Orissa High Court

Purnendu Panigrahi & Others vs Smt. Debmani Atha (Dead) & Another on 10 March, 2025

                 ORISSA HIGH COURT : CUTTACK




                      CMAPL No.67 of 2024

An application under Order 41, Rule 19 of the CPC read with
  Chapter-VIII Rule 30 of Orissa High Court Rules, 1948.



                                ***

     Purnendu Panigrahi & Others
                               ...                      Petitioners.

                                 -VERSUS-

  Smt. Debmani Atha (dead) & Another
                              ...                 Opposite Parties.



Counsel appeared for the parties:

For the Petitioners           : Mr. D. Mohapatra, Sr. Advocate.
                                Assisted by Mr. P.K. Singhdeo, Adv.

For the Opposite Parties      : Mr. U.C. Patnaik, Advocate

P R E S E N T:

                    HONOURABLE
        MR. JUSTICE ANANDA CHANDRA BEHERA



Date of Hearing: 21.01.2025      ::   Date of Judgment : 10.03.2025
CMAPL No.67 of 2024                                     Page 1 of 10
                               J UDGMENT

ANANDA CHANDRA BEHERA, J.--

       1.   This CMAPL has been filed by the petitioners (those were the

       appellants in the Regular Second Appeal vide R.S.A. No.41 of

       2011) against the Opposite Parties (those were the respondents in

       the Regular Second Appeal vide R.S.A. No.41 of 2011) praying for

       readmission of the R.S.A. No.41 of 2011 after setting aside its

       dismissal order passed on dated 05.10.2023.

       2.   According to the petitioners, they (petitioners along with

       Bimelndu Panigrahi) were the appellants in the R.S.A. No.41 of

       2011 and the said Bimelndu Panigrahi was the appellant No.3 in

       that R.S.A.

            He (appellant No.3 Bimelndu Panigrahi) was looking after

       that R.S.A. on behalf of other appellants. He (appellant No.3-

       Bimelndu Panigrahi) expired on 16.06.2021 and unfortunately,

       their engaged learned Sr. Counsel Mr. J.M. Mohanty in R.S.A.

       No.41 of 2011 also expired.

             The matter relating to the death of their engaged learned

       Sr. Counsel was not known to the petitioners. When on dated

       05.10.2023, the R.S.A. No.41 of 2011 of the petitioners was fixed

       CMAPL No.67 of 2024                                Page 2 of 10
 for hearing, but, due to the death of the appellant No.3 (who was

looking after that appeal) and also due to the death of their

engaged learned Sr. Counsel Mr. J.M. Mohanty, none of the

appellants of R.S.A. No.41 of 2011 including the counsel for the

petitioners/appellants could not remain present in the court on

that date i.e. on 05.10.2023, for which, R.S.A. No.41 of 2011 of

the petitioners was dismissed for their default.

3.   The above default of the petitioners (appellants in that

R.S.A. No.41 of 2011) was neither deliberate nor intentional, but

on account of the above unfortunate incidents as stated above,

they (petitioners) could not remain present in the Court on that

day i.e. on 05.10.2023 and the aforesaid dismissal order of the

R.S.A. No.41 of 2011 on dated 05.10.2023 was also not known to

the petitioners. They (petitioners) came to know about the same

for the first time on dated 06.03.2024 from the staffs in the office

of their engaged deceased learned Sr. Counsel J.M.Mohanty.

     So, the petitioners filed this CMAPL praying for setting aside

the dismissal Order dated 05.10.2023 passed in R.S.A. No.41 of

2011 and to restore the same to its original position as it was on

dated 05.10.2023 prior to its dismissal and to fix that Second


CMAPL No.67 of 2024                                  Page 3 of 10
 Appeal for its hearing on merit or else, they (petitioners) shall be

prejudiced seriously and shall also sustain irreparable loss.

Because, they (petitioners) have vital interest in the disputed

properties involved in the R.S.A. No.41 of 2011 and they

(petitioners) have also every chance of success in that R.S.A.

No.41 of 2011 after its hearing on merit.

4.   Having been noticed from the Court, the Opposite Parties

(respondents in R.S.A. No.41 of 2011 ) filed their objection

denying the averments made by the petitioners in the CMAPL

stating that, the petitioners have not described in detail in their

petition, from which particular staff in the office of their learned

Sr. Counsel, they (petitioners) came to know about the dismissal

of the R.S.A. No.41 of 2011 and the petitioners have filed this

CMAPL unnecessarily only in order to protract the litigation and

to debar the Opp. Parties from getting the fruits of the decree

passed in their favour. It was the duty of the petitioners to keep

track over their appeal, but not to leave the same upon the mercy

of their engaged counsel and it was also the duty of the

petitioners to remain in touch with their engaged counsels

during the pendency of the appeal. The present CMAPL of the


CMAPL No.67 of 2024                                  Page 4 of 10
 petitioners has not fulfilled the criterias indicated in Order 41

Rule, Rule 19 of the CPC, 1908 for readmission of the R.S.A.

Because, the petitioners have not given sufficient cause and

reason for their non-appearance and the circumstance, which

prevented them from coming to the Court on dated 05.10.2023.

For which, the CMAPL filed by the petitioners is liable to be

dismissed.

5.   It appears from the records of R.S.A. No.41 of 2011 that,

R.S.A. No.41 of 2011 was filed by the petitioners as appellants on

dated 02.02.2011 and the same was admitted on dated

24.04.2012. Since 24.04.2012 till 14.09.2023, the said R.S.A.

was not listed.

6.   On the date of listing of R.S.A. No.41 of 2011 on

05.10.2023, none appeared from the side of the appellants. For

which, the    R.S.A. was dismissed     for   the default of the

appellants/petitioners.

     The order sheets in R.S.A. No.41 of 2011 show that, there

was delay of more than 10 years in listing the R.S.A. No.41 of

2011 since 24.04.2012. After ten years, the same was listed.




CMAPL No.67 of 2024                                 Page 5 of 10
 7.   On this aspect, the propositions of law has already been

clarified by the Apex Court in the ratio of the following decision:

          I.   In   a   case    between      Perumon    Bhagvathy
               Devaswom Perinadu Village Vs. Bhargaviamma
               (dead) by LRs & Others reported in (2008) 8 SCC
               321 "Where an appeal is admitted by the High
               Court and is not expected to be listed for final
               hearing for a few years, an appellant is not expected
               to visit the court or his lawyer every few weeks to
               ascertain the position nor keep checking whether the
               contesting respondent is alive. He merely awaits the
               call or information from his counsel about the listing
               of the appeal." (Para No.8)
8.   In view of the above principles of law enunciated by the

Apex Court, when 10 years after admission of the R.S.A. No.41 of

2011, the same was listed, then, in view of the principles of law

enunciated by the Apex Court in the ratio of the aforesaid

decision, it is natural and obvious for the appellants to expect for

a call or information from their counsel about the next date of

listing of their appeal.

     In this matter at hand, unfortunately, the engaged learned

Sr. Counsel of the appellants had expired before listing of the

R.S.A. No.41 of 2011 on 05.10.2023 after its admission. For

which, non-getting of information about the further courses of


CMAPL No.67 of 2024                                           Page 6 of 10
 action of the appeal on account of death of their Sr. Counsel

cannot be considered as a deliberate and willful fault/defect of

the appellants to prosecute their appeal.

9.   It appears from the CMAPL filed by the petitioners that, the

petitioners are eagerly interested to contest the R.S.A No.41 of

2011 on merit after setting aside of the dismissal order passed in

the appeal in order to establish their civil rights over the suit

properties.

     On this aspect the propositions of law has already been

clarified by the Hon'ble Courts and Apex Court in the ratio of the

following decisions.

       I.   In a case between Sumtibai & others vs. Paras
            Finance Co. Mankanwar W/o Parasmal Chordia
            (D)& Ors. (Para No.8) reported in AIR 2007 (SC) 3166
            "The object of Civil Procedure Code is really the rules of
            natural justice. Its purpose is to enable both parties to
            get a hearing."
      II.   In a case between Rajendra Kumar Vs. Smt.
            Managala Devi reported in 2024 (3) Civ.C.C. 378
            (Raj.) that, "Dismissal of suit for non-prosecution would
            lead to curtail civil rights of a litigant forever. For which,
            the suit restored subject to payment of cost."
     III.     In   a   case   between    Esha     Bhattacharjee       Vs.
            Managing      Committee      of   Raghunathpur         Nafar
            Academy & Others reported in (2013) 12 SCC 649

CMAPL No.67 of 2024                                               Page 7 of 10
            "Substantial justice being paramount and pivotal, the
           technical considerations should not be given undue and
           uncalled for emphasis." (Para No.8)
     IV.   In a case between Rakesh Kumar Jain Vs. Zulfkar
           Ali reported in Civ.L.J. 384 (Allh.) "Rules of limitation
           are not meant to destroy the rights of parties.
           Substantive rights of the parties are not to be defeated
           only on the ground of delay."
10. When after admission of the R.S.A. No.41 of 2011 filed by

the petitioners on dated 24.04.2012, the said appeal was not

listed for more than 10 years and when that R.S.A. of the

petitioners was dismissed for their non-appearance due to non-

getting of information from their engaged learned Sr. Counsel

prior to its listing on account of death of their learned Senior

Counsel and when the petitioners are eagerly interested to

establish their civil rights in R.S.A. No.41 of 2011 after its

restoration and to get opportunity of being heard on merit and

when the dismissal order passed in R.S.A. No.41 of 2011 has led

to curtail their civil rights forever and when it is the duty of the

Court to enable both the parties to get hearing of the appeal on

merit, then, at this juncture, by applying the above principles of

law enunciated in the ratio of the aforesaid decisions of the

Hon'ble Courts and Apex Court to this CMAPL at hand, it is held

CMAPL No.67 of 2024                                          Page 8 of 10
 that, the ends of justice shall bestly be served if the dismissal

order dated 05.10.2023 passed in R.S.A. No.41 of 2011 shall be

set aside subject to payment of cost by the petitioners to the

Opposite Parties compensating the losses of the Opposite Parties

for the delay in hearing of the R.S.A. No.41 of 2011 for the above

reasons.

11. Hence ordered.

                          ORDER

12. The CMAPL under Order 41, Rule 19 of the CPC, 1908 filed

by the petitioners against the Opposite Parties is allowed on

contest.

13. The dismissal Order dated 05.10.2023 passed in R.S.A.

No.41 of 2011 is set aside subject to payment of cost of

Rs.10,000/- (rupees ten thousand) by the petitioners to the

Opposite Parties/respondents through their learned Counsel

within a period of two weeks from the date of passing of this

Order.

14. It is made clear here that, only after submission of an

acknowledgment receipt regarding the payment of the above cost

by the petitioners to the Opposite Parties within the stipulated