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Orissa High Court · body

2007 DIGILAW 288 (ORI)

Aziza Ekbal Khatun v. Narula Hassan,five others

2007-04-25

I.MAHANTY

body2007
ORDER 25.4.2007 — Heard learned counsel for the parties. This appeal is directed against the judgment and decree dated 9.2.1996 passed by a learned Single Judge of this Court in F.A.No. 443 of 1982. The said First Appeal was filed by defendant No. 1 challenging the judgment and decree passed by the learned Additional Subordinate Judge, Balasore in O.S.No. 101 of 1982-I decreeing the suit and declaring the plaintiff’s half share in the suit property and directing the partition of the suit proper¬ty by metes and bound. The learned counsel appearing for the appellant submits before us that in the said First Appeal hearing was concluded and the judgment was reserved on 27.11.1990. Thereafter, the judgment was delivered on 9.2.1996. On going through the record, we find that the aforesaid stand taken by the learned counsel for the appellant is correct. We also find from the record that the matter was heard on various misc. cases and various interim directions were passed and ultimately, the main appeal was heard by the learned Judge on 19.11.1990, 20.11.1990, 21.11.1990, 22.11.1990 and then on 27.11.1990. The appeal was virtually heard on a day to day basis and on 27.11.1990, the judgment was reserved. Thereafter the same was delivered by the learned Single Judge after keeping it pend¬ing for a period of more than five years. The learned counsel for the appellant also drew the attention of this Court to two judgments of the Supreme Court, one was rendered in the case of R.C.Sharma v. Union of India and others, AIR 1976 SC 2037 , and the other in the case of Anil Rai v. State of Bihar, AIR 2001 SC 3173 . In paragraph 12 of the judgment rendered by the Supreme Court in R.C.Sharma’s case (supra), the learned Judges deprecated the practice of delaying the delivery of judgments by the High Court and in that case, the delay was of eight months. In the instant case, the delay is for more than five years. In the subsequent judgment rendered by the Supreme Court in Anil Rai’s case (supra), the aforesaid observations in R.C.Sharma’s case (supra) were reiterated and the learned Judges of the Supreme Court have taken a very strict view. In that judgment also the learned Judges have deprecated the practice of taking unduly long time by the High Court in delivering the judgment. In that judgment also the learned Judges have deprecated the practice of taking unduly long time by the High Court in delivering the judgment. The learned Judges have stated in paragraph 19 of the said judgment : “The pronouncement of judgments in the civil case should not be permitted to go beyond two months.” The learned Judges have held that if for any reason a judgment is not pronounced within six months, any of the parties to the lis shall be entitled to make an application before the Chief Justice of the High Court for withdrawing the case to make it over to any other Bench for fresh arguments. (See paragraph 21 at page 3181 of the report). In the instant case, instead of six months, there has been a delay of more than five years. Therefore, in our view, the learned counsel for the appellant is entitled to urge that the judgment delivered by the learned Single Judge after keeping the matter pending for more than five years may not be accepted by his client as a judgment. We feel constrained to agree with the said submission made by the learned counsel. By exercising utmost restraint on our part and without commencing anything about the way the judgment was kept reserved for an unduly long time and then delivered, we decide to send the First Appeal for a fresh hearing by the appropriate Bench. Since the First Appeal is of the year 1982, we request the learned Judge before whom it will be posted, to hear the matter by giving it a priority. We therefore set aside the judgment dated 9.2.1996 on the grounds discussed above, but not on merit. We remand the matter to the first appellate Court with the interim order if any is existing as on date. We make it clear that after the first appellate Court takes up the matter for hearing, it will be open to the first appellate Court either to vary, continue or modify the interim order which is existing as on date. This appeal against the High Court judgment dated 9.2.1996 passed by the learned Single Judge in First Appeal No. 443 of 1982 is disposed of. The judgment dated 9.2.1996 is set aside. There will be no order as to costs. Appeal disposed of.