The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 1332 OF 2022 Ajit Kumar Lenka and others …. Petitioners Mr. Amit Prasad Bose, Advocate -versus- Jayadev Lenka and others Opp. Parties Mr. Ranjan Kumar Nayak, Advocate (For Opp. Party Nos.1 to 4) …. CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 28.03.2023 3. 1. 2. This matter is taken up through hybrid mode. Order dated 29th November, 2022 (Annexure-1) passed by learned District Judge, Balasore in RFA No. 67 of 2020 is under challenge in this CMP, whereby an application for condonation of delay filed by Opposite Party Nos.1 to 4 in filing the appeal has been allowed. 3. Mr. Bose, learned counsel for the Petitioner submits that C.S. No.11/2012-I/487/2014 has been filed by the Petitioners for partition. The preliminary decree was passed on 24th August, 2019. The Defendant Nos.3 to 6, who are Opposite Party Nos.1 to 4, had filed their written statement. They also participated in the hearing of the suit, but they did not adduce any oral or documentary evidence in support of their case. Hence, the suit was decreed on contest holding that the Plaintiffs and Defendant Nos.1 and 2 are entitled to 1/4th share each over the suit property. Although Defendant Nos.3 to 6-Opposite Party Nos.1 to 4 participated in the hearing of the suit, but after lapse of more Page 1 of 4 // 2 // than one year, they filed the appeal on 9th October, 2020 along with an application under 2nd part of Article 123 of the Limitation Act to condone the delay of 381 days in filing the appeal. In the petition for condonation of delay, the main ground was taken that they could not know about the judgment as learned Advocate engaged by them did not intimate about the same. They came to know about the judgment passed in the suit on 28th September, 2020, when the Plaintiffs-Petitioners intimated them about the same. As such, they searched the case record by engaging an Advocate and obtained the certified copy of the judgment and decree passed in the suit on 7th October, 2020. Thereafter, they filed the appeal. The Opposite Party Nos.1 to 4 had also made some aspersion against learned trial Court. The Petitioners filed a detailed objection to the petition for condonation of delay stating that the Opposite Party Nos.1 to 4 had knowledge about the judgment and decree passed in the suit. Only to linger the proceeding and see that the suit property is not partitioned, the appeal has been filed with a delay of 381 days. Learned Appellate Court observing that the Opposite Party Nos.1 to 4-Appellants had no knowledge about the judgment and decree as their Advocate did not intimate about the same, allowed the application for condonation of delay subject to payment of cost of Rs.3,000/- to the Plaintiffs- Petitioners. It is his submission that the Opposite Party Nos.1 to 4 did not come to the Court with clean hands. Learned Appellate Court did not at all take into consideration that Defendant Nos.3 to 6, who are Appellants, had filed their written Page 2 of 4 // 3 // statement and also participated in the hearing of the suit. Thus, it is expected that they were aware of the date of judgment passed in the suit. There is also no material on record to show that Defendant Nos.3 to 6 had no knowledge of the judgment passed in the suit. Hence, the impugned order under Annexure-1 is not sustainable in the eyes of law and is liable to be set aside. 4. Mr. Nayak, learned counsel for Opposite Party Nos.1 to 4 submits that after filing of the written statement by Defendant Nos.3 to 6, learned Advocate engaged by them filed a ‘no instruction memo’ without intimating them. It is the duty of the Court to issue fresh notice to the Defendant Nos.3 to 6 to participate in the hearing of the suit. As such, the decree was passed ex parte against the Defendant Nos.3 to 6 as they did not contest the suit. He further submits that nomenclature of the petition is not relevant for consideration of the relief sought for in the petition itself. As learned counsel engaged by them did not intimate about the result of the suit, there was a delay of 381 days in filing the appeal. Learned Appellate Court considering the matter from its proper prospective allowed the application for condonation of delay. Hence, the impugned order warrants no interference. 5. Considering the rival contentions of the parties, this Court finds that the Defendant Nos.3 to 6-Oppsoite Party Nos.1 to 4 had filed their written statement. They had also participated in the hearing of the suit, although they did not adduce any oral or documentary evidence in support of their case as would be evident from the judgment passed in the suit annexed to the Page 3 of 4 // 4 // CMP as Annexure-2. Thus, prima facie the submission of Mr. Nayak, learned counsel for Opposite Party Nos.1 to 4 to the effect that their counsel filed a ‘no instruction memo’ and did not intimate about the result of the suit, appears to be not correct. It, however, requires consideration by scrutinizing the materials on record. No doubt, delay in filing the appeal should be considered liberally, but lack of bona fide is significant in considering an application for condonation of delay. In the instant case, delay is more than one year in filing the appeal. Thus, learned Appellate Court should have scrutinized the materials in detail while adjudicating the petition for condonation of delay. 6. In view of the above, this Court feels that the petition for condonation of delay requires fresh consideration. Accordingly, the impugned order under Annexure-1 is set aside and the matter is remitted back to the learned District Judge, Balasore to consider the petition for condonation of delay afresh giving opportunity of hearing to the parties concerned. 7. With the aforesaid observation and direction, the CMP is disposed of. Urgent certified copy of this order be granted on proper application. bks (K.R. Mohapatra) Judge Page 4 of 4