The High Court
Case Details
IN THE HIGH COURT OF ORISSA : CUTTACK RSA NO.409 OF 2023 In the matter of appeal under Section-100 of the Code of Civil Procedure, 1908 assailing an order dated 26th July, 2023 passed by the learned Additional District Judge, Rairakhol in RFA No.03 of 2022. ……… Sunil Kumar Samanta & Another :::: Appellants. -:: VERSUS ::- Sushama Das & Others :::: Respondents. Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode. ----------------------------------------------------------------------------------------- For Appellants For Respondents … … ------
Legal Reasoning
Mr. Anam Charan Panda, Advocate CORAM : MR. JUSTICE D.DASH --------------------------------------------------------------------------------------- Date of Hearing: 10.04.2024 :: Date of Judgment:15.04.2024 --------------------------------------------------------------------------------------- D.Dash,J. The Appellants, by filing this Appeal, under Section-100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) have assailed an order dated 26th July, 2023 passed by the learned Additional District Judge, Rairakhol in RFA No.03/2022. The Respondent No.1 as the Plaintiff had filed C.S. No.286/36 of 2015-17 in the Court of the Senior Civil Judge, Rairakhol for partition of the properties described in the schedule of the plaint and allotment of share to her as well as these Appellants and other Respondents (Defendants). The suit stood preliminarily decreed by judgment dated 22.12.2021 followed the preliminary decree dated 06.01.2022. These Appellants being aggrieved by the said judgment and preliminary decree filed an Appeal under section 96 of the Code. There being delay of about six (6) months in filing the said Appeal, they had filed an application under section 5 of the Limitation Act for condonation of delay. The First Appellate Court by the impugned order has refused to condone the delay and rejected the said application under section 5 of the Limitation Act which has led to dismissal of the First Appeal. 2. The present Appeal has been admitted to answer the following substantial question of law:- “Whether the First Appellate Court is right in dismissing the Appeal under section 96 of the Code filed by the present Appellant, challenging the judgment and preliminary decree passed in Civil Suit No.286/36 of 2015-17 by refusing to condone the delay of about six months in filing the same, finding no such sufficient cause to have prevented the Defendant Nos.5 & 6 during the period?” 3. Learned counsel for the Appellants submitted that the suit for partition having been decided by judgment dated 22nd December, 2021 followed by the preliminary decree dated 06.01.2022. The Appellants (Defendant Nos.5 and 6) filed the First Appeal in that very year of 2023 after a delay of about six months and the delay had occasioned for the Page 2 of 5 illness of the wife of Appellant No.2 (Defendant No.6) from 15.12.2021 to 09.05.2022 and as he was looking after the matter also on behalf of the Appellant No.1 (Defendant No.5) there was delay in filing the Appeal. He further submitted that during that period the second wave of COVID-19 pandemic was in surge. He, therefore, contended that there being no such long delay and in view of the supervening incident, the First Appellate Court ought to have accepted the explanations offered by these Appellants (Defendant Nos.5 and 6) as plausible and holding that the Appellants were prevented by sufficient cause in filing the Appeal after delay ought to have allowed the application under section 5 of the Limitation Act and admitted the Appeal for hearing on merit. 4. None appeared on behalf of the Respondents despite due service of notice. 5. Keeping in view the submissions made I have carefully gone through the order impugned in this Appeal. 6. The suit for partition has been filed by the Respondent No.1 as the Plaintiff. These Defendant Nos.5 and 6 were very much contesting the suit by filing written statements. The judgment and preliminary decree assailed in the First Appeal being passed on 22.12.2021 and 06.01.2022 respectively, the Memorandum of Appeal has been presented before the Page 3 of 5 First Appellate Court on 09.05.2022. Thus, here the delay is not for such a long period. It is the settled position of law that a litigant does not make any gain for delayed filing the Appeal and the Court in such matter where the delay is not for too long a period should have the liberal approach in order to see that the litigation is decided on merit rather than on technicalities. During the particular period on account of second surge of COVID-19 pandemic, the Hon’ble Apex Court had also extended the period of limitation for filing the Appeal and other proceedings. In the backdrop of aforesaid, the First Appellate Court appears to have made a pedantic approach in not accepting the explanations offered by the Appellants (Defendant Nos.5 and 6) for the delayed filing of the Appeal and in the facts and circumstances of the case, the First Appellate Court ought to have held that the Appellants were prevented by sufficient cause in not filing the Appeal within the time prescribed. Accordingly, the First Appellate Court, in my considered view, in the particular case ought to have condoned the delay for hearing on the admission of the First Appeal filed by the Appellants (Defendant Nos.5 and 6) in exercise of their statutory right for its decision on merit. Page 4 of 5 7. The substantial question of law is accordingly decided in favour of the Appellants (Defendant Nos.5 and 6). In that view of the matter, it
Decision
is held that the impugned order is liable to be set aside. 8. In the result, the Appeal stands allowed without costs. The impugned order dated 26th July, 2023 passed by the learned Additional District Judge, Rairakhol in RFA No. 03/2022 is hereby set aside. Accordingly, the First Appellate Court is directed to hear and dispose of the First Appeal (RFA No.03/2022) on its own merit in accordance with law. The Appellants (Defendant Nos.5 and 6) are hereby directed to appear before the First Appellate Court on 06.05.2024 to receive further instruction. Since the Respondents are absent, the Appellants would take step for service of notice of the First Appeal upon them as would be so directed by the First Appellate Court by fixing the date of hearing. It is further observed that the First Appellate Court would do well to proceed with the hearing of the First Appeal with expediency for its disposal as expeditiously as possible, preferably within a period of six months computed with effect from the date of appearance of the Respondents. Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 29-Apr-2024 19:09:15 Himansu (D. Dash), Judge. Page 5 of 5