M/s. B. Mohanty, S. Sahoo & N.K. Rout, Advocates v. For Opp. Parties : M/s. A.K. Jena, R.N. Swain, A.P. Rath & P. Sinha
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMAPL No. 273 of 2024 An application under Chapter VIII, Rule-30 of the Orissa High Court Rules, 1948, for restoration. --------------- Manoj Kumar Sahoo and Others …. Petitioners -versus- Ram Devi Sahoo & Others …. Opp. Parties Advocate(s) appeared in this case:- _______________________________________________________ For Petitioners : M/s. B. Mohanty, S. Sahoo & N.K. Rout, Advocates Vs. For Opp. Parties : M/s. A.K. Jena, R.N. Swain, A.P. Rath & P. Sinha, Advocates __________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 23.12.2025 I.A. No.459 of 2025 SASHIKANTA MISHRA, J. This an application filed by the petitioners seeking condonation of delay in filing the application for Page 1 of 8 restoration (CMAPL) to restore the Second Appeal dismissed for non-prosecution. 2. S.R. has pointed out delay of 1356 days. It is stated under paragraph-3 of the application that the petitioners had no knowledge about the Second Appeal being dismissed for non-prosecution and came to know only on 09.08.2025, when they received notice of the execution proceeding. 3.
Legal Reasoning
Mr. Mohanty, learned counsel for the petitioners submits that the appeal was admitted and substantial questions of law were framed. However, since the conducting lawyer had missed the list, the Second Appeal was dismissed for default. This fact was not communicated to the petitioners and as such they remained in the dark and came to know only after receiving notice in the execution proceeding. It is further submitted that unless the delay is condoned, the petitioners would be put to severe loss. In support of the submissions, two judgments of the Supreme Court has been cited by Mr. Mohanty, namely, N. Balakrishnan V. M. Krishnamurthy [Civil Page 2 of 8 Appeal Nos. 4575-76 of 1998 (@SLP (C) No.8712-13 of 1998)] decided on 03.09.1996 and Indian Oil Corporation Ltd. and Others v. Subrata Borah Chowlek and Others, [Civil Appeal Nos. 9726-9727 of 2010 (arising out of SLP(C) Nos. 14520-14521 of 2010) decided on 12.11.2010. 4. Per contra, Mr. Jena has opposed the prayer for condonation by submitting that the conduct of the petitioners does not entitle them to any liberal consideration. He refers to the order sheet of the Second Appeal to submit that the petitioners were very negligent in conducting the Second Appeal also. Merely by claiming that they had no knowledge of the dismissal of the appeal they cannot be said to have shown sufficient cause for the inordinate delay. 5. After hearing learned counsel for the parties, this Court deems it proper to first refer to the judgments cited above. In the case of Indian Oil Corporation Ltd. (supra), the Supreme Court held as follows:- Page 3 of 8 “7. Having heard the learned counsel, we are of the opinion that in the instant case a sufficient cause had been made out for condonation of delay in filing the appeal and therefore, the High Court erred in declining to condone the same. It is true that even upon showing a sufficient cause, a party is not entitled to the condonation of delay as a matter of right, yet it is trite that in construing sufficient cause, the Courts generally follow a liberal approach particularly when no negligence, inaction or mala fides can be imputed to the party, (See: Shakuntala Devi Jain v. Kuntal Kumari and Others MANU/ SC/ 0335/1968:(1969) 1 SCR 1006; The State of West Bengal v. The Administrator, Howrah Others. MANU/SC/ Municipality (1972) 1 SCC 366; N. 0534/1971 Balakrishnan Krishnamurthy v. MANU/SC/0573/1998 (1998) 7 SCC 123; Sital Prasad Saxena v. Union of India and Others; MANU /SC/0294/1984 : (1985) 1 SCC 163).” and M. : (Emphasis added) 6. In the said case, the Supreme Court also relied upon its earlier judgment passed in Ram Nath Sao Alias Ram Nath Sahu and Others v. Gobardhan Sao and Others, (2002) 3 SCC 195, wherein the following was held:- “But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over –jubilation of disposal drive. Acceptance of explanation Page 4 of 8 furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner. However, by taking a pedantic and the hyper-technical view of explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates, either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way.” the matter 7. In the case of N. Balakrishnan (supra), the Supreme Court held as follows:- “9. It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncontainable due to want of acceptable explanation whereas in certain other cases delay of very long range can be is condoned as the explanation thereof Page 5 of 8 the Court accepts satisfactory. Once the explanation as sufficient it is the result of positive exercise of discretion and normally the superior Court should disturb such finding, much less in regional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior Court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammeled by the conclusion of the lower Court. 13. It must remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the Court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the Court shall compensate the opposite party for his loss.” 8. The facts of the case now need to be considered on the backdrop of the ratio decided in the aforementioned cases. Page 6 of 8 9. Coming to the application for condonation, this Court finds no plausible reason cited to explain the inordinate delay, save and except the plea that the petitioners had no knowledge that the Second Appeal had been dismissed for non-prosecution. This can hardly be accepted, as it otherwise proves that the petitioners were not diligent in pursuing the Second Appeal. Even the order sheet of the Second Appeal would fortify the above finding. The ratio decided in the cases cited at the bar is to the effect that while the Court is expected to take a liberal view yet delay has to be properly explained. If sufficient reason has not been shown, the Court cannot be persuaded to adopt a liberal approach. 10. As has already been narrated hereinbefore, the conduct of the petitioners in pursuing the litigation does not, in the least, suggest that they were diligent or had the required knowledge of or diligence in prosecuting the litigation. The explanation offered does not come out as plausible, rather it can be treated as a dilatory tactic to Page 7 of 8 frustrate the ongoing execution proceeding pursuant to dismissal of the Second Appeal. 11. This Court is, therefore, not inclined to accept the explanation submitted by the petitioners for condonation of the inordinate delay. The I.A. is therefore dismissed. Consequently, the CMAPL stands dismissed. ..……..………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 23rd December, 2025/ B.C. Tudu, Sr.Steno Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Reason: Authentication Location: Orissa High Court, Cuttack Date: 24-Dec-2025 19:21:03 Page 8 of 8