it is not a fit case for condonation of delay. 7. Accordingly, the application (I.A. No.649 of 2023) under section 5 of the Limitation Act stands rejected. Consequent upon
Decision
the same, the RSA stands dismissed. No order as to costs. (D. Dash), Judge Basu 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 11:28:59 RSA No.270 of 2023 Page 5 of 5