The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 1332 OF 2023 …. Kapila Charan Pradhan and others Petitioners Mr. Samir Kumar Mishra, Senior Advocate being assisted by Mr. J. Pradhan, Advocate Dillip Kumar Mishra …. Opp. Party -versus- CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 10.01.2024 1. 1. This matter is taken up through hybrid mode. 2. Order dated 2nd September, 2023 (Annexure-10) passed by learned Additional District Judge, Nimapara in FAO No.17 of 2023 (arising out of I.A. No.122 of 2020) is under challenge in this CMP, whereby learned Appellate Court condoned the delay in filing the appeal under Order XLIII Rule 1(r) C.P.C. 3. Mr. Mishra, learned Senior Advocate appearing for the Petitioners submits that along with the plaint, I.A. No.122 of 2020 was filed under Order XXXIX Rules 1 and 2 read with Section 151 C.P.C. The said I.A. was allowed on contest on 19th September, 2022 by learned Civil Judge (Senior Division), Nimapara. Thereafter, the Opposite Party filed an application under Order XXXIX Rule 4 C.P.C. to vary the order of injunction. The said petition was registered as CMA No.27 of 2022. Considering the matter in its proper prospective, learned trial Court rejected the petition vide order dated 24th February, 2023 (Annexure-7). Thereafter, an appeal in FAO No.17 of 2023 was filed before learned Additional District Judge, Page 1 of 5 // 2 // Nimapara assailing the order dated 19th September, 2022 passed in I.A. No.122 of 2020. The memorandum of appeal was filed on 24th March, 2023, i.e. beyond the statutory period of limitation. Thus, an application under Section 5 of the Limitation Act was also filed along with the appeal memo for condonation of delay. In the said petition, the Opposite Party had taken a ground that he is a chronic heart patient and has undergone cardiac surgery. During the relevant period, he was seriously ill and was undergoing treatment under his physician. Thus, he could not know about the order dated 19th September, 2022 passed in I.A. No.122 of 2020. On recovery, he was informed about the said order. Thus, he prayed for condonation of delay in filing the appeal. An objection to the I.A. was filed stating that the plea taken by the Petitioners was a myth. At paragraphs-3 and 4 of the objection, the Petitioners stated as under: 3. That, the real fact of the case as follows The applicant is not a chronic heart patient and he is heal and hearty and no point of time was under the treatment under physician. The petition is silent the name of physician and from which date the period of treatment. The appellant is a court bird and in every date of C.S No- 222/20 and LA No- 122/20 was present before the court and not only civil court but he was looking after his cases before the consolidation and revenue court and also registered some documents before the Sub-Register. is disposed on 4. That, 19.09.2022 which was within the knowledge of the appellant the appellant also obtained the certified copy and No F.A.O is filed against the order of I.A No- 122/20. The appellant filed a application U/o 39 rule 4 on 1st January 2023 before the court of Civil Judge Senior Division, Nimapara in C.M. APL the I.A No- 122/20 Page 2 of 5 // 3 // No- 27/23 to modify the order which passed in I.A No- 122/20. In that C.M application the appellant disclosed about the order the 1.A No- 122/20. The appellant present before the court and execute an affidavit on 18.01.2023 and also verify on 19.01.23 in the said C.M application. The C.M is disposed on 24.02.23. These order is also within the knowledge of the appellant. No appeal is filed against the order of C.M application no- 27/2022. The appellant also move so many Government office after 19.09.2022 till filing of the present F.A.O. The F.A.O filed on 24.03.2023 after elapse of six months and there is no satisfaction reason given in the delay condemn petition for which the same may be rejected. So in view of above facts and circumstances the petition of condemnation of delay may be rejected and the F.A.O should not be admitted. 4. Objection raised by the Petitioners was not taken into consideration by learned Appellate Court while condoning the delay. Blindly believing that the Opposite Party had no knowledge of the order dated 19th September, 2022 passed in I.A. No.122 of 2020, the delay of more than six months was condoned. It is his submission that learned Appellate Court though took note of the fact that the Opposite Party had filed an application under Order XXXIX Rule 4 C.P.C. on 19th January, 2023 and he had sworn the affidavit as well as signed the verification being present in Court, but he (the Opposite Party) took a plea that he had no knowledge about the order impugned in the FAO. This aspect although taken note of, but learned Appellate Court taking into consideration the medical documents issued by the authority of the Hospital condoned the delay of 153 days in filing the appeal. No doubt, the delay should be condoned liberally, but a false plea taken by a party Page 3 of 5 // 4 // should not be the ground to condone the delay. Since the Opposite Party did not approach learned Appellate Court with clean hands and resorted to falsehood to condone the delay, it should have been rejected outright. Learned Appellate Court failed to appreciate the same and passed the impugned order under Annexure-10. 5. Considering the submission made by learned counsel for the Petitioner and on perusal of the record, it appears that learned Appellate Court has taken note of the objection raised by the Petitioners in their objection to the petition for condonation of delay filed by the Opposite Party. But the said objection was not discussed and the impugned order has been passed. From the record, it prima facie appears that the Opposite Party had sworn the affidavit of the petition under Order XXXIX Rule 4 C.P.C. on 18th January, 2023. Thus, he had knowledge of the order dated 19th September, 2022 passed in I.A. No.122 of 2020 on the said date. But, taking a plea that he was not aware of the impugned order and was completely bedridden, sought for condonation of delay of 153 days. Thus, the plea taken by the Opposite Party appears to be not correct. As rightly pointed out by learned counsel for the Petitioners, delay in filing the appeal should be condoned liberally. But, such a prayer cannot be granted, if a party adheres to falsehood. Be that as it may, the same requires consideration by learned Appellate Court by scrutinizing the materials available on record. As learned Appellate Court has not made any endeavour to discuss the objection filed by the Petitioners, the petition for condonation of delay requires fresh consideration. Page 4 of 5 // 5 // 6. Accordingly, the impugned order under Annexure-10 is set aside and the matter is remitted to learned Additional District Judge, Nimapara to consider the petition for condonation of delay filed by the Opposite Party afresh giving opportunity of hearing to the parties concerned. 7. With the aforesaid observation and direction, the CMP is disposed of. 8. Since the CMP is disposed of without issuing notice to the Opposite Party, he is at liberty to seek for variation of this order, if he feels aggrieved. Urgent certified copy of this order be granted on proper application. bks (K.R. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-Jan-2024 17:57:58 Page 5 of 5