Orissa High Court
State Of Odisha & Another vs Bhaskar Dutta on 1 November, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No.309 of 2019
State of Odisha & Another .... Appellants
Mr. Gajendra Nath Raut, ASC
-versus-
Bhaskar Dutta .... Respondents
Miss A. Egarwal, Advocate
CORAM:
MR. JUSTICE D.DASH
ORDER
01.11.2021
Order No. I.A. No. 861 of 2019
4. 1. This matter is taken up through hybrid arrangement
(virtual/physical mode).
2. This application under section 5 of the Limitation Act
for condonation of delay in filing the Second Appeal.
3. The State-Appellants having been unsuccessful in the
First Appeal i.e. RFA No. 42 of 2017 in the court of learned
District Judge, Bhadrak which had been filed challenging the
judgment and decree passed by the learned Civil Judge (Senior
Division), Bhadrak in T.S. No. 11 of 1998 wherein the suit filed
by the Respondent as Plaintiff had been decreed declaring him
to have acquired the occupancy right over the land measuring
Ac.4.40 decimals, the Memorandum of Appeal as against the
order dated 19.9.2018 passed by the First Appellate Court in
RFA No. 42 of 2017 presented before this court on 1.11.2019.
Thus there being delay of 319 days in filing the Appeal, prayer
for condonation of delay has been advanced.
// 2 //
4. Learned Additional Standing Counsel for the
Appellants submits that the result of the First Appeal was not
known of the Govt. officials at the District level who are
concerned with the litigation and for the first time, information
to that effect being received sent from the office of the
Advocate General being known while dealing with W.P.(C)
No. 15188 of 2019, the matter took the move and finally this
Appeal has been filed. He submits that the delay here is
because of communication gap between the office of the Govt.
Pleader and the Govt. Officials concerned.
In the view of all the above and further placing that here
the litigations involve a huge chunk of immovable property
measuring Ac.4.40 decimals, he urges for condonation of delay
as according to him said inaction cannot be taken to be
intentional or deliberate.
5. Learned counsel for the Respondent opposes the move.
According to her, the First Appeal had been filed by the State
and therefore to say that the Officials of the State had no
information about the result of the said First Appeal is not
acceptable. She further submits that when that order has been
passed way back on 19.9.2018, just in order to save the
situation, the blame being placed on the shoulder of the office
of the Govt. Pleader, the same is projected as the sufficient
cause as to have prevented the Appellant from filing the Appeal
in time.
6. Keeping in view the submission made; the averments
taken in the application as also the objection being perused; it is
seen that the First Appeal has been dismissed on the ground of
// 3 //
limitation when the First Appellate Court has refused to
condone the delay in presenting the Memorandum of Appeal
challenging the judgment and decree passed by the Trial Court
within the time prescribed. It has been stated in the petition that
such order of rejection of the Memorandum of the First Appeal
had not been informed by the Govt. Pleader to the concerned
Officials as required for further action being taken in that
regard. That Writ Application had been filed by the Respondent
and copy of the said application being served upon the Govt.
Counsel in the High Court; information was sent to the
concerned Officials. The facts and circumstances do not
however indicate that there was any deliberate or intentional
inaction on the part of the State Officials at in the District level
in causing the delay in filing the Second Appeal. Therefore, this
Court is not in a position to say that the explanations offered for
the delay are not acceptable.
8. In view of the aforesaid, this Court is inclined to
condone the delay in filing the Second Appeal subject to
payment of cost of Rs.5,000/- to be paid to the learned counsel
for the Respondent within a period of six weeks hence.
(D.Dash)
Judge
ORDER
01.11.2021
Order No. RSA No.309 of 2019
5. 1. List this matter for hearing on admission after six
weeks.
(D.Dash)
Judge
Aks
