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2015 DIGILAW 598 (ORI)

Jagannath Panda v. Narayan Mohapatra

2015-10-16

A.K.RATH

body2015
JUDGMENT Dr. A.K.RATH, J - By this application under Article 227 of the Constitution of India, the petitioner has challenged the order dated 15.5.1987 passed by the learned District Judge, Puri in Title Appeal No.31/60 of 82/81 whereby and whereunder the learned lower appellate Court held that the appeal stands abated on the basis of the report of the process server that the appellants are dead. 2. Biswanath Mohapatra predecessor-in-interest of the opposite parties as plaintiffs laid a suit for declaration of title, confirmation of possession over the suit land and for permanent injunction impleading the mother of the present petitioner and others as defendants in the Court of learned Sub-Judge now learned Civil Judge (Senior Division), Puri, which is registered as O.S. No.100 of 1977. Pursuant to issuance of summons, defendants entered appearance and filed written statement denying the assertions made in the plaint. The suit was decreed. Challenging the judgment and decree dated 31.3.1981 and 9.4.1981 passed by the learned trial Court, defendants filed an appeal being Title Appeal No.31/60 of 82/81 before the learned District Judge, Puri. On 16.7.1981, the appeal was admitted and notice was issued to the respondents. After hearing the learned counsel for the parties, learned lower appellate Court allowed the appeal, set aside the judgment and decree and remanded the matter back to the learned trial Court for fresh disposal. Challenging the order of the learned lower appellate Court, defendant nos.1 and 1(a) filed an appeal being Misc. Appeal No.351 of 1983 before this Court. This Court allowed the appeal on 26.9.1986 and directed the learned lower appellate Court to reconsider the appeal on the basis of the materials available on record with a further direction to the parties to appear before the learned lower appellate Court on 17.11.1986. The parties appeared through their counsel on 17.11.1986. While the matter stood thus, a memo had been filed by the advocate for the respondent no.1 that respondent no.1 expired on 18.11.1984. On 16.1.1987, learned counsel for the appellants filed a memo stating that appellant no.1 died and he had no instruction. It was also brought to the notice of the Court that respondent no.1 died. Learned trial Court issued notice to the appellants and respondents through Court fixing 4.2.1987 for appearance. Notices issued to the appellants and respondents received back unserved with report ‘dead’. On 15.5.1987, the matter was taken up. It was also brought to the notice of the Court that respondent no.1 died. Learned trial Court issued notice to the appellants and respondents through Court fixing 4.2.1987 for appearance. Notices issued to the appellants and respondents received back unserved with report ‘dead’. On 15.5.1987, the matter was taken up. Learned counsel for the appellants submitted a memo stating that he had no instruction in the matter. Since notice sent to the appellants returned back with an endorsement that the appellants are dead and a memo was filed by the learned counsel for the respondents that the appellants are dead, learned lower appellate Court basing on the report of the process server as well as memo filed by the learned counsel for the respondents passed the order that the appeal stands abated. While the matter stood thus, an application was filed by the appellants to recall the order dated 15.5.1987, which is registered as Misc. Case No.368 of 1987. It is stated that notices were issued to the appellants for their appearance. The process server submitted a report that both the appellants are dead. On 15.5.1987, learned counsel for the appellants filed a memo stating that he had no instruction in the matter. Learned counsel for the respondents filed a memo stating that the appellants are dead. Basing on the same, the appeal was disposed of as abated. It is further stated that the appellant no.1-Nilamani Dibya died on 9.12.1985 leaving behind no legal heir and successor. The right to sue survives on the other appellant-Champa Dibya. The process server report reveals that Champa Dibya died is wrong. With the factual scenario, this petition has been filed. By order dated 21.8.1999, learned lower appellate Court dismissed the misc. case. 3. Heard Mr. Soumya Mishra on behalf of Mr. S.P. Mishra, learned Senior Advocate for the petitioner and Mr. Bikash Parija, learned counsel for the opposite parties. 4. Mr. Mishra, learned counsel for the petitioner, argued with vehemence that the report of the process server that both the appellants are dead is wholly incorrect. Drawing my attention to the death certificate issued by the Health Officer, Puri Municipality, Puri, vide Annexure-2, he submitted that Champa Dibya-appellant no.2 died on 28.11.1991. 5. Per contra Mr. Parija, learned counsel for the opposite party no.1, supported the impugned order passed by the learned lower appellate Court. 6. Drawing my attention to the death certificate issued by the Health Officer, Puri Municipality, Puri, vide Annexure-2, he submitted that Champa Dibya-appellant no.2 died on 28.11.1991. 5. Per contra Mr. Parija, learned counsel for the opposite party no.1, supported the impugned order passed by the learned lower appellate Court. 6. Death certificate issued by the Health Officer, Puri Municipality, Puri shows that Champa Dibya-appellant no.2 in the appeal died on 28.11.1991. The report of the process server is ex facie wrong. Further, the learned counsel for the respondents misled the Court by filing a memo. Basing on the report of the process server as well as memo filed by the appellants that both the appellants died, learned lower appellate Court dismissed the appeal as abated on 15.05.1987. When the mistake committed by the process server was drawn to the attention of the learned lower appellate Court, it was incumbent on the part of the Court to recall the order. But on an untenable and unsupportable ground, learned lower appellate Court rejected the application of the petitioner. 7. Actus Curie Neminem Gravabit is an elementary rule of justice. No party should suffer by the mistake of the Court. 8. In A. R. Antulay v. R.S. Nayak and another, AIR 1988 SC 1531 , a Constitution Bench of the apex Court in para-100 of the report held as follows: “100. It is a well settled position in law that an act of the Court should not injure any of the suitors. The Privy Council in the well known decision of Alexander Rodger v. The Comptori D’ Escompte De Paris, (1871) 3 PC 465 observed :- “One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors, and when the expression act of the Court is used, it does not mean merely the act of the primary Court, of any intermediate Court of appeal, but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case. It is the duty of the aggregate of those Tribunals, if I may use the expression, to take care that no act of the Court in the course of the whole of the proceedings does an injury to the suitors in Courts.” 9. In the wise and inspiring words of Justice Bronson in Pierce v. Delameter (A.M.Y. at page 18), “a Judge ought to be wise enough to know that he is fallible and, therefore, ever ready to learn: great and honest enough to discard all mere pride of opinion and follow truth wherever it may lead: and courageous enough to acknowledge his errors.” The same view was echoed in Hotel Balaji and others v. State of A.P and others, AIR 1993 SC 1048 . The apex Court held that to perpetuate an error is no heroism. To rectify it is the compulsion of judicial conscience. 10. In view of the fact that the mistake was done by the learned lower appellate Court, the learned lower appellate Court ought to have exercised its inherent power under Section 151 CPC to recall the order. If the impugned order is allowed to stand, the same will cause miscarriage of justice. 11. In view of the same, the impugned order dated 15.5.1987 passed by the learned District Judge, Puri in Title Appeal No.31/60 of 82/81 is quashed. The matter is remanded back to the learned lower appellate Court granting liberty to the parties to file applications for substitution, setting aside abatement and condonation of delay. In the event the applications are filed, the learned lower appellate Court shall allow the same and hear the appeal on merit. The petition is allowed. No costs. Petition allowed.