Sri Jeetendra Beura vs Raj Kishore Rout And Others .... ...
2025 Latest Caselaw 1688 Ori

Orissa High Court

Sri Jeetendra Beura vs Raj Kishore Rout And Others .... ... on 25 July, 2025

                   IN THE HIGH COURT OF ORISSA AT CUTTACK

                                        CRP No.43 of 2023

                   (In the matter of an application under Section 115 of
                  the Code of Civil Procedure)

                  Sri Jeetendra Beura                   ....         Petitioner

                                            -versus-
                  Raj Kishore Rout and others           ....   Opposite Parties



                  Appeared in this case:-
                       For Petitioner       :          Mr. Sandipani Mishra,
                                                                   Advocate

                  For Opposite Parties      :    Mr. P.K. Rath, Sr. Advocate
                                                     assisted by Ms. S. Das,
                                                                    Advocate



                  CORAM:
                  JUSTICE A.C. BEHERA

                                          JUDGMENT

Date of hearing :04.07.2025/date of judgment: 25.07.2025

A.C. Behera, J. This revision under Section 115 of the C.P.C., 1908

has been filed by the petitioner against the Opposite Parties

praying for setting aside the impugned order dated

01.11.2023 passed in R.F.A. No.9 of 2021 under Section 5

of the Indian Limitation Act, 1963 (which was filed for

condonation of delay in preferring an appeal vide R.F.A. No.9 of 2021) by the learned District Judge, Khurda at

Bhubaneswar.

2. The petitioner in this revision is the Respondent No.1

in R.F.A. No.9 of 2021 pending in the court of the learned

District Judge, Khurda at Bhubaneswar. The Opposite

Party No.11 in this revision is the Respondent No.2 in that

R.F.A. No.9 of 2021 and the Opposite Party Nos.1 to 10 in

this revision are the appellants in R.F.A. No.9 of 2021.

3. The factual backgrounds of this revision, which

prompted the petitioner for filing of the same is that, the

petitioner in this revision instituted a suit vide C.S. No.1949

of 2016 against Kunjalata Sahoo @ Rout (predecessor of the

Opposite Party Nos.1 to 10 in this revision) praying for a

decree of specific performance of contract in respect of the

suit properties on the basis of a registered agreement to sell

and also for a decree of permanent injunction.

4. The said suit vide C.S. No.1949 of 2016 filed by the

petitioner/plaintiff was decreed ex parte on dated

19.05.2018 against Kunjalata Sahoo @ Rout(predecessor of

the Opposite Party Nos.1 to 10). Thereafter, the

petitioner(plaintiff) filed an execution case vide Execution

Case No.26 of 2018 in the court of the learned Civil

Judge(Sr. Division), Bhubaneswar to execute the decree

passed on dated 19.05.2018 in the suit vide C.S. No.1949 of

2016 against Kunjalata Sahoo @ Rout. As, that Kunjalata

Sahoo @ Rout had expired, then her legal heirs(Opposite

Party Nos.1 to 10) were substituted in her place in the said

Execution Case No.26 of 2018. The successors of Kunjalata

Sahoo @ Rout, i.e., Opposite Party Nos.1 to 10 filed I.A.

No.3 of 2021 and I.A. No.4 of 2021 in that Execution Case

No.26 of 2018 praying for dropping that execution case on

the ground that, the ex parte decree passed in C.S. No.1949

of 2016 against their predecessors is not executable,

because prior to the passing of the said decree on dated

27.11.2017, their predecessors, i.e., Kunjalata Sahoo @

Rout had already expired. For which, the decree passed in

the suit vide C.S. No.1949 of 2016 against their above

deceased predecessor is a nullity on the ground of passing

of the same against a dead man.

5. The executing court in Execution Case No.26 of 2018

rejected both the I.As. vide I.A. No.3 of 2021 and I.A. No.4 of

2021 of the successors of the deceased defendant in C.S.

No.1949 of 2016 on dated 21.07.2022. For which, the

successors of Kunjalata Sahoo @ Rout (Opposite Party

Nos.1 to 10 in this revision) challenged the same by filing

two civil revisions vide C.R.P. Nos.9 of 2022 and 10 of 2022

before the learned District Judge, Khurda at Bhubaneswar

and both the civil revisions were allowed. To which, the

petitioner/plaintiff challenged the same by filing CMP

Nos.295 of 2023 and 296 of 2023 before this Court and the

said CMPs are subjudice/pending in the High Court for

adjudication.

In the meantime, the successors of the deceased

defendant Kunjalata Sahoo @ Rout in the suit vide C.S.

No.1949 of 2016 filed first appeal vide RFA No.9 of 2021

under Section 96 of the C.P.C., 1908 in the court of the

learned District Judge, Khurda at Bhubaneswar challenging

the ex parte decree dated 19.05.2018 passed in the C.S.

No.1949 of 2016 by the learned Civil Judge(Sr. Division),

Bhubaneswar along with a petition under Section 5 of the

Indian Limitation Act, 1963 praying for condonation of

delay in filing that appeal vide RFA No.9 of 2021 on the

ground that, the judgment and decree in the suit vide C.S.

No.1949 of 2016 has been passed ex parte against their

deceased predecessor without their knowledge and due to

the affect of Covid-19 Pandemic during that period, they

could not prefer appeal in due time.

6. The plaintiff, in the suit vide C.S. No.1949 of 2016,

who was arrayed as Respondent No.1 in the 1st appeal vide

R.F.A. No.9 of 2021 objected to the aforesaid petition under

Section 5 of the Indian Limitation Act, 1963 of the

appellants stating that, as the appellants in the appeal had

filed I.A. No.3 of 2023 and I.A. No.4 of 2023 in the

Execution Case No.26 of 2018 and they had participated in

I.A. No.3 of 2023 and I.A. No.4 of 2023 as well as in CMP

Nos.295 and 296 of 2023, then at this juncture, it cannot

be said that, the delay in preferring the appeal vide R.F.A.

No.9 of 2021 by them(appellants) for setting aside the

judgment dated 19.05.2018 passed in C.S. No.1949 of 2016

was bonafide. For which, the petition under Section 5 of the

Indian Limitation Act, 1963 filed by the appellants in R.F.A.

No.9 of 2021 praying for condonation of delay of two years

ten months and two days cannot be allowed. Therefore,

their petition under Section 5 of the Indian Limitation Act,

1963 as well as the appeal vide R.F.A. No.9 of 2021 filed by

them (appellants) are liable to be rejected and dismissed.

7. After hearing from the learned counsels of both the

sides, the learned District Judge, Khurda at Bhubaneswar

allowed the petition under Section 5 of the Indian

Limitation Act, 1963 of the appellants in R.F.A. No.9 of

2021 on dated 01.11.2023 on contest and condoned the

delay in preferring the appeal by the appellants(Opposite

Party Nos.1 to 10 in this revision) subject to payment of

cost of Rs.3,000/-(rupees three thousand) by the appellants

to the Respondent No.1(plaintiff) assigning the reasons that,

"the court should adopt justice oriented approach in

matter concerning delay and not to strike down the appeal,

revision, etc. in a mechanical manner, because, it is the

settled position of law that either party be given opportunity

to stand their case in accordance with law."

8. On being aggrieved with the said order dated

01.11.2023 passed in R.F.A. No.9 of 2021 by the learned

District Judge, Khurda at Bhubaneswar in allowing the

petition under Section 5 of the Indian Limitation Act, 1963

of the appellants for condonation of delay, the Respondent

No.1 of that appeal(plaintiff in the suit vide C.S. No.1949 of

2016) challenged the same by filing this revision being the

petitioner against the appellants in R.F.A. No.9 of 2021

arraying them Opposite Party Nos.1 to 10.

9. I have already heard from the learned counsel for the

petitioner(Respondent No.1 in R.F.A. No.9 of 2021) and the

learned counsel for the Opposite Parties (appellants in

R.F.A. No.9 of 2021).

10. In order to assail the impugned order dated

01.11.2023 passed in RFA No.9 of 2021 by the learned

District Judge, Khurda at Bhubanswar, the learned counsel

for the petitioner/respondent no.1 relied upon the following

decision of the Apex Court:-

(i) Esha Bhattacharjee vrs. Managing Committee of Raghunathpur Nafar Academy and others :

reported in 2013 AIR SCW-6158.

11. In support of the impugned order, the learned Senior

Counsel for the Opposite Party Nos.1 to 10 relied upon the

following decisions:-

(i) Collector, Land Acquisition, Anantnag and another vrs. Mst Katiji and others : reported in (1987) 2 SCC-107 : (1987) ITR-471 : (1987) 66 STC-

228.

(ii) Inder Singh vrs. The State of Madhya Pradesh : reported in 2025 LiveLaw(SC)-339.

12. It is the undisputed case of the parties that, the ex

parte judgment and decree in the suit vide C.S. No.1949 of

2016 was passed on dated 19.05.2018.

The Opposite Party Nos.1 to 10 in this revision

preferred an appeal vide R.F.A. No.9 of 2021 as the

successors of the defendant in the suit vide C.S. No.1949 of

2016 challenging the judgment and decree passed in C.S.

No.1949 of 2016 on dated 22.04.2021 in delay of two years

ten months two days by filing a petition under Section 5 of

the Indian Limitation Act, 1963 with the appeal memo of

R.F.A. No.9 of 2021 praying for condonation of above delay

in filing the appeal vide R.F.A. No.9 of 2021.

13. Taking into account the affect of Covid-19 Pandemic,

Three Judges Bench of the Hon'ble Supreme Court of India,

passed judgment on dated 10.01.2022 in RE : Cognizance

for extension of limitation, and in the said judgment,

Hon'ble Supreme Court excluded the period since

15.03.2020 till 28.02.2022 from limitation clarifying that,

the said period shall not be counted as limitation in

preferring any case or an appeal.

As the period since the date of judgment in the suit

vide C.S No 1949 of 2016, i.e., since 19.05.2018 till filing of

the appeal, i.e., till 22.04.2021 is coming under the affected

period Covid-19 Pandemic, for which, in view of the

aforesaid judgment of the Apex Court in Suo Motu Writ

Petition(C) No.3 of 2020 passed on dated 10.01.2022, one

year one month and seven days, i.e., the period since

19.05.2018 till 22.04.2021 is to be excluded from the delay

of two years ten months and two days in preferring the

appeal vide RFA No.9 of 2021 for computation of the period

of limitation in preferring the said appeal.

14. So, after exclusion of one year one month and seven

days from the delay of two years ten months two days in

preferring the appeal vide RFA No.9 of 2021 by the

appellants, it is held that, there was actual delay of one

year nine months and seven days in preferring the appeal

vide R.F.A. No.9 of 2021 by the appellants.

15. The 1st appellate court has condoned the delay in the

impugned order dated 01.11.2023 in preferring the appeal

vide R.F.A. No.9 of 2021 by the appellants after taking into

account the materials on record in order to give an

opportunity of being heard to both the parties in the appeal

vide R.F.A. No.9 of 2021 on merit.

It is the settled propositions of law that,

"rights of the parties are to be adjudicated upon merits

of their controversies. The parties should not be thrown out

merely on technicalities. Law courts will lose its efficacy, if

they cannot possibly respond to the needs of the society.

Technicalities there might be many, but, the justice oriented

approach ought not to be thwarted on the basis of such

technicalities. Since technicality cannot and ought not to

outweigh the course of justice. Therefore, the courts always

be in favour of rendering substantial justice, rather than

technicalities. Even if, a party is negligent in defending the

suit or proceedings, still, other party can be compensated

through costs for no other reason, but only to allow both the

parties to have hearing of the case on merit for no other

reason, but, only in order to avoid the multiplicity of

litigations between the parties. Because, it is the duty of a

good Judge to try always to put an end to the litigation, but,

he should not allow to grow a suit out of a suit."

16. On this aspect, the propositions of law has already

been clarified in the ratio of the following decisions:-

(i) In a case between Ms. Grewal vrs. Deep Chand Sood, AIR 2001 (S.C) 3660, Harman Das Sethi and another vrs. Haridwar Development Authority : IV(2005) Civil Law Times-426(D.B) (Uttranchal), Nabha Gaushala Committee(Regd.) vrs. Narinder Singh and another: IV(2005) Civil Law Times-424(P&H), Yanaimal Thottam Trust vrs. B. Lakshmanan and another : IV(2005) Civil Law Times-347(Madras) that, law courts will lose their efficacy, if it cannot possibly respond to the needs of the society. Technicalities there might be many, but, the justice oriented approach ought not to be thwarted on the basis of such technicalities.

Since technicalities cannot and ought not to outweigh the course of justice.

(ii) In a case between State of Nagaland vrs. Lipok AO and others : reported in (2005) 3 SCC- 752--For condonation of delay, court must take justice-oriented approach, while considering an application for condoning delay, court in view of larger public interest should take lenient view in such situation and condone the delay, however, huge may be the delay and to have the case decided on merits. The court should decide the matters on merit, unless the case is hopelessly without merit.

(iii) In a case between Inder Singh vrs. The State of Madhya Prdesh : reported in 2025(2) Civil Court Cases(S.C.)-772--That, delay cannot be condoned without sufficient cause. However, if in a particular case, the merits have to be examined, it should not be scuttled merely on the basis of limitation. Held, second appeal deserves to be

heard, contested and decided on merits. Delay condoned subject to cost.

17. The purpose of enactment and object of the C.P.C.,

1908 is really Rules of natural justice. Its purpose is to

enable both the parties to get hearing of the case on merit.

18. On this aspect, the propositions of law has already

been clarified by the Apex Court in the ratio of the following

decisions:-

(i) In a case between Sumit Bai and others vrs.

Paras Finance Company Registered Partnership firm Beawer(Raj.) through Mankanwar(SMT) W/o Parasmal Chordia(dead) and others : reported in IV(2007) Civil Law Times-37(S.C.) (Para-8) that, the purpose of enactment and object of the Civil Procedure Code--Civil Procedure Code is really rules of natural justice. Its purpose is to enable both the parties to get a hearing.

(ii) In a case between Alka Gupta vrs. Narender Kumar Gupta : reported in (2010) 10 SCC-141 that, the Code of Civil Procedure is nothing but an exhaustive compilation-cum-enumeration of the principles of natural justice with reference to a proceeding in a court of law.

(iii) In a case between Robin Thappa vrs. Rohit Dora : reported in 2019(II) OJR(S.C.)-557(Para-8) that, a litigation is based on adjudication on the merits of the contentions of the parties. Litigation should not be terminated by default, either of the plaintiff or the defendant. The cause of justice does require that, as far as possible, adjudication of litigation be done on merits.

19. Here, in this matter at hand, when the Opposite Party

Nos.1 to 10 in this revision being the appellants have

preferred an appeal vide R.F.A. No.9 of 2021 in delay of one

year nine months twenty seven days as clarified above

praying for setting aside an ex parte judgment and decree

passed against their deceased predecessor Kunjalata Sahoo

@ Rout in the suit vide C.S. No.1949 of 2016 and when,

the appellate court has condoned the said delay as per the

impugned order dated 01.11.2023 subject to payment of

cost of Rs.3,000/-(rupees three thousand) in order to give

opportunity to both the parties to get hearing of the appeal

vide R.F.A. No.9 of 2021 on merit and when, the Opposite

Parties (appellants in R.F.A. No.9 of 2021) are eagerly

interested to contest the said appeal vide R.F.A. No.9 of

2021 on merit, then, at this juncture, by applying the

principles of law clarified in the ratio of the aforesaid

decisions referred in Paragraph Nos.16 and 18 along with

decisions relied upon by the learned counsels of the both

the sides indicated in Paragraph Nos.10 and 11 of this

judgment, it is held that, the interest of justice shall bestly

be served, if the judgment in this revision will be passed

without interfering with the impugned order dated

01.11.2023 passed in R.F.A. No.9 of 2021 concerning the

condonation of delay in preferring the appeal by the

appellants (Opposite Party Nos.1 to 10), but, interfering

with the payment of amount towards cost for condonation

of such delay enhancing the cost amount from Rs.3,000/-

(rupees three thousand) to Rs.10,000/-(rupees ten

thousand).

20. Therefore, on the basis of the aforesaid findings and

observations, this revision filed by the petitioner(plaintiff) is

allowed in part on contest.

21. The impugned order passed on dated 01.11.2023 in

RFA No.9 of 2021 by the learned District Judge, Khurda at

Bhubaneswar allowing the petition under Section 5 of the

Indian Limitation Act, 1963 for condonation of delay is

confirmed, subject to payment of cost of Rs.10,000/-(rupees

ten thousand) only modifying / enhancing the imposed cost

amount from Rs.3,000/-(rupees three thousand) to

Rs.10,000/-(rupees ten thousand).

22. The parties in this revision are directed to appear

before the learned District Judge, Khurda at Bhubaneswar

in R.F.A. No.9 of 2021 on dated 11.08.2025 for the purpose

of receiving the directions of the learned District Judge,

Khurda at Bhubaneswar as to further proceedings of that

R.F.A. No.9 of 2021 and the appellants of the said R.F.A.

No.9 of 2021 ( Opposite Party Nos.1 to 10 in this revision)

are directed to pay the aforesaid cost, i.e., Rs.10,000/-

(rupees ten thousand) to the Respondent No.1 of that R.F.A.

No.9 of 2021(plaintiff in the suit) within a week since

11.08.2025 positively.

23. The Learned District Judge, Khurda at Bhubaneswar

shall take it's best endeavor to dispose of the appeal vide

R.F.A. No.9 of 2021 pending before him within four months

since 11.08.2025.

24. Registry is directed to communicate a copy this

judgment immediately to the District Judge, Khurda at

Bhubaneswar in reference to R.F.A. No.9 of 2021.

25. As such, this revision is disposed of finally.

( A.C. Behera )

Judge

BEHERAHigh Court, Cuttack Designation: Personal Assistant th Reason: Authentication The 25 of July, 2025/ Jagabandhu, P.A. Location: OHC, CUTTACK Date: 25-Jul-2025 15:47:41