Research › Search › Judgment

Orissa High Court · body

2002 DIGILAW 141 (ORI)

JAGSINGH PATRA v. DEBRAM JHAKAR

2002-03-07

P.K.TRIPATHY

body2002
P. K. TRIPATHY, J. ( 1 ) B. P. Ray, learned counsel for the appellants/opp. parties states that in spite of asking the local counsel who were appearing for the appellants in the Court below, he has not received any intimation or instruction relating to the matter if learned Addl. District Judge, Bolangir simultaneously heard and disposed of the application under Section 5 of the Limitation Act and the application under Order 41, Rule 19, CPC after due intimation/notice to the opp. parties in that case (the revision-petitioner ). Therefore, he states that he is not in a position to dispute to the contrary contention of learned counsel for the petitioner that no notice or intimation was given by the Court below for simultaneous hearing and disposal of both the aforesaid applications. ( 2 ) ( 3 ) IN this civil revision, petitioner challenges correctness of the order dated 23-6-2000 passed by learned Addl. District Judge, Bolangir in M. J. C. No. 2 of 1998. ( 4 ) RELEVANT facts, in brief, are that, an appeal was filed by opposite party No. 1 along with some others and, while that was pending in the Court of Addl. District Judge, Bolangir having been registered as Title Appeal No. 35/18 of 1988-89, learned counsel appearing for appellant applied for adjournment and that application being rejected, he did not get ready to participate in hearing. Hence, on that date (22-7-1989) the appeal was dismissed for default of the appellant. An application was filed for restoration of that appeal in accordance with the provision under Order 41, Rule 19, CPC. That was registered as Misc. Case No. 2 of 1998. Since there was a delay of eight years six months and 26 days in filing that application, one of the appellants, i. e. the opposite party No. 1 in this revision filed an application under Section 5 of the Limitation Act, 1963, praying for condonation of delay. Notice was issued to the respondents/opp. parties (in the Court below) and after hearing the parties, the impugned order was passed by condoning the delay as well as allowing the application for restoration and restoring the appeal. ( 5 ) LEARNED counsel for the petitioner, Mr. Notice was issued to the respondents/opp. parties (in the Court below) and after hearing the parties, the impugned order was passed by condoning the delay as well as allowing the application for restoration and restoring the appeal. ( 5 ) LEARNED counsel for the petitioner, Mr. H. S. Mishra, while drawing attention of the Court to the provision u/s. 5 of the Limitation Act relating to the sufficient cause which is not discussed here for the reasons indicated below, also argued that while considering the application u/s. 5 of the Limitation Act, learned Addl. District Judge has gone wrong in allowing the application under Order 41, Rule 19, CPC in as much as opportunity of hearing in that respect was not granted to the revision-petitioner and the pro-forma opposite party members who were opposite parties in the Court below. Mr. B. P. Ray, learned counsel for the opposite party (appellant/petitioner in the Court below), on the other hand, referring to and relying on the cases of President, Sikh Gurudwara, Bhawanipatna v. Rajkishore Panda, 93 (2002) Cut LT 284 : (2002 AIHC 1062); and State of Bihar v. Kameswar Prasad Singh with State of Bihar v. Brij Bihari Prasad Singh, and Indra Nand Mishra v. State of Bihar, AIR 2000 SC 2306 , argues that for advancing substantial justice, a liberal approach should be made to the procedural law and, therefore, that having been done by learned Addl. District Judge, the impugned order is non-interferable. ( 6 ) THE principle of grant of substantial justice should be consistent with the provision of law and it should not be inconsistent or in violation of the statutory provision. Grant of substantial justice should be by proper exercise of the judicial discretion and following the rule of natural justice and not by ignoring the same. No authority has been cited before this Court that substantial justice should be advanced by ignoring the statutory provision or in violation of the principle of natural justice. Grant of substantial justice does not mean only to grant relief in favour of an applicant. No authority has been cited before this Court that substantial justice should be advanced by ignoring the statutory provision or in violation of the principle of natural justice. Grant of substantial justice does not mean only to grant relief in favour of an applicant. On the other hand, principle of natural and substantial justice should more appropriately be advanced by due consideration of the contention of both the parties, loss of substantial rights or the consequential injuries that may be suffered by each of the parties on the event of interference or non interference and the equity and the balance of proportion deducible therefrom. That is how the judicial discretion should be weighed, considered and delivered. If the aforesaid principle shall be followed in this case vis-a-vis the procedural law which does not mandate deciding a case without affording reasonable opportunity to the parties, this Court finds that learned Addl. District Judge committed an illegality by considering the application u/o. 41, Rule 19, C. P. C. simultaneously with the application u/s. 5 of the Limitation Act because, as per the statement of Mr. Mishra which is not disputed by Mr. Ray, the lower appellate Court did not give notice or indication to the revision-petitioner (opp. party in the Court below) that both the applications would be heard and disposed of on a common hearing. Though according to the established procedure if the delay is condoned then only the application for restoration is available to be considered, but in appropriate cases a Court may pass order or direct the parties to address the Court on both the aspects so as to save time for expeditious disposal of such issues. ( 7 ) THE principle for consideration of an application u/s. 5 of the Limitation Act is not only available from the statute in the Limitation Act but also the guide-lines as enunciated in the cited decisions. Therefore, learned Additional District Judge should do well to consider the applications afresh in accordance with law. Settled and established procedure having not been followed and the applications having been allowed without affording sufficient and proper opportunity of hearing, the impugned order is found to be illegal and non-sustainable in the eye of law. Therefore, learned Additional District Judge should do well to consider the applications afresh in accordance with law. Settled and established procedure having not been followed and the applications having been allowed without affording sufficient and proper opportunity of hearing, the impugned order is found to be illegal and non-sustainable in the eye of law. Accordingly, the impugned order is set aside and M. J. C. No. 2 of 1998 is remanded to the Court below to be decided in accordance with law expeditiously and preferably within a period of three months from the date of receipt of a copy of this order. To save the proceeding from delay, both the parties are directed to appear before the learned Addl. District Judge, Bolangir on 3-4-2002, to which they agree. Neither of the parties shall be entitled to fresh or further notice. Default in appearance on that date shall be regarded as such, and the proceeding shall thereafter proceed accordingly. Registry is directed to send a copy of this order immediately to the concerned Court ensuring its receipt by 30th March, 2002. Revision allowed.