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IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No.381 of 2023 (From the judgment dated 07.8.2023 passed by learned Addl. District Judge, Mayurbhanj, Baripada in R.F.A. No.03/2022) A.F.R. Prakash Chandra Dash … Appellant -versus- Pradosh Kumar Dash … Respondent Advocates appeared in the case through hybrid mode: For Appellant : Mr.Gautam Misra, Sr. Advocate with Mr. A. Dash -versus- For Respondent : Mr. P.R.Barik, Advocate. --------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 28.08.2024. R.S.A. No.381 of 2023 Page 1 of 11 Sashikanta Mishra,J. The legal heir of the original defendant has preferred this Second Appeal against the
Legal Reasoning
confirming judgment passed by learned District Judge, Mayurbhanj, Baripada, on 07.8.2023 in R.F.A. No.3/2022 whereby the judgment dated 25.9.2010 followed by decree passed by learned Civil Judge (Sr. Division), Udala in C.S. No.93/2008 was confirmed. 2. For convenience, the parties are referred to as per their respective status before the trial Court. 3. The First Appeal being dismissed only on the ground of limitation, it is not necessary to go into the facts of the case before the trial Court in extenso. It would suffice to only mention that the Plaintiff- Respondent filed the aforementioned suit for declaration of title and confirmation of possession over the suit land with prayer for permanent injunction. The suit was decreed on contest as per the above referred judgment. After a gap of 11 years 3 months and 24 days, the present appellant, being the son of R.S.A. No. 381 of 2023 Page 2 of 11 the original defendant filed appeal before the District Court challenging the judgment and decree passed by the trial Court. An application under Section 5 of the Limitation Act was also filed. It was stated that the suit was not maintainable as notification under Section 3 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act had already been issued and as such, the trial Court had no jurisdiction to entertain the suit in view of Sections 4 and 15 of the said Act. Having come to learn about the same, the Appellant asked his father, the original defendant who expressed his ignorance regarding the suit. Therefore, he consulted with an Advocate and as per such legal advice, he filed a separate suit being C.S. No.95/2011 mentioning his father as a person of unsound mind. He filed the suit in the capacity of next friend of his father. Said suit was dismissed on 27.10.2021 whereupon a regular First Appeal has been filed. On such facts, it was contended that on wrong advise of the lawyer, C.S. No.95/2011 was filed and prosecuted for 10 years. Thus, the delay was sought to be R.S.A. No. 381 of 2023 Page 3 of 11 condoned taking aid of Sections 5 and 14 of the Limitation Act. The 1st Appellate Court however, found that the grounds cited by the appellant in the petition for condonation of delay do not constitute sufficient cause for condoning the delay. The petition for condonation was thus rejected and consequently, the appeal was dismissed. 4. Being further aggrieved, the Appellant has preferred this appeal, which has been admitted on the following substantial question of law; “Whether the lower Appellate Court committed an error in ignoring the settled position of law that exclusion of time as provided under Section 14 of the Limitation Act can also be made applicable to appeals”. 5.
Legal Reasoning
Heard Mr. Gautam Misra, learned Senior counsel with Mr. A. Dash, learned counsel for the Appellant and Mr. P.R. Barik, learned counsel for the Respondent. 6. Mr. Misra, learned Senior counsel, would argue that the 1st Appellate Court committed manifest R.S.A. No. 381 of 2023 Page 4 of 11 illegality in holding that the provision under Section 14 is not applicable to appeals. Mr.Misra has relied upon a judgment of the Supreme Court in the case of J. Kumaradarsan Nair and another vs. Iric Sohan and others;1 in this regard. Mr. Misra further argues that the fundamental fact ignored by the 1st Appellate Court is that substantial justice must prevail over technical considerations as held by the Supreme Court in the case of Collector, Land Acquisition, Anantnag and another vs. Mst. Katiji and others;2. The judgment passed by the trial Court was entirely without jurisdiction in view of the provisions of OCH and PFL Act. Therefore, the appeal could not have been dismissed on technicalities as it amounts to perpetuating the illegality committed by the trial Court. Mr. Misra further argues that the Appellant had taken a reasonable plea that he had preferred the other suit on wrong legal advice which by itself is a sufficient cause. 1 (2009) 12 SCC 175 2 AIR (1987) SC 1353 R.S.A. No. 381 of 2023 Page 5 of 11 7. Mr. Barik, on the other hand, has argued that the Appellant cannot invoke the provision under Section 14 of the Limitation Act since it cannot be said that by filing another suit before a wrong forum delay has been caused. On the other hand, the appellant pursued the suit for as long as 10 years and having lost, has also preferred appeal against such dismissal of the suit, which has been admitted for hearing by the 1st Appellate Court. Whether due to wrong legal advice or not, fact remains that pendency of the First Appeal implies that he is still pursuing such remedy and therefore, he cannot invoke Section 14 at the same time. 8. Having heard the rival contentions as above, this Court deems it proper to refer to a few admitted facts only. The plaintiff-respondent filed C.S. No.93/2008 wherein the father of the present appellant-Nilamani Das was the defendant. The suit was decreed on 25.9.2010. Said judgment and decree was never challenged till the present Appellant filed R.F.A. R.S.A. No. 381 of 2023 Page 6 of 11 No.3/2022. In the meantime, the Appellant in the capacity of next friend of his father on the ground of unsoundness of mind filed another suit being C.S. No.95/2011 before the same Court i.e. learned Civil Judge (Sr. Division), Udala, for a declaration that the judgment and decree passed in the former suit, being C.S. No.93/2008, was null and void and for declaration of his title over the suit land. C.S. No.95/2011 was dismissed on 27.10.2021. The present Appellant challenged the dismissal of the suit before the District Judge, Mayurbhanj, in RFA No.4/2022. By order dated 7.8.2023, learned District Judge condoned the delay in filing of the appeal and admitted the same for hearing. Thus, as facts stand at present, the First Appeal preferred by the Appellant against the dismissal of C.S. No.95/2011 is pending. It cannot therefore, be contended by him that he had been pursuing a wrong remedy or before the wrong forum so as to invoke the provision under Section 14 of the Limitation Act. Section 14 reads as follows; R.S.A. No. 381 of 2023 Page 7 of 11 “14. Exclusion of time of proceeding bona fide in Court without jurisdiction. (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. Notwithstanding anything (3) contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908, the (1) shall provisions of sub-section apply in relation to a fresh suit instituted on permission granted by the Court under rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the Court or other cause of a like nature”. R.S.A. No. 381 of 2023 Page 8 of 11 9. A plain reading of the provision would make it clear that the former proceeding must have been disposed of on the ground of defect of jurisdiction or some such technical reason. It is permissible for a person to withdraw such a proceeding instituted before the wrong forum and seek exclusion of the time spent before such forum in the proceeding subsequently preferred by him before the correct forum. Such is not the case here. Since it is trite law that appeal is nothing but continuation of the suit, it implies that the proceeding instituted by the present appellant (C.S. No.95/2011/R.F.A. No.4/2022) must be deemed to be still pending. In such factual scenario, this Court fails to comprehend as to how the appellant can be permitted to simultaneously pursue both the proceedings and that too by claiming exclusion of time in the subsequent proceeding when the former proceeding is still pending. R.S.A. No. 381 of 2023 Page 9 of 11 10. Such being the case, this Court does not deem it necessary to examine the case laws cited by both parties. If the main plea of proceeding before wrong forum on wrong legal advice falls, there is no other plausible explanation put forth by the appellant to explain the inordinate delay occasioned in filing the First Appeal. The judgment and decree passed by the trial Court long back cannot be disturbed only on the contention that the trial Court had no jurisdiction to entertain the suit unless it is shown that any fraud was practiced by the concerned party. There is a certain sanctity attached to the law of limitation and its provisions permitting condonation of delay cannot be invoked at the mere asking. From what has been narrated herein before, this Court does not consider the grounds cited by the Appellant to explain the long delay as sufficient enough to condone the same. Reading of the impugned order reveals that the learned District Judge committed no illegality in refusing to condone the delay. In view of the above discussion, this Court fully concurs with such finding. R.S.A. No. 381 of 2023 Page 10 of 11 11. In the result, this Court finds no merit in the appeal, which is therefore dismissed, but in the circumstances without any cost. …………….……..………. Sashikanta Mishra, Judge Ashok Kumar Behera Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 30-Aug-2024 10:58:10 R.S.A. No. 381 of 2023 Page 11 of 11