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Orissa High Court · body

2008 DIGILAW 98 (ORI)

Satyabadi Behera and two v. Girish Chandra Das

2008-02-01

S.PANDA

body2008
ORDER 01.02.2008 — Heard learned counsel for the petitioner and learned counsel for the opposite parties. 2. The petitioner in this Civil Revision challenges the impugned order dated 8.2.2007 passed by the learned Civil Judge (Senior Division), Udala in FAO No. 2 of 2005. The learned Civil Judge condoned the delay of six days in filing the appeal and restored Civil suit No. 52 of 2004 to the file of learned Civil Judge (Junior Division), Udala setting aside the order dated 30.6.2005 whereby the suit was dismissed for default as well as the orders dated 4.8.2005 and 19.9.2005 whereby the restoration petition filed with the affidavit of the Advocate’s clerk and the better petition for restoration filed by the plaintiff respec¬tively were rejected. 3. The facts as narrated in the records are as follows : Defendants are petitioners. The opposite party as plaintiff filed Civil Suit No. 52 of 2004 before the learned Civil Judge (Junior Division), Udala for recovery of possession and permanent injunction. On 30.6.2005, as the plaintiff did not take any steps, the suit was dismissed for default and was posted for framing of issues. Thereafter, on 27.7.2005 plaintiff with the affidavit of the Advocate’s Clerk filed a petition for restoration of the suit stating therein that due to the illness of the plaintiff, neither the plaintiff could appear in the Court nor could the Advocate on behalf of the plaintiff take any step on the aforesaid date. The learned Civil Judge (Junior Division) dismissed the said petition on 4.8.2005 on the ground that the Advocate’s clerk had sworn the affidavit and the same was not acceptable. The plaintiff filed another petition for restoration on 10.8.2005 which was also rejected by the learned Civil Judge (Junior Division), Udala on 19.9.2005 as the same was not filed within the stipulated period of thirty days. Against the said order, plaintiff filed an appeal before the learned Civil Judge (Senior Division), Udala. The lower appellate Court taking into consideration all the materials available on record restored the suit to the file of the learned Civil Judge (Junior Division), Udala after condoning the delay in filing the appeal, in the interest of justice. 4. Against the said order, plaintiff filed an appeal before the learned Civil Judge (Senior Division), Udala. The lower appellate Court taking into consideration all the materials available on record restored the suit to the file of the learned Civil Judge (Junior Division), Udala after condoning the delay in filing the appeal, in the interest of justice. 4. The learned counsel for the petitioners-defendants vehemently argues that there was a delay of six days in presenting the appeal before the lower appellate Court and the lower appellate Court did not consider the fact that the plaintiff had not filed any application for condonation of delay while filing the appeal under Order 43, Rule 1 of the Civil Procedure Code. According to him, the lower appellate Court heard the appeal on merit and condoned the delay which was illegal and hence interference of this Court is warranted. In support of his contention, the learned counsel for the petitioners has cited a decision of this Court in the case of Rajkumar Jindal v. Orissa Forest Corporation and another reported in 1995 (I) OLR 634. He has also cited a decision of a Full Bench of this Court in the case of Ainthu Ch. Parida v. Sitaram Jayanarain Firm reported in 1984 (I) OLR 819 (FB), wherein it has been held that until the delay in preferring the appeal is condoned and so long as the Court does not decide to hear the appeal after hearing under Order 41, Rule 11 of the Civil Procedure Code, there is no appeal in the eye of law. 5. I find much force in the contention of the learned counsel for the petitioners. The learned counsel for the opposite party submits that the order of dismissal of the suit for default having been set aside by the lower appellate Court in exercise of its discretion, the impugned order need not be interfered with in exercise of revisional jurisdiction of this Court. 6. The learned counsel for the opposite party submits that the order of dismissal of the suit for default having been set aside by the lower appellate Court in exercise of its discretion, the impugned order need not be interfered with in exercise of revisional jurisdiction of this Court. 6. After hearing learned counsel for the parties and going through the record, it appears that the learned Civil Judge (Senior Division), Udala has restored the suit to file after condoning the delay and in the impugned order he has expressed that he has exercised the jurisdiction under Section 151 of the Code of Civil Procedure which is erroneous but he has the jurisdiction to set aside the order of dismissal after condoning the delay which he has done in the interest of justice. In the decision reported in Raj Kumar’s case (supra), this Court held that the Court should afford reasonable opportunity to remove the defect. The object is to put an end to the practice of admitting appeal subject to the decision on the question of limitation at the time of hearing. This provision is only procedural and its object is to do substantial justice. A party cannot be refused just relief merely because of some mistaken negligence, inadvertence or infraction of rules of procedure. A code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its end; not a penal enactment for punishment and penalties, not a thing designed to trip people up. Too technical construction of a provision that leaves no room for reasonable elasticity of interpretation should be guarded against (provided that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it. Hence, the said decision no way helps the defendant-petitioners rather it helps the plaintiff-opposite party as his suit has been restored to file in which the defend¬ants will have a chance to contest the suit. 7. So far as the aforesaid Full Bench decision is concerned, it was held that the Court should first condone the delay, thereafter hear the appeal on merit, and the learned Civil Judge (Senior Division), Udala, sitting in appeal, has condoned the delay and heard the case on merit. 8. 7. So far as the aforesaid Full Bench decision is concerned, it was held that the Court should first condone the delay, thereafter hear the appeal on merit, and the learned Civil Judge (Senior Division), Udala, sitting in appeal, has condoned the delay and heard the case on merit. 8. This Court, in the case of Bikal Sethy v. Gouranga Chandra Sethy and others reported in 1987 (II) OLR 312, has held that where, on oral submission, the Court is satisfied that there is sufficient cause for condonation of delay, it is not necessary that a written application should be filed. Oral submission can also be sufficient. In view of the same, no illegality has been committed by the learned Civil Judge (Senior Division), Udala in condoning the delay without any petition. In that appeal, the lower appellate Court had issued notice to the defendants and after their appearance he has condoned the delay and heard the appeal on merit. 9. The learned Civil Judge (Senior Division) has errone¬ously mentioned the nomenclature of the provisions in the im¬pugned order. Thus, even though the nomenclature was erroneously mentioned, on bigger principle, this Court holds that substantial justice has been done. Precedent should be followed only so far as it marks the path of justice, and to keep the path of justice free of obstructions which could impede it. Hence, I am not inclined to interfere with the impugned order. 10. It appears from the impugned order that the delay in filing the appeal was condoned without awarding any cost and also the order of dismissal of the suit was set aside by the lower appellate Court without any term as to costs. The learned Civil Judge (Senior Division), Udala should have awarded costs against the plaintiff for his non-appearance on the date when the suit was taken up for hearing. 11. In the aforesaid view of the matter, this Court without interfering with the impugned order, directs that the plaintiff shall pay a cost of Rs. 300/- (Rupees three hundred) to the defendants within a period of four weeks from today before the Court below which will mitigate the prejudice caused to the opposite parties-defendants. It is made clear that the payment of cost as aforesaid shall be the condition precedent for implemen¬tation of the order of the lower appellate Court. 12. 300/- (Rupees three hundred) to the defendants within a period of four weeks from today before the Court below which will mitigate the prejudice caused to the opposite parties-defendants. It is made clear that the payment of cost as aforesaid shall be the condition precedent for implemen¬tation of the order of the lower appellate Court. 12. With the aforesaid observation, this Civil Revision is disposed of. No cost. Issue urgent certified copy. Civil Revision disposed of.