Orissa High Court
Hemant Kumar Mohanty And Others vs Anil Kumar Pattnaik And Others on 16 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP NO. 458 OF 2023
Hemant Kumar Mohanty and others .... Petitioners
Mr. S. Mantry, Advocate
-Versus-
Anil Kumar Pattnaik and others .... Opp. Parties
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 16.05.2023
1. 1. This matter is taken up through hybrid mode.
2. This CMP has been filed assailing the order dated 15th
March, 2023 passed by learned Additional District Judge,
Athagarh in CMA No. 1 of 2023 (arising out of RFA No.7 of
2016/RFA No.12 of 2016) rejecting an application for
readmission/restoration of the appeal.
3. Mr. Mantry, learned counsel for the Petitioners submits
that RFA No.7 of 2016 has been filed assailing the judgment and
decree dated 2nd November, 2015 and 9th November, 2015
respectively passed by learned Civil Judge (Senior Division),
Athagarh in C.S. No.73 of 2013. Some other appeals in RFA
Nos. 19, 21 and 28 of 2016 assailing the self-same judgment and
decree are also pending in the said Court. Initially, the appeal
was filed in the Court of learned District Judge, Cuttack and was
registered as RFA No. 7 of 2016. Subsequently, the appeal was
transferred to the Court of learned Additional District Judge,
Athagarh and is registered as RFA No.12 of 2016. During
pendency of the appeal, the Appellant No.1, namely, Sailabala
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Mohanty, died on 28th November, 2017 and her legal heirs,
namely, the Petitioners, have been substituted. Since no notice
was issued to the newly added legal heirs (Petitioners) after the
appeal was transferred to the Court of learned Additional District
Judge, Athagarh, they could not know about the developments in
the appeal. The Appellant No.2, who was looking after the
appeal, also could not take step in the matter. As such, the
appeal was dismissed on 30th August, 2017 due to non-removal
of defects. No notice whatsoever was issued to the Respondents
in the said appeal. It is his submission that Additional District
Judge, Athagarh holding that learned counsel for the Petitioners
was present in Court when the appeal was posted to 10th May,
2017, 5th July, 2017 and 1st August, 2017 dismissed the appeal
holding that the Petitioners had knowledge of transfer of the
appeal. Since the defects were not removed, the appeal was
dismissed for default. It is further submitted that the Petitioners
are ready and willing to remove the defects, if any, in the appeal
within a period of two weeks on reopening of the Court after the
ensuing summer vacation, if the RFA is restored to file.
4. In view of the above, more particularly taking into
consideration that some other appeals assailing the self-same
judgment and decree are pending in the said Court in RFA
Nos.19, 21 and 28 of 2016, this Court feels that a further
opportunity should be given to the Appellants to remove the
defects and contest the appeal.
5. Accordingly, this Court while setting aside the order
dated 30th August, 2017 as well as order dated 15th March, 2023
(Annexure-2) passed in CMA No.1 of 2013 disposes of the CMP
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by restoring the appeal to the file of learned Additional District
Judge, Athagarh subject to payment of cost of Rs.3,000/- to the
Local Bar Association within a period of one week from the date
of reopening of the Court after the ensuing summer vacation. If
the defects as pointed out in filing the appeal are not removed
within two weeks on reopening of the Court after the ensuing
summer vacation, the appeal shall stand dismissed and no further
prayer for readmission/restoration of the appeal shall be
considered.
6. With the aforesaid observation and direction, the CMP is
disposed of.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
bks Judge
Signature Not Verified
Digitally Signed
Signed by: BIJAY KUMAR SAHOO
Designation: Ex-Secretary
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 17-May-2023 11:02:31
