Jaladhara Mallik And Another vs Kamina Mallik
2023 Latest Caselaw 15311 Ori

Orissa High Court

Jaladhara Mallik And Another vs Kamina Mallik on 30 November, 2023

Author: B. P. Routray

Bench: B. P. Routray

Signature Not Verified                 IN THE HIGH COURT OF ORISSA AT CUTTACK
Digitally Signed
Signed by: CHITTA RANJAN BISWAL
Reason: Authentication
Location: Orissa High Court, Cuttack            F.A.O. No.109 of 2017
Date: 01-Dec-2023 13:17:53


                              Jaladhara Mallik and another             ....         Appellants
                                                                Mr.S.Ch. Puspalaka, Advocate



                                                          -versus-




                              Kamina Mallik                               ....       Respondent
                                                                     Mr.S.K.Mohanty, Advocate

                                         CORAM:
                                         SHRI JUSTICE B. P. ROUTRAY
                                                       ORDER

30.11.2023 Order No.

4. 1. The matter is taken up through hybrid mode.

2. Heard Mr.Puspalaka, learned counsel for the Appellants and Mr.Mohanty, learned counsel for the Respondent.

3. Present appeal is directed against the order dated 29.3.2017 of the learned Additional District Judge, Jajpur passed in C.M.A.No.3 of 2016 (arising out of RFA No.100 of 2008).

4. The Appellants are the Plaintiffs in the suit, which was dismissed by judgment and decree dated 4.11.2008. The same was challenged by the Plaintiffs in RFA No.100 of 2008 that came up for hearing on 14.1.2016. On the said date, learned Additional District Judge dismissed the RFA since no one turned up for hearing. Then CMA No.3 of 2016 was filed praying for restoration of the appeal. The CMA was contested and evidences were adduced from both sides. Ultimately, learned lower appellate court dismissed the CMA

stating that the Appellants have failed to convince the Court about

Signed by: CHITTA RANJAN existence BISWAL of sufficient cause for their non-appearance on the date Reason: Authentication Location: Orissa High Court, Cuttack Date: 01-Dec-2023 13:17:53fixed and in this regard learned appellate court disbelieved the medical evidence adduced from the side of the Appellants. The same is challenged in the present appeal.

5. It is seen that P.W.1 is Appellant No.1 and P.W.2 is the Doctor, who allegedly treated P.W.1 for his illness. According to the medical certificate adduced under Ext.1, Appellant No.1, who was looking after the appeal, was under treatment from 10.1.2016 to 17.1.2016 and was unable to move. This part of the evidence has been disbelieved by the lower appellate court.

6. It is settled that the parties should not be deprived of their substantial right granted under the statute in a mechanical manner. The provision for appeal being a statutory remedy granted to the aggrieved party, the question of limitation should be considered liberally. It would not be irrelevant to say here that for non- appearance of the Appellants on a single day, the appeal was dismissed for non-prosecution. As such, taking note of such background facts, in the opinion of this Court, the appeal is required to be restored to grant an opportunity of hearing to the parties for asserting their substantial right in the appeal.

7. Resultantly, the impugned order is set aside and the appeal is restored. RFA No.100 of 2008 is restored to file of the learned Additional District Judge, Jajpur and it is further directed that learned Court shall do well to dispose of the appeal on merits, as expeditiously as possible. The parties present before this Court are directed to appear before the learned Additional District Judge, Jajpur on 18th December 2023 along with a certified copy of this order.

8. The appeal is disposed of as allowed.

Signed by: CHITTA RANJAN BISWAL Reason: Authentication 9. Urgent certified copy of this order be granted on proper Location: Orissa High Court, Cuttack Date: 01-Dec-2023 13:17:53application.

( B.P. Routray) Judge

C.R.Biswal