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2015 DIGILAW 676 (ORI)

Jayanta Kumar Bhanja v. Chitta Ranjan Bhanja

2015-12-03

D.DASH

body2015
JUDGMENT : D. Dash, J. 1. This appeal has been directed against the judgment and decree passed by the learned District Judge, Balasore in R.F.A. No. 199 of 2012. The respondent Nos. 1 to 8 as the plaintiffs had filed C.S. No. 267 of 2005, a suit for partition and permanent injunction. The suit having been dismissed, as unsuccessful plaintiffs, they had carried the appeal under section 96 of the Code of Civil Procedure. The appeal being been filed beyond the period of limitation, notice to show cause as to why the said delay in filing the appeal would not be condoned were issued to the present appellants who were the respondent Nos. 4 to 7 in the lower appellate court and also other defendant-respondents. Except respondent No. 3 before the lower appellate court, who is the defendant Nos. 3 in the trial court none others appeared pursuant to the said notice to show cause in the matter of limitation to oppose the move of getting the delay condoned. The lower appellate court by order dated 05.04.2013 condoned the delay and by order dated 08.04.2013 admitted the appeal. On that very day, a petition was filed on behalf of the appellants praying of exemption of service of notice of hearing of appeal upon the respondent Nos. 2 to 7 and 10 to 12 on the ground that since notice in the matter of limitation and condonation of delay in filing the appeal having been issued and served upon those respondents and as they did not appear to contest the same, there remains no need of further service of notice of hearing of appeal on them. Learned District Judge allowed the petition and called for the L.C.R. On 11.04.2013, the appeal being heard on merit showing it to have been so heard on contest in the absence of above noted respondents before it, the judgment and decree have followed. 2. Learned District Judge allowed the petition and called for the L.C.R. On 11.04.2013, the appeal being heard on merit showing it to have been so heard on contest in the absence of above noted respondents before it, the judgment and decree have followed. 2. The appeal has been admitted on the following substantial questions of law: "(a) "Whether the learned District Judge is right in exempting the appellant from service of notice of hearing of the appeal upon these respondents because they being served with the notice to show cause in the matter of limitation had not appeared to contest the said prayer for condonation of delay?" (b) Whether for service of notice to show cause on the question of condonation of delay in filing the first appeal under section 96 of the Code of Civil Procedure would amount to service of notice of hearing of the appeal on being admitted upon condonation of the delay"? 3. Sub-Rule-2 of Rule 3-A of Order 41 of the Code of Civil Procedure provides that when an appeal is presented after the expiry of period of limitation specified therefor, it shall be accompanied by an application supported by affidavit setting the facts on which the appellant relies to satisfy the court that he had sufficient cause for not preferring the appeal within such period. Then Sub-Rule (2) provides that if the court sees no reason to reject the application without issuance of a notice to the respondent, notice thereof shall be issued to the respondents and the matter shall be finally decided by the court, before it proceeds to deal with the appeal under Rule 11 of the Code. 4. The notice as has been referred to in Sub-Rule (2) above certainly refers to the notice in the matter of condonation of delay as only after the condonation of delay in filing the appeal, the appellate court as required under Rule 11 would hear the appellant or his pleader and may either dismiss the appeal or admit the same and fix the date of hearing of the appeal. A respondent though may not like to object in the matter of condonation of delay yet may like to contest the appeal. Simply because the respondent does not appear to contest in the matter of condonation of delay, it can never be presumed in law that he has nothing to contest the appeal. A respondent though may not like to object in the matter of condonation of delay yet may like to contest the appeal. Simply because the respondent does not appear to contest in the matter of condonation of delay, it can never be presumed in law that he has nothing to contest the appeal. But where upon due of service of notice of hearing of appeal, the respondent does not appear on the date fixed for hearing, the appellate court may proceed to hear the appeal ex parte and decide it in accordance with law. 5. It is seen from the order-sheet of the lower appellate court that on 05.04.2013 the service of notice on the question of limitation having been held sufficient, on that day the prayer for condonation of delay in filing the appeal was allowed after hearing the learned counsel for the appellant and respondent No. 3 and thereafter on 08.04.2013 the condition for condonation of delay in filing the appeal having been complied with, the learned District Judge has allowed the application filed by the appellant in exempting them from serving the notice of hearing of the appeal upon all the respondents. As culled out from the tenure of the order, the learned District Judge has allowed the said application on the presumption that the respondents did not want to contest the appeal and have nothing to say in that as because they did not appear pursuant to the notice to show cause in the matter of condonation of delay and did not chose to contest the matter. At this stage, it is felt desirable to reproduce the order so passed:-- "08.04.13 Advocate for the appellant files a memo showing payment of cost of Rs. 500/- to the counsel for the contesting respondent. In view of order dated 05.04.2013 and payment of cost made by the appellant, the delay in filing the appeal is condoned. Accordingly, the limitation petition is allowed. Seen the office note. Heard on the point of admission. Admit. Call for L.C.R. fixing 11.04.2013 awaiting L.C.R. At this stage learned counsel for the appellant files a petition for exemption of notice against respondent No. 2 to 7, 1, 3, 10, 11 and 12 is put up for consideration. Accordingly, the limitation petition is allowed. Seen the office note. Heard on the point of admission. Admit. Call for L.C.R. fixing 11.04.2013 awaiting L.C.R. At this stage learned counsel for the appellant files a petition for exemption of notice against respondent No. 2 to 7, 1, 3, 10, 11 and 12 is put up for consideration. It is contended on behalf of the appellant that notice on limitation matter against the above respondents have been issued but in spite of sufficient service of notice on limitation matter the aforesaid respondents did not like to appear and contest the appeal. Hence, notice on the appeal memo against the above respondents may be exempted. Heard. Perused the case record so also the petition. Since, in spite of sufficient service of notice the aforesaid respondents did not like to appear and contest the appeal on limitation matter. Hence, the petition filed by the appellant for exemption of notice on the appeal memo against the aforesaid respondents is exempted. The appellants are exempted for taking steps for service copy of appeal memo against the above respondents is exempted. Put up on the date fixed for L.C.R." 6. It really shocks the judicial conscience of this Court that how a Senior District Judge have dealt the matter in such a manner completely ignoring the mandatory provisions of law contained in the Rule, taking it for granted that service of notice in the matter of condonation of delay in filing the appeal amounts to service of notice of hearing of the appeal and has heard the appeal in their absence in finally allowing the appeal that too as on contest indicating as such in the judgment as well as the decree. The lower appellate court having condoned the delay and under the circumstance having not dismissed the appeal under order 41, rule 11 of the Code, could not have exempted the appellants from service of notice of hearing of the appeal upon the respondents in presuming as if they had no mind to contest the appeal and then finally allowing the appeal as such on contest in setting aside the judgment and decree passed by the trial court standing in favour of the respondents. It clearly amounts to hearing and disposal of the appeal without serving the notice of hearing of appeal upon the respondents behind their back. It clearly amounts to hearing and disposal of the appeal without serving the notice of hearing of appeal upon the respondents behind their back. Service of notice fixing the date of hearing of appeal in the case was imperative being the strict requirement as mandated in law. The Learned District Judge has thus decided the appeal not only blowing the fundamental principles of natural justice to the winds but also slaughtering the mandatory provisions of law at the alter of pavement of the way for allowing the appeal at a hot haste which is unexpected. Thus the order granting exemption to the appellants from serving notice of hearing of the appeal upon the respondents clearly amounts to abduction of judicial conscience and is wholly unsustainable in law. Consequently, the judgment and decree passed by the lower appellate court upon hearing of the appeal in the manner as has been done in the case stand vitiated and are liable to be set aside which this Court hereby does. 7. The above discussions thus record the answers to the substantial questions of law in the negative which leads to allow the appeal and set aside the impugned judgment and decree passed by the lower appellate court. 8. In the wake of aforesaid, the appeal is allowed with cost throughout. Consequently, the appeal is remitted to the court of the District Judge, Balasore for hearing of the appeal and its disposal in accordance with law. The appeal being of the year 2013, in order to avoid further delay the parties are hereby directed to appear in the said court on 12.01.2016 to receive further instruction and the learned District Judge is directed to dispose of the appeal in accordance with law after hearing the parties within a period of three months therefrom. Registry is directed to communicate a copy of this judgment to the Judicial Officer concerned as also to all the District Judges of the State for information. Appeal Allowed