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2008 DIGILAW 564 (ORI)

Janardan Mohapatra v. Brajabandhu Mohapatra

2008-07-22

I.MAHANTY

body2008
JUDGMENT I. MAHANTY, J. — The petitioners, who are plaintiffs in T.S. No.213 of 1998, have filed this writ application seeking to challenge the order dated 2.11.2006 passed by the Civil Judge (Jr. Divn.), Puri in the said suit whereby three petitions filed by the petitioners on 20.4.2005; one under Order 22, Rule-4 read with Section 151 C.P.C., another for setting aside abatement and the third one under Section 5 of the Limitation Act read with Section 151 CPC for condonation of delay in taking steps for substitution, were rejected. 2. From the pleadings, it is apparent that the petitioners have filed T.S. No.213 of 1998 before the learned Civil Judge (Jr. Divn.), Puri praying, inter alia, for declaration of right, title and interest in respect of the suit schedule properties. It appears that Defendant No.1-Chintamani Mohapatra died on 25.9.99 after his appearance in the suit. The plaintiff-petitioners had filed a petition under Order 1, Rule-10 CPC for impleading the legal heirs of the deceased-Defendant No.1 and that application came to be rejected by the Civil Judge by his order dated 16.9.2004, on the ground that since the Civil Procedure Code under Order 22 provides for the steps to be taken when a party dies during the pendency of the suit and since a specific provi¬sion is available in the C.P.C., the application under Order 1, Rule-10 was held to be not maintainable and hence dismissed. After dismissal of the aforesaid application, the petition¬ers have filed three applications on 20.4.2005 details of which are noted hereinabove and those applications having come to be rejected by the order dated 2.11.2006, the said order is the subject matter of challenge in the present writ application. 3. Learned counsel for the plaintiff-petitioners submitted that the learned Civil Judge ought not to have rejected the application for substitution filed by the plaintiff-petitioners and should have taken a liberal approach in the matter. According to the learned counsel, after the plaintiff’s application under Order 1, Rule-10 was rejected in view of the existence of a provision under Order 22 CPC whereafter, the plaintiffs had filed an application under Order 22 and this as well came to be reject¬ed purportedly on the ground of delay. In essence, it is contend¬ed that this dismissal has resulted in meritorious matters being thrown out at the very threshold and cause of justice being defeated. In essence, it is contend¬ed that this dismissal has resulted in meritorious matters being thrown out at the very threshold and cause of justice being defeated. In this respect, learned counsel for the petitioner placed reliance upon a decision of the Apex Court in the case of Collector, Land Acquisition, Anantnaga and others v. Mst. Katiji and others, AIR 1987 SC 1353 and on decisions of this Court in the case of Tilotama Bewa v. Tirtha Dehuri and another, 1991 (I) OLR 214 as well as in the case of Gopal Krushna Mohapatra v. Canara Bank, 2002 (I) OLR 220 . Placing reliance on the aforesaid judgments, learned counsel for the petitioners submitted that the trial Court has taken a hyper-technical consideration of the facts of the case and by rejecting the petitions filed by the plaintiffs, amount to failure to render “substantial justice”. 4. Learned counsel for the Opp.parties (defendants before the trial Court), on the other hand, strenuously argued that the factum of death of Defendant No.1 on 25.9.1999 had been indicated by the defendants in paragraph-6 of their written statement filed on 12.10.1999. He further submitted that once the fact of demise of Defendant No.1 on 25.9.1999 was brought to the notice of the plaintiffs, as well as, the Court by way of averments contained in the written statement filed on 12.10.1999, the plaintiffs having not acted immediately or within the reasonable time thereafter, does not justify any challenge to the order of the civil Court dated 2.11.2006. 5. On consideration of the arguments advanced by the learned counsel for both the parties, I could do not better than placing reliance on the Division Bench judgment of the Supreme Court rendered by Hon’ble Mr. Justice M.P. Thakkar in the case of Collector, Land Acquisition, Anantnag (supra). In the said judg¬ment, the Hon’ble Supreme Court while noting that the expression “sufficient cause” held that the term employed by the Legislature is “adequately flexible enabling the Courts to apply law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justi¬fiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy.” 6. It is common knowledge that this Court has been making a justi¬fiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy.” 6. The anguish expressed by the Hon’ble Supreme Court in the aforesaid case continues to be a reality even today and in spite of repeated directions of the Supreme Court as well as this Court, in the matter of delay, the trial Courts continue to approach the issue of delay in an extremely pedantic technical manner, thereby, causing disservice to the interest of the liti¬gants as well as the Courts. I reiterate herein that the expres¬sion “sufficient cause” as contained in Section 5 of the Limita¬tion Act, 1963 while being held to be widely elastic, the intent behind it, is to enable the Courts to apply law in a meaningful manner which subserves the ends of justice and that remains the life purpose for the existence of the institution of Courts. The Hon’ble Supreme Court in the aforesaid judgment has laid down the manner in which jurisdiction in such matters should be exercised and I quote the same herein below : “(1) Ordinarily a litigant does not stand to benefit by lodging an appeal late. (2) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of jus¬tice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. (3) “Every day’s delay must be explained” does not mean that a pedantic approach should be made. Why not every hour’s delay, every second’s delay ? The doctrine must be applied in a rational common sense pragmatic manner. (4) When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. (5) There is no presumption that delay is occasioned delib¬erately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. (5) There is no presumption that delay is occasioned delib¬erately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. (6) It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.” 7. In view of the aforesaid judgment of the Hon’ble Su¬preme Court and various other judgments referred to herein above, I hold that the impugned order dated 2.11.2006, being opposed to the principles laid down here in above, is quashed and I further hold that the three petitions filed by the plaintiff-petitioners on 20.4.2005, one under Order 22, Rule-4 read with Section 151 C.P.C., another for setting aside abetment and the third one under Section 5 of the Limitation Act, 1963, are allowed. The substituted legal heirs of Defendant No.1 be impleaded as parties to the suit and notice in the matter may be issued to them. Before parting, it becomes necessary on my part to take note of the fact that the trial Court should never forget for making justice oriented approach in matters concerning delay and this would go along with effective adjudicating the dispute on merits. It must never be forgotten that the objective of the litigant is to seek adjudication of their disputes. Accordingly, rejecting an application for substitution on the ground of delay alone does not in any manner subserves such purposes. The trial Court should always keep in mind the direction of the Hon’ble Supreme Court as well as of this High Court and effectively exercise its jurisdiction in a manner so as to justify the ends of justice as has been described as the “life-purpose for the existence of the institution of Courts”. 8. With the aforesaid observations and directions, the writ petition is allowed. No costs. Petition allowed.