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2016 DIGILAW 986 (ORI)

Kasian Surya v. Prakash Surya

2016-10-28

BISWANATH RATH

body2016
JUDGMENT : Biswanath Rath, J. This writ petition has been filed by the petitioners assailing the impugned orders under Annexure-7 & 8 to this petition. 2. In assailing the impugned orders, Sri Pitambar Panda, learned counsel for the petitioners raises serious allegations i.e. firstly that since the Miscellaneous Appeal bearing No.3/2009 at the instance of the petitioners was filed accompanying a petition for condonation of delay, whether the appellate authority was justified in disposing the appeal on merit while condoning the delay application at the instance of the appellant? And secondly, even though such a question was raised before the revisional authority, if the revisional authority is justified to ignore such contention of the petitioner and dispose of the revision on merit? It is contended that for deciding the appeal on the date, delay was condoned the petitioner could not get reasonable opportunity of hearing in the appeal and under the circumstances, learned counsel for the petitioners prays for setting aside the orders under Annexure-7 & 8 and remit the matter back to the appeal stage for rehearing of the appeal. 3. Sri B. Ch. Panda, learned counsel for the opposite party Nos.1 to 4 on the other hand, opposing the submissions made by the learned counsel for the petitioners contended that since the notice was issued to the petitioners for hearing on the delay condonation application as well as hearing on the merit of the appeal, no wrong has been committed by the appellate authority in proceeding with the merit involving the appeal on the same date after condoning the delay and deciding the matter finally. Consequently, Sri Panda urged that since the Member, Board of Revenue passed the order perusing the records and taking note of the fact that the petitioner was issued notice in the matter of condonation of delay as well as on the merit of the appeal, the revisional authority cannot be held to be wrong. 4. In producing the lower courts records, learned State Counsel also contended that in entertaining the appeal memorandum, the appellate Court since issued notice in the appeal as well as on the delay condonation application, the appellate Court did no wrong in passing the order. Consequently, there is no illegality in the order of the revisional Court vide Annexure-9 also. 5. In producing the lower courts records, learned State Counsel also contended that in entertaining the appeal memorandum, the appellate Court since issued notice in the appeal as well as on the delay condonation application, the appellate Court did no wrong in passing the order. Consequently, there is no illegality in the order of the revisional Court vide Annexure-9 also. 5. Considering the contentions raised by the respective parties appearing in the matter and from perusal of the impugned order under Annexure-7 to this petition, this Court finds that the appellate authority condoned the delay in absence of the petitioner on the same day he took up the appeal on merit which again in absence of the present petitioner who was the respondent therein. From the case record produced by the learned State Counsel, this Court finds the appellant filed appeal challenging the order of the Tahasildar in M.A. No.3/2009 and since there was delay, also filed an application for condonation of delay. From perusal of the order sheet of the appellate authority, it also discloses that considering that there is delay in filing the appeal, the appellate authority issued notice in the matter of condonation of delay as well as on the merit of the case. Therefore, there is no dispute that the petitioner has not been noticed. Now the question involved in this matter, remains to be adjudicated upon is that as to when the appeal was required to be taken up for consideration of the condonation of delay application, whether the appellate authority is justified in proceeding with hearing of the main matter on merit? This Court is of the view that since the appeal was filed with delay and the memorandum of appeal was accompanied by a petition for condonation of delay, the Appellate Authority should not have issued notice in both on condonation of delay and also on merit of appeal. Law is well settled that so long as the delay is not condoned, there is no appeal existing in the eye of Law. Law is well settled that so long as the delay is not condoned, there is no appeal existing in the eye of Law. Further looking to the impugned order, this Court also observes that the present petitioner i.e. the respondent therein was also not there at the time of consideration of the delay condonation application, thus even though he had filed a show cause to the delay condonation application and looking to the records, there is no doubt that the respondent was maximum prepared to be present in the Court on the effective date for the purpose of consideration of the delay condonation application and since the Court found the respondent was absent, therefore, on condoning the delay there may not be any problem but since the delay was condoned without participation of the respondent therein, the Court could have adjourned the appeal at least to one more date affording opportunity to the parties for hearing of the case on the merit. 6. Under the circumstances, though this Court finds the appellate authority did no wrong in deciding the question of condonation of delay but went wrong in deciding the matter on merit and further, since the matter has been decided in absence of the respondent, the impugned order under Annexure-7 is also otherwise not sustainable. Consequently, for the observations made hereinabove, this Court finds the question raised by the petitioner with regard to the illegal proceeding of the appellate authority in the matter of hearing of the case, has not been also gone into properly by the revisional authority and for which, the observations made by the revisional authority remained contrary to the records of the appellate authority. Under the circumstances, this Court finds the impugned order under Annexure-9 cannot also be sustainable and for which, this writ petition stands allowed and while setting aside the order under Annexures-7 so far the judgment involving merit of the appeal while sustaining the order in Annexure-7, so far it relates to condonation of delay and consequently also set-aside the impugned order vide Annexure-9 and as a result, this Court remits the matter back to the appellate authority for rehearing of the appeal on merit involving the present petitioner proceeding from the stage of condonation of delay. 7. 7. It is further directed that since the appeal is restored, both the parties are restrained from changing the nature of the disputed property till disposal of the appeal and since the order is passed in presence of both the contesting parties, both the parties are directed to appear before appellate authority on 11th of November, 2016 with certified copy of this order and in such event, the appellate authority shall do well in disposing the appeal on merit within two months thereafter. Learned State Counsel is also directed to remit the LCR back to the appellate authority for its proceeding in the appeal and deciding it afresh. 8. The writ petition stands allowed but to the extent indicated hereinabove. Parties to bear their own cost.