Orissa High Court
) Satya Narayan Mohanty vs ) Bijayalaxmi Mohanty And Another ..... ... on 2 April, 2024
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMAPL No.102 of 2013
1) Satya Narayan Mohanty ..... Petitioner
Represented By Adv. -
Mr. Suvashish Pattnaik
-versus-
1) Bijayalaxmi Mohanty and another ..... Opposite Parties
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA
ORDER
02.04.2024
Order No. Misc. Case No.88 of 2013
05. 1. This matter is taken up through Hybrid Arrangement
(Virtual/Physical Mode).
2. The above noted misc. case has been filed with a prayer
for condonation of delay in filing the CMAPL.
3. Learned counsel for the Petitioners submitted that R.F.A.
No.81 of 2004 was preferred by one Satyanarayan Mohanty
against the judgment and decree dated 23.12.2003 passed by the
learned 2nd Additional Civil Judge, Senior Division, Cuttack in T.S.
No.488/54 of 1982/90 thereby partly allowing the suit in favour of
the plaintiff/respondent No.1. He further contended that the suit
was filed by the Opposite Party No.1 with a prayer for partition of
the suit schedule property claiming half share therein and for
declaration that the recording of name of Opposite Party No.2 in
the remark column of Hal settlement of Record of Right in respect
of Plot No.429 is illegal. After disposal of the suit, the above
noted R.F.A. was filed by late Satyanarayan Mohanty before this
Court on 23.04.2004. It appears that the above noted R.F.A. was
never listed for admission. It was also contended that there was a
delay of 7 days in filing the above noted R.F.A. The R.F.A. was
listed on 28.11.2006 for removal of defects. This Court granted
two weeks' time peremptorily to remove the defects as pointed out
by the Stamp Reporter. It appears that the conducting advocate
for the appellant in the first appeal missed the cause list, as such,
he could not appear before the Court and, as such, there was no
occasion on the part of the counsel for the appellant to know
about the peremptory order which was passed in his absence.
Since the peremptory order was not complied with within the time
as permitted by this Court, by essence of time on 14.05.2007, the
appeal was dismissed due to non-compliance of the peremptory
order. Further, it appears that on 27.04.2007 a Misc. Case
bearing No.178 of 2007 was filed to recall the order dated
28.11.2006 along with Misc. Case No.179 of 2007 for condonation
of delay in filing the appeal. However, ignoring the aforesaid misc.
cases, the appeal was dismissed vide order dated 14.05.2007 of
the learned Deputy Registrar (Judicial) of this Court. When the
misc. cases were listed before the Bench on 22.07.2013 for
orders, at that point of time, it came to the knowledge of the
Petitioner No.1(a) to (e) that the appeal has been dismissed due
to non-prosecution. In addition to the aforesaid submission,
learned counsel for the Petitioner submitted that since the issue
involved in the first appeal deals with a valuable right of the
Petitioners over the property, in the event the Petitioners are not
provided the opportunity to contest the appeal on merits, then
they are likely to be seriously prejudiced and the Petitioners will
lose the valuable rights over the property.
4. Learned counsel for the Petitioner further contended that
the original appellant, namely, Late Satyanarayan Mohanty died
on 06.06.2012 and the present Petitioners are his legal heirs. It
was also contended that if there is any laches on the part of the
original appellant as well as the counsel appearing on behalf of
the original appellant before this Court, then considering that the
present Petitioners are the legal heirs of Late Satyanarayan
Mohanty, it was contended that unless the appeal is restored and
the Petitioners are allowed to contest the case, they will be
seriously prejudiced and their right over the property would be
taken away for all time to come. Since the appeal was
dismissed before even issuing the notice, there is no question of
providing any opportunity to the Opposite Parties/Respondents.
5. On a careful consideration of the factual background of the
case, this Court is of the considered view that the appeal has
been dismissed due to the negligence on the part of both the
counsel appearing for the original applicant as well as the original
appellant, namely Late Satyanarayan Mohanty, who died on
06.06.2012. It is also evident that there is a long delay in filing the
restoration application even such application was filed in the year
2013 and listed in the year 2024 for consideration of such
application. The aforesaid period of 6 years 201 days have been
calculated by taking into consideration the COVID-19 pandemic
period. In view of the judgment of the Hon'ble Supreme Court, the
COVID-19 pandemic period is to be excluded while calculating the
limitation. Accordingly, the delay would be around four years.
6. This Court, on a careful consideration of the surrounding
facts and circumstances and keeping in view the negligence on
the part of the original appellant and his counsel and further
keeping in view the fact that there is a long delay in filing the
restoration application, is of the considered view that such
misconduct cannot take away the rights of the Petitioners, who
are the legal heirs of the original appellant, over the property
involved in the first appeal. Moreover, this Court is of the view that
laches or delay, if any, can very well be compensated on payment
of cost.
7. In the aforesaid factual background, this Court deems it
proper to condone the delay of 6 year 201 days, as pointed out by
the Stamp Reporter, in filing the CMAPL subject to payment of
cost of Rs.4,000/- (Rupees four thousand) to the Utkal Gourav
Madhusudan Library Fund, Orissa High Court Bar Association within
seven days hence.
8. The I.A. is, accordingly, disposed of.
9. This is an application for restoration of the R.F.A. No.81 of
2004, which was dismissed due to non-compliance of peremptory
order passed on 28.11.2006.
10. On perusal of the record, it appears that no notice was
issued to the respondents.
11. In such view of the matter, no notice is also required to be
sent in the CMAPL.
12. Considering the grounds as has been discussed in the
Misc. Case No.88 of 2013, this Court is also inclined to allow the
CMAPL.
13. Accordingly, the CMAPL is allowed.
14. The R.F.A. No.81 of 2004 is restored to its file.
15. Registry is directed to list the R.F.A. No.81 of 2004 before
the appropriate Bench forthwith.
( A.K. Mohapatra)
Judge
Debasis
