Orissa High Court
Snehalata Routray And Another vs Tilotama Routray And Others on 30 August, 2023
Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 31-Aug-2023 19:43:12
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 981 OF 2023
Snehalata Routray and another .... Petitioners
Mr. Sourav Suman Bhuyan, Advocate
-versus-
Tilotama Routray and others .... Opp. Parties
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 30.08.2023
01. 1. This matter is taken up through hybrid mode.
2. Order dated 21st August, 2023 (Annexure-6) passed by
learned District Judge, Cuttack in I.A. No.1 of 2023 (arising out
of R.F.A. No.95 of 2023) is under challenge in this CMP,
whereby learned appellate Court entertaining an application for
leave to pursue the appeal filed by the Petitioners directed to
issue notice to the Respondents for consideration of the said
application.
3. Mr. Bhuyan, learned counsel for the Petitioners relied
upon the case of Srikanta Tripathy -v- Dasarathi Tripathy and
others, reported in 2017 (I) OLR 1019, wherein at Paragraphs-
5,6 and 7, it is held as under:
"5. Two conditions must be satisfied for filing of
appeal against the judgment and decree of the learned
trial court viz., (1) the subject matter of appeal must be a
decree (2) a person is adversely affected by the decree.
Thus, the sine qua non for maintaining an appeal is that
only a party to the suit who is adversely affected by the
decree may file appeal. However, a person who is not a
party to the suit but then adversely affected by the decree
may prefer appeal with the leave of the Court.
6. The Apex Court in Adi. Pherozshah Gandhi vrs.
H.M.Seervai, Advocate General of Maharashtra,
Bombay, A.I.R. 1971 SC 385 held thus:-
Signature Not Verified // 2 //
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 31-Aug-2023 19:43:12
"Generally speaking, a person can be said be
aggrieved by an order which is to his detriment,
pecuniary or otherwise or causes him some prejudice in
some form or other. A person who is not a party to a
litigation has no right to appeal merely because the
judgment or order contains some adverse remarks
against him. But it has been held in a number of cases
that a person who is not a party to suit may prefer an
appeal with the leave of the appellate court and such
leave would not be refused where the judgment would be
binding on him under Explanation 6 to section 11 of the
Code of Civil Code of procedure."
7. Admittedly, the petitioner was not a party to the suit.
He claims to be the adopted son of Nishamani Tripathy.
According to the petitioner, he is aggrieved by the
judgment and decree of the learned trial court. While
deciding an application for grant of leave, the Court has
to be prima facie satisfied that as to whether the person
making application has been adversely affected by the
decree. But in the instant case, the learned appellate
court went further and rendered finding with regard to
the registered deed of acknowledgment of adoption. The
same cannot be. Since the petitioner has been adversely
affected by the judgment and decree, the order dated
20.10.2014 passed by the learned District Judge, Puri in
R.F.A.No.45 of 2008 is quashed. Leave is granted. The
learned appellate court shall hear the appeal on merit.
The petition is allowed. No costs."
4. It is his submission that while entertaining an application
for grant of leave to a party to file an appeal, learned appellate
Court should only consider as to whether a party would be
affected by the judgment, which is sought to be challenged in the
appeal. Thus, in such event, question of hearing of the
Respondents does not arise. It is his submission that the Court
should have followed the guidelines in the case of Srikanta
Tripathy (supra) and considered the application. The
respondents have nothing to say in the matter. If learned
appellate Court is prima facie satisfied that the Petitioner is
aggrieved by the judgment impugned, it can grant the leave to
Signature Not Verified // 3 //
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 31-Aug-2023 19:43:12
pursue the appeal. In the instant case, by issuing notice to the
Respondents (Opposite Parties herein), learned appellate Court
has not followed the due procedure of law. Hence, he prays for
setting aside the impugned order and to direct learned appellate
Court to grant leave to the Petitioners to pursue the appeal.
5. Considering the submission made by learned counsel for
the Petitioners and on perusal of the impugned order, it appears
that the Petitioners were not parties to the suit. They being
aggrieved by the judgment passed in the suit, filed R.F.A. No.95
of 2023. An application for leave to pursue the appeal was also
filed by the Petitioners. While entertaining an application for
grant of leave, learned appellate Court should have followed the
guidelines in the case of Srikanta Tripathy (supra). Grant of
leave is a matter between the Petitioner who seeks leave and the
Court. The party seeking leave to file/pursue the appeal must
satisfy the Court that the judgment and decree sought to be
challenged adversely affects it. This aspect was not taken into
consideration by learned appellate Court while entertaining the
petition for grant of leave.
6. In view of the above, the impugned order under
Annexure-6 is set aside and the matter is remitted to learned
District Judge, Cuttack for fresh consideration of the petition for
grant of leave to the Petitioners to pursue the appeal.
7. With the aforesaid observation and direction, this CMP is
disposed of.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
ms Judge
