Orissa High Court
FAO/457/2017 on 19 January, 2021
F.A.O. No.457 of 2017
04. 19.01.2021 Due to outbreak of COVID-19, this matter is taken
up through Video Conferencing.
Heard Mr. D.Mund, learned counsel for the
appellants, Mr. Alok Kumar Panda, learned counsel for
respondent no.14 and Mr. M.K. Mohapatra, learned
counsel for respondent nos.7 to 13.
None appears for the respondent nos.1 to 5
although they are represented through their counsel.
This appeal has been filed assailing the order dated
26.10.2017 (Annexure-5) passed by learned Additional
District Judge, Bhawanipatna in C.M.A. No.09 of 2014
(arising out of Title Appeal No.8/50 of 2002-2013),
whereby he rejected an application under Section 5 of the
Limitation Act, which was filed for condonation of delay
in filing a petition for restoration/re-admission of title
appeal.
Mr. Mund, learned counsel for the appellants
submits that Purusottam Pradhani along with others
have filed Title Appeal No.8/50 of 2002-2013 assailing
the judgment and decree dated 09.01.2002 passed by
learned Civil Judge (Junior Division), Bhawanipatna in
Title Suit No.42/59 of 1998-2000. The appellant No.1
therein, namely, Purusottam Pradhani, was looking after
the appeal but, to the misfortune of the appellants, he
died on 15.07.2012 leaving behind the present appellants
as his legal heirs. Since no petition for substitution of the
legal representatives of said Purusottam Pradhani was
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filed, the appeal was dismissed on 18.12.2013 for default
of the appellants. The present appellants came to know
about the same upon receipt of the notice in Execution
Case No. 1 of 2014 issued by learned Civil Judge (Senior
Division), Bhawanipatna on 25.11.2014. The dismissal of
the appeal was never communicated to them by their
conducting counsel for which they were kept in dark
about the dismissal of the appeal. However, upon receipt
of the notice in Execution Case No.1 of 2014, the
appellants filed C.M.A. No.9 of 14 under the provisions of
Order 9 Rule 4 read with Section 151 C.P.C. for
restoration of the appeal along with an application for
condonation of delay. Learned District Judge without
appreciating the materials from its proper perspective,
dismissed the petition for condonation of delay and
thereby dismissed the C.M.A. No.9 of 2014 vide order
dated 26.10.2017. Assailing the same, this appeal has
been filed.
Mr. Mund, learned counsel for the appellants
submits that since Purusottam Pradhani was looking
after the case, on his death, the appellants could not
know about the subsequent dates of the appeal and also
could not take steps in the appeal. The default of the
appellants was not intentional. Since the appellants are
interested to contest the appeal, they should be given an
opportunity subject to compliance of the conditions to be
fixed to the satisfaction of the Court. It is his submission
that the appellants have shown sufficient cause for their
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default in pursuing the appeal as well as filing the C.M.A.
after the statutory period. Learned Additional District
Judge has failed to appreciate the same and passed the
impugned order, which is not sustainable in the eyes of
law. Hence, he prays for setting aside the impugned order
and to readmit the appeal under Order XLI, Rule 19
C.P.C. for hearing.
Mr. Panda, learned counsel for respondent no.14
and Mr. Mohapatra, learned counsel for respondent nos.7
to 13 do not object to the restoration of the appeal. They
pray for setting aside the impugned order and for a
direction for early disposal of the appeal on merit.
Taking into consideration the submissions made by
learned counsel for the parties and on perusal of the
impugned order, it appears that after the death of
Purusottam Pradhani-appellant no.1 in the title appeal,
no step was taken for substitution for which learned
Additional District Judge had no other option than to
dismiss the title appeal for default vide his order dated
18.12.2013. It is also the case of the appellants that they
came to know about the dismissal of the appeal only after
receipt of the notice issued on 25.11.2014 in Execution
Case No.1 of 14. Although learned Additional District
Judge while adjudicating the appeal came to a conclusion
that the appellants have failed to show sufficient cause
for condonation of delay and to restore the appeal, it
appears that the contention of the appellants to the effect
that late Purusottam Pradhani was looking after the case
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is not disputed. It further appears that the death of said
Purusottam Pradhani on 15.07.2012 is also not disputed.
It is quite obvious that when late Purusottam Pradhani,
who was looking after the case died, the rest of the
appellants in title appeal could not take appropriate steps
within the statutory period for substitution. Be that as it
may, when the appellants are interested to pursue the
appeal and pray for early disposal of the same, this Court
feels it proper to give them an opportunity for the same
but subject to payment of adequate cost to the plaintiffs-
respondents, who are none other than the decree holders.
Accordingly, the impugned order dated 26.10.2017
passed by learned Additional District Judge,
Bhawanipatna in C.M.A. No.09 of 2014 (arising out of
Title Appeal No.8/50 of 2002-2013) is set aside. Learned
Additional District Judge, Bhawanipatna is directed to
readmit the appeal under Order XLI, Rule 19 C.P.C.
subject to payment of cost of Rs.10,000/- (Rupees ten
thousand) to the plaintiffs-respondents within a period of
fifteen days hence and produce a receipt to that effect
before learned Additional District Judge, Bhawanipatna.
On production of such receipt, learned Additional District
Judge, Bhawanipatna shall proceed with hearing of the
appeal, i.e. Title Appeal No.8/50 of 2002-2013 and make
an endeavour for disposal of the same as expeditiously as
possible preferably within a period of three months
therefrom giving opportunity of hearing to the parties
concerned.
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With the aforesaid observation and direction, this
FAO disposed of.
Authenticated copy of this order downloaded from
the website of this Court shall be treated at par with
certified copy in the manner prescribed in this Court's
Notice No.4587 dated 25.03.2020.
................................
jm K.R. MOHAPATRA,J.
