The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRP No.43 of 2023 (In the matter of an application under Section 115 of the Code of Civil Procedure) Sri Jeetendra Beura …. Petitioner Raj Kishore Rout and others …. Opposite Parties -versus- Appeared in this case:- For Petitioner For Opposite Parties : : Mr. Sandipani Mishra, Advocate Mr. P.K. Rath, Sr. Advocate assisted by Ms. S. Das, Advocate CORAM: JUSTICE A.C. BEHERA JUDGMENT Date of hearing :04.07.2025/date of judgment: 25.07.2025 A.C. Behera, J. This revision under Section 115 of the C.P.C., 1908 has been filed by the petitioner against the Opposite Parties praying for setting aside the impugned order dated 01.11.2023 passed in R.F.A. No.9 of 2021 under Section 5 of the Indian Limitation Act, 1963 (which was filed for condonation of delay in preferring an appeal vide R.F.A. No.9 of 2021) by the learned District Judge, Khurda at Bhubaneswar. 2. The petitioner in this revision is the Respondent No.1 in R.F.A. No.9 of 2021 pending in the court of the learned District Judge, Khurda at Bhubaneswar. The Opposite Party No.11 in this revision is the Respondent No.2 in that R.F.A. No.9 of 2021 and the Opposite Party Nos.1 to 10 in this revision are the appellants in R.F.A. No.9 of 2021. 3.
Legal Reasoning
The factual backgrounds of this revision, which prompted the petitioner for filing of the same is that, the petitioner in this revision instituted a suit vide C.S. No.1949 of 2016 against Kunjalata Sahoo @ Rout (predecessor of the Opposite Party Nos.1 to 10 in this revision) praying for a decree of specific performance of contract in respect of the suit properties on the basis of a registered agreement to sell and also for a decree of permanent injunction. 4. The said suit vide C.S. No.1949 of 2016 filed by the petitioner/plaintiff was decreed ex parte on dated 19.05.2018 against Kunjalata Sahoo @ Rout(predecessor of the Opposite Party Nos.1 to 10). Thereafter, the Page 2 of 15 petitioner(plaintiff) filed an execution case vide Execution Case No.26 of 2018 in the court of the learned Civil Judge(Sr. Division), Bhubaneswar to execute the decree passed on dated 19.05.2018 in the suit vide C.S. No.1949 of 2016 against Kunjalata Sahoo @ Rout. As, that Kunjalata Sahoo @ Rout had expired, then her legal heirs(Opposite Party Nos.1 to 10) were substituted in her place in the said Execution Case No.26 of 2018. The successors of Kunjalata Sahoo @ Rout, i.e., Opposite Party Nos.1 to 10 filed I.A. No.3 of 2021 and I.A. No.4 of 2021 in that Execution Case No.26 of 2018 praying for dropping that execution case on the ground that, the ex parte decree passed in C.S. No.1949 of 2016 against their predecessors is not executable, because prior to the passing of the said decree on dated 27.11.2017, their predecessors, i.e., Kunjalata Sahoo @ Rout had already expired. For which, the decree passed in the suit vide C.S. No.1949 of 2016 against their above deceased predecessor is a nullity on the ground of passing of the same against a dead man. 5. The executing court in Execution Case No.26 of 2018 rejected both the I.As. vide I.A. No.3 of 2021 and I.A. No.4 of Page 3 of 15 2021 of the successors of the deceased defendant in C.S. No.1949 of 2016 on dated 21.07.2022. For which, the successors of Kunjalata Sahoo @ Rout (Opposite Party Nos.1 to 10 in this revision) challenged the same by filing two civil revisions vide C.R.P. Nos.9 of 2022 and 10 of 2022 before the learned District Judge, Khurda at Bhubaneswar and both the civil revisions were allowed. To which, the petitioner/plaintiff challenged the same by filing CMP Nos.295 of 2023 and 296 of 2023 before this Court and the said CMPs are subjudice/pending in the High Court for adjudication. In the meantime, the successors of the deceased defendant Kunjalata Sahoo @ Rout in the suit vide C.S. No.1949 of 2016 filed first appeal vide RFA No.9 of 2021 under Section 96 of the C.P.C., 1908 in the court of the learned District Judge, Khurda at Bhubaneswar challenging the ex parte decree dated 19.05.2018 passed in the C.S. No.1949 of 2016 by the learned Civil Judge(Sr. Division), Bhubaneswar along with a petition under Section 5 of the Indian Limitation Act, 1963 praying for condonation of delay in filing that appeal vide RFA No.9 of 2021 on the Page 4 of 15 ground that, the judgment and decree in the suit vide C.S. No.1949 of 2016 has been passed ex parte against their deceased predecessor without their knowledge and due to the affect of Covid-19 Pandemic during that period, they could not prefer appeal in due time. 6. The plaintiff, in the suit vide C.S. No.1949 of 2016, who was arrayed as Respondent No.1 in the 1st appeal vide R.F.A. No.9 of 2021 objected to the aforesaid petition under Section 5 of the Indian Limitation Act, 1963 of the appellants stating that, as the appellants in the appeal had filed I.A. No.3 of 2023 and I.A. No.4 of 2023 in the Execution Case No.26 of 2018 and they had participated in I.A. No.3 of 2023 and I.A. No.4 of 2023 as well as in CMP Nos.295 and 296 of 2023, then at this juncture, it cannot be said that, the delay in preferring the appeal vide R.F.A. No.9 of 2021 by them(appellants) for setting aside the judgment dated 19.05.2018 passed in C.S. No.1949 of 2016 was bonafide. For which, the petition under Section 5 of the Indian Limitation Act, 1963 filed by the appellants in R.F.A. No.9 of 2021 praying for condonation of delay of two years ten months and two days cannot be allowed. Therefore, Page 5 of 15 their petition under Section 5 of the Indian Limitation Act, 1963 as well as the appeal vide R.F.A. No.9 of 2021 filed by them (appellants) are liable to be rejected and dismissed. 7. After hearing from the learned counsels of both the sides, the learned District Judge, Khurda at Bhubaneswar allowed the petition under Section 5 of the Indian Limitation Act, 1963 of the appellants in R.F.A. No.9 of 2021 on dated 01.11.2023 on contest and condoned the delay in preferring the appeal by the appellants(Opposite Party Nos.1 to 10 in this revision) subject to payment of cost of Rs.3,000/-(rupees three thousand) by the appellants to the Respondent No.1(plaintiff) assigning the reasons that, “the court should adopt justice oriented approach in matter concerning delay and not to strike down the appeal, revision, etc. in a mechanical manner, because, it is the settled position of law that either party be given opportunity to stand their case in accordance with law.” 8. On being aggrieved with the said order dated 01.11.2023 passed in R.F.A. No.9 of 2021 by the learned District Judge, Khurda at Bhubaneswar in allowing the Page 6 of 15 petition under Section 5 of the Indian Limitation Act, 1963 of the appellants for condonation of delay, the Respondent No.1 of that appeal(plaintiff in the suit vide C.S. No.1949 of 2016) challenged the same by filing this revision being the petitioner against the appellants in R.F.A. No.9 of 2021 arraying them Opposite Party Nos.1 to 10. 9.
Legal Reasoning
I have already heard from the learned counsel for the petitioner(Respondent No.1 in R.F.A. No.9 of 2021) and the learned counsel for the Opposite Parties (appellants in R.F.A. No.9 of 2021). 10. In order to assail the impugned order dated 01.11.2023 passed in RFA No.9 of 2021 by the learned District Judge, Khurda at Bhubanswar, the learned counsel for the petitioner/respondent no.1 relied upon the following decision of the Apex Court:- Esha Bhattacharjee vrs. Managing Committee (i) of Raghunathpur Nafar Academy and others : reported in 2013 AIR SCW-6158. 11. In support of the impugned order, the learned Senior Counsel for the Opposite Party Nos.1 to 10 relied upon the following decisions:- Page 7 of 15 (i) Collector, Land Acquisition, Anantnag and another vrs. Mst Katiji and others : reported in (1987) 2 SCC-107 : (1987) ITR-471 : (1987) 66 STC- 228. Inder Singh vrs. The State of Madhya Pradesh (ii) : reported in 2025 LiveLaw(SC)-339. 12. It is the undisputed case of the parties that, the ex parte judgment and decree in the suit vide C.S. No.1949 of 2016 was passed on dated 19.05.2018. The Opposite Party Nos.1 to 10 in this revision preferred an appeal vide R.F.A. No.9 of 2021 as the successors of the defendant in the suit vide C.S. No.1949 of 2016 challenging the judgment and decree passed in C.S. No.1949 of 2016 on dated 22.04.2021 in delay of two years ten months two days by filing a petition under Section 5 of the Indian Limitation Act, 1963 with the appeal memo of R.F.A. No.9 of 2021 praying for condonation of above delay in filing the appeal vide R.F.A. No.9 of 2021. 13. Taking into account the affect of Covid-19 Pandemic, Three Judges Bench of the Hon’ble Supreme Court of India, passed judgment on dated 10.01.2022 in RE : Cognizance for extension of limitation, and in the said judgment, Hon’ble Supreme Court excluded the period since Page 8 of 15 15.03.2020 till 28.02.2022 from limitation clarifying that, the said period shall not be counted as limitation in preferring any case or an appeal. As the period since the date of judgment in the suit vide C.S No 1949 of 2016, i.e., since 19.05.2018 till filing of the appeal, i.e., till 22.04.2021 is coming under the affected period Covid-19 Pandemic, for which, in view of the aforesaid judgment of the Apex Court in Suo Motu Writ Petition(C) No.3 of 2020 passed on dated 10.01.2022, one year one month and seven days, i.e., the period since 19.05.2018 till 22.04.2021 is to be excluded from the delay of two years ten months and two days in preferring the appeal vide RFA No.9 of 2021 for computation of the period of limitation in preferring the said appeal. 14. So, after exclusion of one year one month and seven days from the delay of two years ten months two days in preferring the appeal vide RFA No.9 of 2021 by the appellants, it is held that, there was actual delay of one year nine months and seven days in preferring the appeal vide R.F.A. No.9 of 2021 by the appellants. Page 9 of 15 15. The 1st appellate court has condoned the delay in the impugned order dated 01.11.2023 in preferring the appeal vide R.F.A. No.9 of 2021 by the appellants after taking into account the materials on record in order to give an opportunity of being heard to both the parties in the appeal vide R.F.A. No.9 of 2021 on merit. It is the settled propositions of law that, “rights of the parties are to be adjudicated upon merits of their controversies. The parties should not be thrown out merely on technicalities. Law courts will lose its efficacy, if they cannot possibly respond to the needs of the society. Technicalities there might be many, but, the justice oriented approach ought not to be thwarted on the basis of such technicalities. Since technicality cannot and ought not to outweigh the course of justice. Therefore, the courts always be in favour of rendering substantial justice, rather than technicalities. Even if, a party is negligent in defending the suit or proceedings, still, other party can be compensated through costs for no other reason, but only to allow both the parties to have hearing of the case on merit for no other reason, but, only in order to avoid the multiplicity of Page 10 of 15 litigations between the parties. Because, it is the duty of a good Judge to try always to put an end to the litigation, but, he should not allow to grow a suit out of a suit.” 16. On this aspect, the propositions of law has already been clarified in the ratio of the following decisions:- In a case between Ms. Grewal vrs. Deep (i) Chand Sood, AIR 2001 (S.C) 3660, Harman Das Sethi and another vrs. Haridwar Development Authority : IV(2005) Civil Law Times-426(D.B) (Uttranchal), Nabha Gaushala Committee(Regd.) vrs. Narinder Singh and another: IV(2005) Civil Law Times-424(P&H), Yanaimal Thottam Trust vrs. B. Lakshmanan and another : IV(2005) Civil Law Times-347(Madras) that, law courts will lose their efficacy, if it cannot possibly respond to the needs of the society. Technicalities there might be many, but, the justice oriented approach ought not to be thwarted on the basis of such technicalities. Since technicalities cannot and ought not to outweigh the course of justice. In a case between State of Nagaland vrs. (ii) Lipok AO and others : reported in (2005) 3 SCC- 752—For condonation of delay, court must take justice-oriented approach, while considering an application for condoning delay, court in view of larger public interest should take lenient view in such situation and condone the delay, however, huge may be the delay and to have the case decided on merits. The court should decide the matters on merit, unless the case is hopelessly without merit. (iii) In a case between Inder Singh vrs. The State of Madhya Prdesh : reported in 2025(2) Civil Court Cases(S.C.)-772—That, delay cannot be condoned without sufficient cause. However, if in a particular case, the merits have to be examined, it should not be scuttled merely on the basis of limitation. Held, second appeal deserves to be Page 11 of 15 heard, contested and decided on merits. Delay condoned subject to cost. 17. The purpose of enactment and object of the C.P.C., 1908 is really Rules of natural justice. Its purpose is to enable both the parties to get hearing of the case on merit. 18. On this aspect, the propositions of law has already been clarified by the Apex Court in the ratio of the following decisions:- (i) In a case between Sumit Bai and others vrs. Paras Finance Company Registered Partnership firm Beawer(Raj.) through Mankanwar(SMT) W/o Parasmal Chordia(dead) and others : reported in IV(2007) Civil Law Times-37(S.C.) (Para-8) that, the purpose of enactment and object of the Civil Procedure Code—Civil Procedure Code is really rules of natural justice. Its purpose is to enable both the parties to get a hearing. (ii) In a case between Alka Gupta vrs. Narender Kumar Gupta : reported in (2010) 10 SCC-141 that, the Code of Civil Procedure is nothing but an exhaustive compilation-cum-enumeration of the principles of natural justice with reference to a proceeding in a court of law. (iii) In a case between Robin Thappa vrs. Rohit Dora : reported in 2019(II) OJR(S.C.)-557(Para-8) that, a litigation is based on adjudication on the merits of the contentions of the parties. Litigation should not be terminated by default, either of the plaintiff or the defendant. The cause of justice does require that, as far as possible, adjudication of litigation be done on merits. 19. Here, in this matter at hand, when the Opposite Party Nos.1 to 10 in this revision being the appellants have Page 12 of 15 preferred an appeal vide R.F.A. No.9 of 2021 in delay of one year nine months twenty seven days as clarified above praying for setting aside an ex parte judgment and decree passed against their deceased predecessor Kunjalata Sahoo @ Rout in the suit vide C.S. No.1949 of 2016 and when, the appellate court has condoned the said delay as per the impugned order dated 01.11.2023 subject to payment of cost of Rs.3,000/-(rupees three thousand) in order to give opportunity to both the parties to get hearing of the appeal vide R.F.A. No.9 of 2021 on merit and when, the Opposite Parties (appellants in R.F.A. No.9 of 2021) are eagerly interested to contest the said appeal vide R.F.A. No.9 of 2021 on merit, then, at this juncture, by applying the principles of law clarified in the ratio of the aforesaid decisions referred in Paragraph Nos.16 and 18 along with decisions relied upon by the learned counsels of the both the sides indicated in Paragraph Nos.10 and 11 of this judgment, it is held that, the interest of justice shall bestly be served, if the judgment in this revision will be passed without interfering with the impugned order dated 01.11.2023 passed in R.F.A. No.9 of 2021 concerning the Page 13 of 15 condonation of delay in preferring the appeal by the appellants (Opposite Party Nos.1 to 10), but, interfering with the payment of amount towards cost for condonation of such delay enhancing the cost amount from Rs.3,000/- (rupees three thousand) to Rs.10,000/-(rupees ten thousand). 20. Therefore, on the basis of the aforesaid findings and observations, this revision filed by the petitioner(plaintiff) is allowed in part on contest. 21. The impugned order passed on dated 01.11.2023 in RFA No.9 of 2021 by the learned District Judge, Khurda at Bhubaneswar allowing the petition under Section 5 of the Indian Limitation Act, 1963 for condonation of delay is confirmed, subject to payment of cost of Rs.10,000/-(rupees ten thousand) only modifying / enhancing the imposed cost amount from Rs.3,000/-(rupees three thousand) to Rs.10,000/-(rupees ten thousand). 22. The parties in this revision are directed to appear before the learned District Judge, Khurda at Bhubaneswar in R.F.A. No.9 of 2021 on dated 11.08.2025 for the purpose Page 14 of 15 of receiving the directions of the learned District Judge, Khurda at Bhubaneswar as to further proceedings of that R.F.A. No.9 of 2021 and the appellants of the said R.F.A. No.9 of 2021 ( Opposite Party Nos.1 to 10 in this revision) are directed to pay the aforesaid cost, i.e., Rs.10,000/- (rupees ten thousand) to the Respondent No.1 of that R.F.A. No.9 of 2021(plaintiff in the suit) within a week since 11.08.2025 positively. 23. The Learned District Judge, Khurda at Bhubaneswar shall take it’s best endeavor to dispose of the appeal vide R.F.A. No.9 of 2021 pending before him within four months since 11.08.2025. 24. Registry is directed to communicate a copy this judgment immediately to the District Judge, Khurda at Bhubaneswar in reference to R.F.A. No.9 of 2021.
Decision
25. As such, this revision is disposed of finally. Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Personal Assistant Reason: Authentication Location: OHC, CUTTACK Date: 25-Jul-2025 15:47:41 ( A.C. Behera ) Judge Orissa High Court, Cuttack The 25th of July, 2025/ Jagabandhu, P.A. Page 15 of 15