Orissa High Court
State Of Odisha vs Gurudev Singh on 1 March, 2024
Author: D.Dash
Bench: D.Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
R.S.A. No.80 of 2022
In the matter of an Appeal under Section 100 of the Code of Civil
Procedure, 1908 assailing an order dated 8th April, 2021 passed by
the learned 1st Additional District Judge, Rourkela in R.F.A. No.05
of 2020.
----
State of Odisha, represented .... Appellants
through the Collector,
Sundergarh & Another
-versus-
Gurudev Singh .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellants - Mr.G.N.Rout,
Additional Standing Counsel
For Respondent - M/s.S.P. Mishra, B.C.Mishra,
S.G. Parija, B.K. Sinha,
P.K. Jena & S. Panda,
(Advocates)
CORAM:
MR. JUSTICE D.DASH
Date of Hearing : 20.02.2024 : Date of Judgment:01.03.2024
D.Dash,J. The Appellants, by filing this Appeal under Section 100 of
the Code of Civil Procedure, 1908 (for short, 'the Code'), have
assailed an order dated 8th April, 2021 passed by the learned 1st
Additional District Judge, Rourkela in R.F.A. No.05 of 2020.
The father of the present Respondent, as the Plaintiff, had
filed the suit, i.e., Title Suit No.33 of 1998 in the Court of the
learned Civil Judge (Senior Division), Rourkela. The suit was
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decreed ex parte in favour of the father of the Respondent
(Plaintiff). The Appellants, having suffered from the judgment
and decree passed by the Trial Court, filed the Appeal after the
delay of 7134 days (19 years 6 months and 19 days). For the said
delay, with the Memorandum of Appeal, the Appellants had filed
an application under section 5 o the Limitation Act, which has
been rejected by the impugned order.
2. The Appeal has been admitted to answer the following
substantial question of law:-
"Whether the First Appellate Court is right in refusing to
condone the delay in filing the Appeal under section 96 of
the Code of Civil Procedure, by these Appellants
(Defendants) after 7134 days."
3. Mr.G.N.Rout, learned Additional Standing Counsel for the
Appellants submitted that the Appellants had no knowledge
about said ex parte judgment and decree and, therefore, the delay
has occasioned. According to him, the delay was not at all
intentional or deliberate. He further submitted that the learned
Additional Government Pleader, who was representing the State
before the Trial Court, having been disengaged by the
Government, he did not inform about the suit. He further
submitted that the property in question, being a piece of valuable
public property, the First Appellate Court ought to have liberally
viewed the matter by condoning the delay for hearing the Appeal
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on merit. He submitted that the approach of the First Appellate
Court ought not to have been so rigid and pedantic.
4. Mr.Sidhartha Prasad Mishra, learned counsel for the
Respondent submitted that the delay in the present case is for
7134 days (19 years 6 months and 19 days) and in that view of the
matter, for all these years, the Respondent, having remained
armed with the decree in his favour, since valuable right has
accrued in his favour and crystallized the approach of the First
Appellate Court, can in no way be found fault with. He
submitted that although in such matters of condonation of delay,
the Courts are required to take a liberal view in order to see that
the litigation is not disposed of on technically but decided on
merit, the present case is not the one, which, however, warrants
such an approach.
5. Keeping in view the submissions made, I have carefully
read the order passed by the First Appellate Court as also the
judgment passed by the Trial Court.
6. The Respondent's father, as the Plaintiff, had filed the suit
for declaration of right, title and interest over the suit land as also
the order passed in the Encroachment Case numbered as
Encroachment Case No.1161 of 1994 as illegal and not binding
with the consequential prayer for permanent injunction against
the Defendants. The present Appellants (Defendants) had not
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contested the suit. No evidence had been led. When the suit was
disposed of by the judgment dated 03.05.2000 followed by the
decree dated 21.06.2000, the First Appeal has been filed after
lapse of 7134 days (19 years 6 months and 19 days).
It is stated that the learned Additional Government Pleader,
who was representing the State and looking after the case, having
been disengaged, no such information came to the Appellants
about the progress and disposal of the case and, therefore, the
Appellants remained at dark and having come to know about the
result when the Respondent filed a writ petition for mutation of
the suit land in his favour, the result of the suit could be known.
The Appellants, as it appears, were noticed in the said suit. The
learned Additional Government Pleader, having appeared before
the Trial Court, had given the undertaking to file the
vakalatnama and written statement, but thereafter as no steps
were taken, the Trial Court had to proceed with ex parte hearing
and has disposed of the suit. The ex parte, hearing as it appears
on record, has also not been made in a hot haste. Several dates
have been fixed for the purpose and when it was finally posted to
22.04.1999. The Appellants have filed the written statement with a
petition to set aside the said ex parte order, that been done on
11.05.1999. The issues were settled. But thereafter the Appellants
did not take any step. This, being the situation, in view of the
conduct of the Appellants, as the Defendants, before the Trial
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Court, the Appeal has been filed 7134 days (19 years 6 months
and 19 days). The explanation given do not at all appear to be
plausible and rather in my considered view, is unacceptable. Such
a long period, having passed from the date of decree, which has
been challenged in the First Appeal, a valuable right has accrued
in favour of the Respondent (Plaintiff), and it has held the field
for more than 19½ years. The First Appellate Court, in my
considered view, therefore, has committed no error in finding no
sufficient cause to have been shown by the Appellants for
condonation of delay of 7134 days (19 years 6 months and 19
days).
7. For all these aforesaid, the substantial question of law is
answered against the Appellants (Defendants), which in turn
leads to confirm the order dated 8th April, 2021 passed by the
learned 1st Additional District Judge, Rourkela in R.F.A. No.05 of
2020.
8. Resultantly, the Appeal stands dismissed. No order as to
cost.
(D. Dash),
Judge
REGISTRAR-CUM-SR. SECRETARY
Location: HIGH COURT OF ORISSA : CUTTACK
Date: 05-Mar-2024 13:53:50
