[Cites 5, Cited by 0]
Orissa High Court
Patet @ Patetlal Pradhan & vs Chhanda Charan Pradhan & on 12 March, 2026
IN THE HIGH COURT OF ORISSA AT CUTTACK
I.A. No.651 of 2025 arising out of R.S.A. No.229 of 2025
Patet @ Patetlal Pradhan & ..... Appellant
Others
Represented by Adv. -
Debasish Samal
-versus-
Chhanda Charan Pradhan & ..... Respondents
Others
Represented by Adv. -
CORAM:
MR. JUSTICE ANANDA CHANDRA BEHERA
ORDER
12.03.2026
Order No.
02. 1. This matter is taken up through hybrid mode.
2. This I.A. has been filed by the petitioners
(appellants in R.S.A. No.229 of 2025) under Section 5
of the Indian Limitation Act, 1963 praying for
condonation of delay in preferring the 2nd Appeal vide
R.S.A. No.229 of 2025.
3. As per the memo vide Memo No. "C", the name
of Ms. M.P. Behera as the counsel for the petitioners be
deleted from this I.A. as well as from the 2nd Appeal
vide R.S.A. No.229 of 2025 henceforth, as the
petitioners in this I.A. as well as in R.S.A. No.229 of
2025 have disengaged her as their counsel. Therefore,
the Registry shall not reflect the name of Ms. M.P.
Behera, as the counsel for the petitioners in the cause
list as well as in the brief henceforth.
4. As per the noting of the Registry, the notices in
this I.A. under Section 5 of the Indian Limitation Act,
1963 against the Opp. Party Nos.2,4,6,7 and 11 are
made sufficient, but, none has appeared on their behalf.
5. As per the noting of the Registry, the Opp. Party
Nos.1,3,9 and 10 have expired.
6. Therefore, the petitioners are directed to take
steps to substitute their LRs.
7. The petitioners have filed an unnumbered I.A.
supported with an affidavit praying for making the
notice sufficient against the Opp. Party No.5, as the
notice, which was issued to the Opp. Party No.5 through
Registered Post, the said notice has been returned back
with postal endorsement as "Left without instruction"
applying the provisions of law envisaged in the proviso
of Order 5, Rule 9 of the CPC, 1908, Section 114 of the
Indian Evidence Act, 1872, Section 27 of the General
Clauses Act and Section 6 of the Indian Post Office Act.
8. On this aspect, the propositions of law has
already been clarified in three Judges Bench of the
Apex Court between C.C.Alavi Haji Vrs. Palapetty
Muhammed and another reported in 2007 (II) OLR
(SC) 384 (at Para 14) that,
"when a notice is sent, the same is returned
with a postal endorsement "refused" or
"not available in the house" or "house
locked" or "shop closed" or "addressee
not in station" or addressee left without
information" due service has to be
presumed because, the said addressee
managed has managed to return such
notice being in connivance with the postal
peon."
9. The petitioners have also made prayer in this
unnumbered I.A. for making the notice sufficient
against the Opp. Party No.8 as per the Proviso of Order
5, Rule 9 of the CPC, 1908, as the notice was properly
addressed, pre-paid and duly stamped and the same was
sent by Registered Post with A.D. to the Opp. Party
No.8, but neither A.D. nor undelivered notice has been
returned back.
10. So, by applying the principles of law enunciated
in the ratio of the aforesaid decision coupled with
proviso of Order 5, Rule 9 of the CPC, 1908, I find no
justification to disallow this unnumbered I.A. filed on
behalf of the Petitioners (appellants in R.S.A. No.229 of
2025).
11. As such, the unnumbered I.A. filed by the
petitioners (appellants in R.S.A. No.229 of 2025) is
allowed.
12. Therefore, the notices, which were issued to the
Opp. Party Nos.5 and 8 are held as sufficient, but, none
has appeared on their behalf.
13. As such, this unnumbered I.A. is disposed of
finally.
14. Registry is directed to number this disposed of
unnumbered I.A. for statistical purpose.
15. Taking the submissions of the learned counsel for
the petitioners (appellants in R.S.A. No.229 of 2025)
into account, liberty is given to the petitioners to file an
application before the Court of learned Civil Judge,
Senior Division, Bhawanipatna in the final decree
proceeding of T.S. No.31/2001 praying for non-
proceeding of the same on the ground of filing of the
2nd Appeal vide R.S.A. No.229/2025 challenging the
Judgment and Decree passed in T.S. No.31/2001 and
R.F.A. No.6/2009, from which this I.A. has arisen and
in case of filing of such application, the learned Trial
Court shall pass an order on the same taking the filing
of R.S.A. No.229/2025 and this I.A. into account.
16. List this I.A. on 25.03.2026.
17. Urgent certified copy of this Order be granted to
the petitioners on proper application.
( ANANDA CHANDRA BEHERA)
Judge
Rati Ranjan
