Orissa High Court
Sofia Parvin And Others vs State Of Odisha And Others on 6 July, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.23409 of 2022
(Through Hybrid mode)
Sofia Parvin and others .... Petitioners
-versus-
State of Odisha and others .... Opposite Parties
Advocates appeared in this case:
For petitioner : Mr. Gopinath Mishra, Advocate
For opposite parties : Mr. A. K. Sharma, AGA
CORAM: JUSTICE ARINDAM SINHA
------------------------------------------------------------------------------------
Dates of hearing: 20.12.2022, 14.03.2023 and 06.07.2023
Judgment on: 06.07.2023
------------------------------------------------------------------------------------
1. Mr. Mishra, learned advocate appears on behalf of petitioners.
He submits, his clients are the sisters and brothers of the deceased.
Opposite party no.5 was married to the deceased but, thereafter,
divorced. Said opposite party can have no claim on estate of the
deceased. However, she had applied for legal heir certificate and
obtained it. When his client applied for legal heir certificate, there
// 2 //
was discovery and caused verification to be made. Legal heir
certificate of opposite party no.5 stood cancelled. Said opposite party
preferred appeal.
2. Mr. Mishra submits, his clients were respondent nos. 4 to 8 in
the appeal. The appeal was dismissed for default on 16th March, 2021
in presence of, inter alia, his clients. Appellant, without notice to his
clients made restoration application, which was allowed by impugned
order dated 10th August, 2021. On coming to know, his clients
brought it to notice of the Sub-Collector but by also impugned order
dated 21st June, 2022, the Sub-Collector said, inter alia, there was no
need for service of notice of the restoration petition to his clients.
3. The writ petition was heard on 20th December, 2022, when
interim order was made. On the same day the Sub-Collector disposed
of the appeal. In this way his clients have been deprived of
opportunity of hearing in the misc. case. His clients have challenged
the order of restoration and subsequent order dated 21st June, 2022
made in the appeal because the restoration was done behind back of
his clients and justification for it was given by said order dated 21st
June, 2022.
4. Mr. Sharma, learned advocate, Additional Government
Advocate appears on behalf of State and submits, affidavit dated 24th
// 3 //
March, 2023 has been filed by the Sub-Collector stating on oath that
the appeal was disposed of without intimation of the interim order.
5. Mr. Behera, learned advocate appears on behalf of opposite
party no.5 and submits, the appeal was itself disposed of on order
dated 20th December, 2022 restoring the matter to the Tahsildar
regarding cancellation of his client's legal heir certificate. Parties be
directed to appear before the Tahsildar for adjudication on the
controversy. Mr. Mishra in reply draws attention to the earlier order
dated 16th March, 2021 dismissing the appeal. He submits, there was
clear finding of wilful default on part of opposite party no.5. Yet no
opportunity was given to his clients to resist the restoration.
6. Text of order dated 16th March, 2021 made by the Sub-
Collector, dismissing the appeal is reproduced below.
" Neither the appellant nor her learned advocate are
present on repeated calls. Learned advocate for the
respondents No.4 to 8 and learned Govt. Pleader on
behalf of the respondents No.1 to 3 are present. Heard
the case. On perusal of the case record it is found that
the appellant remained absent and did not take any
step since 14/2/2020 till date. in the meantime
unnecessarily 13 adjournment dates have been passed
but the appellant did not turn up to pursue her case for
which it is presumed that the appellant is not interested
// 4 //
to proceed with her case. Hence, the case is dismissed
for continuous and wilful default of the appellant."
(emphasis supplied)
It is clear that the dismissal order was passed on reason of wilful
default by opposite party no.5. It was made in presence of
Government Pleader and petitioners. As such, law of procedure
required issuance of notice on the restoration application. The Sub-
Collector discharging adjudicatory function was all the more required
to observe principles of natural justice in taking away the right
accrued to petitioners on dismissal of the appeal, to allow them
opportunity of hearing. There is no dispute there was no direction to
give notice. On the contrary, the Sub-Collector, by also impugned
order dated 21st June, 2022 said there was no need for service of
notice of restoration. It appears, the Sub-Collector thereupon
proceeded to hear the appeal itself. It so happened that on 20th
December, 2022 the writ petition was taken up for hearing and before
the Sub-Collector, the appeal. Court accepts that the Sub-Collector
was not informed of interim order passed staying proceeding in the
appeal. The appeal stood disposed of by restoration of the matter to
the Tahsildar.
// 5 //
7. Petitioners' grievance is elsewhere. There was, as aforesaid, a
reason attributed for dismissal of the appeal. Inter alia, petitioners
were present or represented at the time the appeal was dismissed. In
the circumstances, they were entitled to notice of the restoration.
Furthermore, they had a right to be heard on merit of the reason for
dismissal. Instead, what has happened is, without petitioners having
that opportunity they were said to have been heard on merits of the
appeal itself.
8. By reason of subsequent events there is necessity to mould the
relief. Order dated 20th December, 2022 passed by the Sub-Collector
and earlier order dated 10th August, 2021 restoring the appeal are both
set aside and quashed.
9. The parties are relegated to the position, where they will be
heard on their cases for or against restoration of the appeal, in context
of reason given for the dismissal in aforesaid order dated 16th March,
2021. Parties or any of them will communicate this order to the Sub-
Collector for expeditious disposal of the restoration application.
10. The writ petition is disposed of.
Signature Not Verified
Digitally Signed
Signed by: PRASANT KUMAR SAHOO
Reason: Authentication (Arindam Sinha)
Location: ohc
Date: 06-Jul-2023 19:00:01 Judge
Prasant
