STATE OF ORISSA v. HATA SWAIN — 1999 DIGILAW 380 (ORI)

P. K. MISRA, J. ( 1 ) THE facts giving rise to the filing of the present Civil Revision are as follows : plaintiff-opposite parties had filed O. S no. 203/89-1 in the Court of Munsif. Bhubaneswar (presently known as Civil Judge (Junior Division) for declaration of title and for correction of Record-of-Rights in respect of the disputed property. The suit having been decreed in favour of the plaintiffs/the defendant (present petitioner) filed Title Appeal No. 17/92 along with a petition for condonation of delay. The Additional District Judge held that no sufficient cause had been shown for condoning the delay in filing the appeal and accordingly, the appeal was dismissed. The aforesaid order was challenged in the High court in Civil Revision No. 272/93 and the high Court by order dated 12. 7. 1995 rejected the revision. Thereafter, the matter was carried to the Supreme Court in Special Leave Petition no. 7912/96 and the Supreme Court passed an order allowing the Special Leave Petition by order dated 5. 9. 1997. The operative portion of the order passed by the Supreme court as quoted by the petitioner in the revision is as follows :"on the peculiar facts and circumstances of this case in our view, interest of justice will be served if the delay in filing the appeal before the District Court by the appellant-State is condoned subject to suitable orders as to costs to be paid to the respondents. As there are 20 respondents, we direct that the State shall deposit in the District Court concerned an amount of rs. 20,000/- (Rupees twenty thousand only) by way of cost as a condition for restoration of their appeal for disposal on merits. The orders of the High Court and Addl. District judge are set aside. The delay in filing the copy of the decree in appeal before District Court is condoned. The appeal is restored to the file of the District Court for being considered on merits subject to the appellant depositing rs. 20,000/- (Rupees twenty thousand only) as costs within four weeks from the receipt of a copy of this order. The delay in filing the copy of the decree in appeal before District Court is condoned. The appeal is restored to the file of the District Court for being considered on merits subject to the appellant depositing rs. 20,000/- (Rupees twenty thousand only) as costs within four weeks from the receipt of a copy of this order. At the request of the learned counsel for the respondent, it is also directed that the restored appeal shall be disposed of on merits at the earliest convenience of the District Court and preferably within a period of six months of the receipt of the copy of this order and its end. The office shall send a copy of this order to the District Court concerned for due compliance. The appeal is disposed of accordingly. No costs. " ( 2 ) THE order of the Supreme Court was received by the Additional District Judge on 25. 9. 1997 and accordingly, the lower appellate court posted the appeal to 23. 10. 1997 for compliance of the order regarding deposit of cost of Rs. 20,000/ -. On 23. 10. 1997, an application was filed on behalf of the present petitioner for adjournment of the case to any other day for payment of cost. It was indicated in the petition that the appellant had moved the Finance Department for allotment of funds. ( 3 ) THE lower appellate Court held that since the time had been fixed by the Supreme court, the lower appellate Court, that is to say. the Additional District Judge did not have jurisdiction to extend the time for deposit of the cost. As such, the petition was rejected by order dated 23. 10. 1997. ( 4 ) THEREAFTER the present Civil Revision has been filed on 13. 7. 1998 along with a petition for condonation of delay numbered as misc. Case No. 222/98. Notice has been issued to the opposite parties on the. question of condonation of delay in filing the Civil Revision. Some of the opposite parties have entered appearance through lawyer. Pursuant to the direction of this Court by order dated 22. 12. 1998 at the time when notice in revision was issued, the petitioner has deposited a sum of Rs. 20,000/- in this Court. question of condonation of delay in filing the Civil Revision. Some of the opposite parties have entered appearance through lawyer. Pursuant to the direction of this Court by order dated 22. 12. 1998 at the time when notice in revision was issued, the petitioner has deposited a sum of Rs. 20,000/- in this Court. The counsel appearing for the opposite parties were called upon to obtain instruction from the opposite parties as to whether they would receive the cost deposited in this Court as well as an additional sum of Rs. 10,000/ -. However, the counsel on instruction submitted that the opposite parties are not willing to accept the amount deposited and the enhanced cost offered by the State Government. ( 5 ) THE first question relates to question of limitation. in filing the present Civil Revision. The impugned order by the appellate court was passed on 23. 10. 1997 and the revision has been filed on 13. 7. 1998. In other words, there is delay of 173 days (about six months) in filing the revision. The relevant portions of the explanation furnished by the petitioner in the Misc. Case petition for condonation of delay are extracted hereunder: "2. That after the order of the learned additional District Judge, the Government Counsel isformed the department about the order on 27. 11. 1997. which was subsequently referred to the Law department on 28. 11. 1997. The matter was examined as to whether an application was required to be filed before the Hon'ble Supreme Court or to move the High Court for challenging the order of the learned Addl. ' District Judge. Eventually, the Law Department with the opinion of the learned Advocate General, decided to challenge the order before the Hon'ble High Court in Revision since the rejection order prima facie shows that the calculation of four weeks was computed from the date of receipt of the order by the learned Addl. Distt. Judge, but which ought to have been calculated from the date of receipt of the order by the petitioner. 3. That thereafter, the file was referred to the Office of the Advocate General for preparation of the revision petition and accordingly, after preparation of the same, the Civil Revision is being filed today. 4. That there has been no deliberate laches or negligence on the part of the petitioner in filing the revision in time. 3. That thereafter, the file was referred to the Office of the Advocate General for preparation of the revision petition and accordingly, after preparation of the same, the Civil Revision is being filed today. 4. That there has been no deliberate laches or negligence on the part of the petitioner in filing the revision in time. The same has been filed diligently and the delay was never intentional or deliberate, but for the bona fide reason of inter-departmental consultations. ( 6 ) THE aforesaid explanation furnished in the petition for condonation of delay falls far short of the requirement. As per the statement contained in paragraph-2, the file was referred to the Law Department on 28. 11. 1997 and the decision to file the Civil Revision in the high Court was taken in consultation with the advocate General. Even then, there is no explanation as to why the revision was not filed within the period of limitation. Except making some vague allegations, no attempt has been made to explain the inordinate delay in filing the revision. It is, of course true that the question of limitation is to be considered liberally to advance cause of substantial justice. That, however, does not mean that in every case even where there is no semblance of any explanation for inordinate delay, the delay has to be condoned merely as a matter of routine. After going through the petition filed by the State for condonation of delay, 1 do not find any sufficient cause explaining the delay As such, the petition for limitation is dismissed. ( 7 ) EVEN assuming that limitation could have been condoned, the question is whether there is any merit in the Civil Revision. The time for payment of cost had been fixed by the Supreme Court and as such, the Additional district Judge could not have extended the said time. The counsel for the petitioner has now contended in the High Court that the period of four weeks as per the direction of the supreme Court should commence from 20. 10. 1997, the date on which the petitioner received a copy of the order of the Supreme court. The Additional District Judge has calculated four weeks from the date of receipt of the order by the Additional District Judge. This appears to be a reasonable view. 10. 1997, the date on which the petitioner received a copy of the order of the Supreme court. The Additional District Judge has calculated four weeks from the date of receipt of the order by the Additional District Judge. This appears to be a reasonable view. In fact, the petitioner also was apparently of the same opinion and that is why it had filed an application for extension of time to comply with the order. It was never contended before the Additional District Judge that the four weeks' period was to commence from 20 10. 1997 it is apparent that the order of the Supreme court was passed in presence of the lawyer of the State before the Supreme Court and subsequently a copy was obtained. No explanation has been furnished as to when such copy was obtained and when it was despatched. Nothing has been indicated as to why it took such a long period for the counsel for the State to communicate the order to the State even assuming the assertion of the State that it received the order on 20. 10. 1997 to be correct. In any case, such contention which is being raised, for the first time in Civil Revision is not acceptable. The remedy of the petitioner was to seek for an extension of time before the Supreme Court instead of filing such an application before the Additional District Judge and in challenging the order of the lower appellate court by way of Civil Revision in High court. In other words, even on merit the petitioner has no case. ( 8 ) FOR the aforesaid reasons, the Civil revision is dismissed. There will be no order as to costs. The amount deposited in this Court shall be refunded to the petitioner. Revision dismissed.