The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.196 of 2022 In the matter of an Appeal under Section-100 of the Code of Civil Procedure, 1908 assailing the order dated 17.05.2022 passed by the learned District Judge, Cuttack in RFA No.39 of 2021. ---- Sankara Behera & Others ::: Appellants -versus- Niladri Rout & Others ::: Respondents Appeared in this case by Hybrid Arrangement (virtual/physical mode) ============================================== For Appellants - M/s. Saswata Pattnaik & A.K. Panda (Advocates), For Respondents - M/s. G. Mukherji, Sr. Advocate S.D. Ray, A. Mishra, S. Acharya, K. Banarjee, K.K. Mohapatra & R.D. Dash (Advocates for R.1 & R.2) M/s. B.Ch. Panda, S, Mishra, J.N. Panda, B. Behera and R.R. Sahoo, Advocates(R.3 to 8)
Legal Reasoning
CORAM: MR. JUSTICE D.DASH DATE OF HEARING:: 29.11.2023 ::: DATE OF JUDGMENT: 04.12.2023 The Appellants, by filing this Appeal, under Section-100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) have assailed an order passed by the learned District Judge, Cuttack in RFA No.39 of 2021. By the same, the First Appellate Court has refused to condone the delay of 1897 days in filing this Appeal by these Appellants under Page 1 of 5 // 2 // section 96 of the Code in assailing the judgment and decree passed by the learned 3rd Additional Civil Judge (Sr. Division), Cuttack in Civil Suit No.768 of 2013. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit. 3. The Respondent Nos.1 and 2 as the Plaintiffs had filed the suit for mandatory injunction and in the alternative for eviction of the Appellants and Respondent Nos.3 to 8, who was the Defendants in the Courts below. The suit having been decreed by the Trial Court by passing the judgment on 20.08.2016 followed by drawal of decree on 25.08.2016, these Appellants being the aggrieved Defendant Nos.1,8 and 9 filed the First Appeal challenging those judgment and decrees passed by the Trial Court after delay of 1897 days. Along with the Memorandum of Appeal, they had filed an application under section 5 of the Limitation Act to condone the delay for the above period in filing the First Appeal. The First Appellate Court rejected the same holding that there was no sufficient cause which has prevented those Appellants (Defendant Nos.1,8 and 9) from filing the Appeal for all these long period. 4. The Appeal has been admitted to answer the following substantial question of law:- Page 2 of 5 // 3 // “Whether the First Appellate Court is right in refusing to condone the delay in filing the First Appeal under section 96 of the Code of Civil Procedure in challenging the judgment and decree passed by the learned 3rd Additional Civil Judge (Sr. Division), Cuttack in Civil Suit No.768 of 2013 holding that these Appellants (Defendant Nos.1, 8 and 9) were not prevented by sufficient cause in filing the Appeal after lapse of 1897 days?” 5. Learned counsel for the Appellants submitted that these Appellants (Defendant Nos.1, 8 and 9) had neither appeared in the said suit after receiving the summon nor they had knowledge about the further progress of the suit as Defendant No.3 was looking after the said suit on their behalf. He then submitted that these Appellants (Defendants) had not filed any written statement and it is only when they came to know about initiation of the execution proceeding, they made inquiry and having come to know about the result of the suit filed the Appeal. It was submitted that these Appellants have been totally kept at dark and the decision of the suit being not within the knowledge as to have gone against them and thereby these Defendants suffered from the decree passed therein, the First Appellate Court ought to have liberally viewed the matter instead of taking a strict view. Page 3 of 5 // 4 // 6. Learned counsel for the Respondent Nos.1 and 2 submitted all in favour of the order passed by the First Appellate Court refusing to condone the delay. He submitted that when being alleged that these Appellants (Defendant Nos.1,8 and 9) were not summoned in the suit, when they had neither appeared through their counsel and they having taken no interest thereof, the First Appellate Court is right in saying that the explanations offered for such long period of delay posing those as sufficient cause to have stood on their way in filing the Appeal for all these period is not liable interfered with. 7. Keeping in view the submissions made, I have carefully read the impugned order. 8. Admittedly, these Appellants (Defendant Nos.1, 8 and 9) had received summon in the suit wherein they had been arraigned as Defendants. In that view of the matter, they having thereafter remained callous and wholly negligent in defending the suit and then also in carrying out further legal action as against the said decision of the Trial Court, they have been rightly said to be negligent. The delay here is for 5 years 02 months and 12 days. The Appellants (Defendant Nos.1, 8 and 9) having filed the First Appeal after lapse of more than five years, the explanation which have been offered by them are not at all plausible. Page 4 of 5 // 5 // 9. It’s 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 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. For the aforesaid, this Court is of the view that the explanation provided by the Appellants for such long delay in presenting the memorandum of the First Appeal is not at all plausible so as to say that they were prevented by sufficient cause for not filing the Appeal in time and that too after delay of 5 years, 02 months and 12 days. 10.
Decision
In the result, the Appeal stands dismissed. However, there shall be no order as to cost. Judge. (D. Dash), Himansu Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 03-Jan-2024 10:24:31 Page 5 of 5