[Cites 3, Cited by 0]
Orissa High Court
M/S Janata Associations vs Sushil Kumar Mohanty @ Sushil ..... ... on 21 January, 2026
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.1757 of 2025
M/s Janata Associations, Keonjhar ..... Petitioner
Represented by Adv. -
Mr. Amit Prasad Bose,
Senior Advocate
-versus-
Sushil Kumar Mohanty @ Sushil ..... Opposite Party
Chandra Mohanty
Represented by Adv. -
Ms. Deepali Mohapatra
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA
ORDER
21.01.2026
Order No.
03. 1. This matter is taken up through Hybrid Arrangement
(Virtual /Physical Mode).
2. Heard Mr. Amit Prasad Bose, learned Senior Counsel
appearing for the Petitioner as well as Ms. Deepali Mohapatra,
learned counsel appearing for the Opposite Party. Perused the
CMP application as well as the prayer made therein.
3. By filing the present CMP application under Article 227
of the Constitution of India, the Petitioner-Respondent in RFA
No.14 of 2017, which is pending before the learned Additional
District Judge, Champua, has approached this Court
challenging the order dated 04.09.2025 whereby the learned
appellate court has allowed C.M.A. No.04 of 2024 without
initially condoning the delay in filing such application.
4. The factual background of the case, in brief, is that the
Opposite Party No.1 as Appellant filed R.F.A. No.14 of 2017
challenging the ex parte judgment and decree dated
24.07.2014. There was a delay in filing the said appeal. The
R.F.A was initially dismissed for non-prosecution vide order
dated 06.09.2022. Accordingly, the Opposite Party-Appellant
filed C.M.A No.4 of 2024 for restoration of the R.F.A with an
application for condonation of delay which was registered as
C.M.A No.04 of 2024. Learned appellate court, vide order
dated 04.09.2025, condoned the delay in filing C.M.A No.04
of 2024 and allowed the said C.M.A and, accordingly,
restored the R.F.A to file. Being aggrieved by such order, the
Petitioner-Respondent has approached this Court by filing the
present C.M.P application.
5. Mr. A.P. Bose, learned Senior Counsel appearing for the
Petitioner-Respondent, at the outset, contended that admittedly
there was a delay in presentation of the C.M.A application, as
would be evident from Annexure-3. He further submitted that
the learned appellate court should have first condone the delay
in presentation of the C.M.A application and thereafter he
should have taken up the application for restoration of the first
appeal.
6. In the present case, the learned appellate court has
disposed of the application for condonation of delay and the
application for restoration of the first appeal and disposed of
both the applications by a common order, the same was
objected to by the learned Senior Counsel appearing for the
Petitioner-Respondent.
7. Learned Senior Counsel appearing for the Petitioner-
Respondent argued that the procedure adopted by the learned
appellate court is unknown to law. Therefore, the impugned
order dated 04.09.2025 is unsustainable in law and, hence, the
same should be set aside.
8. Ms. Deepali Mahapatra, learned counsel appearing for
the Appellant-Opposite Party, on the other hand, contended
that the learned appellate court has not committed any
illegality in passing order dated 04.09.2025. She further
contended that the learned appellate court has not committed
any illegality in taking up both the applications
simultaneously and disposed of the same vide a common order
dated 04.09.2025. She further contended that there is no
procedure prescribed in law which provides that both these
applications are to be taken up and considered separately. In
such view of the matter, learned counsel for the Opposite
Party-Appellant submitted that the present C.M.P application
is devoid of merit and, accordingly, the same should be
dismissed.
9. Having hearing the learned counsels appearing for both
the sides and on a careful consideration of the submission
made by the respective counsels as well as on a close scrutiny
of the pleadings as well as the impugned order dated
04.09.2025, this Court observes that the appellate court took
up the application under Order-41 Rule-19 of C.P.C. along
with Section 5 of the Limitation Act for restoration of the first
appeal which was dismissed due to non-prosecution vide order
dated 06.09.2022. By virtue of the impugned order dated
04.09.2025, after considering the stand of the Opposite Party-
Appellant that due to negligence on the part of the previous
counsel the R.F.A was dismissed for non-prosecution and that
no information with regard to the posting date and dismissal of
the R.F.A was ever given to the Opposite Party-Appellant, the
learned appellate court went on to condone the delay in
presentation of the C.M.A application filed under Order-41
Rule-19 of the C.P.C. Although no specific order has been
passed dealing with the application under Section 5 of the
Limitation Act and condoning the delay specifically, however,
the learned appellate court, laying emphasis on the provision
contained in Order-41 Rule-19 of C.P.C. and upon being
satisfied by the factual background of the case, has passed an
order restoring the first appeal to file.
10. On a careful analysis of the impugned order dated
04.09.2025, this Court is of the considered view that the
learned appellate court should have dealt with the application
under Section 5 of the Limitation Act separately and a
separate order should have been passed condoning the delay in
presentation of the C.M.A application. On the contrary, the
appellate court has passed a composite order allowing the
application under Order-41 Rule-19 of the CPC for restoration
of the appeal. Thus, this Court is of the view that such an
order is an irregular order, which is not in conformity with
law. However, upon hearing the learned counsel appearing
for both the sides, and on a careful examination of the records
as well as the background facts, this Court is of the considered
view that the Opposite Party-Appellant has satisfied the
learned appellate court with regard to his absence from the
court. Such satisfaction is borne out from the record.
Moreover, the appeal preferred by the Opposite Party-
Petitioner being a statutory appeal, such right cannot be taken
away by adopting a hyper technical approach. Moreover, upon
satisfaction with regard to the non-appearance of the Opposite
Party-Appellant before the appellate court, the learned
appellate court has exercised its jurisdiction under Order-41
Rule-19 of the C.P.C. Such exercise of the power, according
to this Court, is in conformity with the larger interest of justice
and would serve the ends of justice.
11. Keeping in view the aforesaid analysis as well as the
factual and legal position, further taking note of the grounds
advanced by the Opposite Party-Appellant before the appellate
court, and in the interest of justice, this Court is not inclined to
interfere with the order dated 04.09.2025. Additionally, taking
into consideration the conduct of the Opposite Party-Appellant
before the appellate court, this Court is of the view that
Opposite Party-Appellant cannot be given an absolute clean
cheat. At the same time, the prejudice caused to the Petitioner-
Respondent can very well be compensated by imposing cost
on the Opposite Party-Appellant for his negligence in
prosecuting the appeal preferred by him before the appellate
court. Therefore, this Court, while declining to interfere with
the order dated 04.09.2025, deems it proper to modify the cost
imposed by the learned appellate court.
12. Hence, the impugned order dated 04.09.2025 is hereby
affirmed with a modification that the C.M.A application shall
stand allowed subject to Opposite Party-Appellant paying a
cost of Rs.5,000/- (Rupees five thousand) to the Petitioner-
Respondent instead of Rs.3,000/- (Rupees three thousand) as
has been directed by the learned appellate court.
13. Accordingly, the CMP stands disposed of.
Signed by: DEBASIS AECH Judge
Debasis
Location: ORISSA HIGH COURT
Date: 22-Jan-2026 16:02:11
