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2017 DIGILAW 22 (ORI)

Narayan Prasad Malla v. Guru Ch. Sahoo

2017-01-03

BISWANATH RATH

body2017
JUDGMENT : Biswanath Rath, J. These writ petitions have been filed assailing the impugned order vide Annexure-1 passed by the Commissioner, Consolidation, Orissa Cuttack in Revision Case No.245 of 1991 with finding on both the questions of substitution as well as on merit of the case. 2. In assailing the impugned order, learned counsel for the petitioners referring to the discussions made in the impugned order and the pleadings in the writ petition submitted that the R.P. Case was posted to 5.3.1997 only for consideration of the substitution application along with application for setting aside the abetment as well as the application for condonation of delay and the argument was also made by both the sides on the question of substitution, setting aside the abetment and condonation of delay. Consequently an issue was also framed in the matter of acceptance of the substitution. Under the circumstance, Sri Routray, learned counsel for the petitioner contended that since the matter was taken up on the question of substitution, there was no question for considering the merit of the case without hearing to either side on merit and thus, claimed that the impugned order is bad in law and liable to be set aside. 3. Learned State counsel in opposing the contentions raised by the learned counsel for the petitioners submitted that the matter has been finally concluded on both the substitution matter as well as on merit of the case and from the discussions, it appears that the authority has taken into consideration the materials available on record and decided the matter finally. It is claimed that for the reasons assigned therein, there is no scope for interfering in the same. 4. Considering the above and on perusal of the impugned order, this Court finds, the entire endeavor of the authority passed the order under Annexure-1 in paragraph nos.1, 2, 3 & 4 all based on the submissions made in relation to the substitution, setting aside the abetment and an application for condonation of delay. From the observations of the authority, it appears that had the petitioners got merit in the matter of setting aside the abetment as well as the condonation of delay, the decision would have been otherwise. From the observations of the authority, it appears that had the petitioners got merit in the matter of setting aside the abetment as well as the condonation of delay, the decision would have been otherwise. It also clearly appears from the observations of the authority that the authority on its own volition entered into the merit of the case while considering the reasons assigned for filing the substitution petition along with the application for setting aside the abetment and the condonation of delay. From perusal of the applications relating to substitution, it further appears that the petitioners had sufficient reason in filing the substitution application along with an application for setting aside the abatment and condonation of delay. The petitioner has also clear support of a decision of the Hon’ble Apex Court as reported in AIR 1987 S.C. 1353 . For entering into the merit in absence of giving opportunity of hearing to the petitioners, the impugned order cannot be sustained. Under the circumstances, this Court while interfering in the impugned order sets aside the same and as a consequence, the applications for substitution, for setting aside the abatement and for condonation of delay stand allowed subject to petitioners’ paying a cost of Rs.1,000/-(Rupees One thousand) to the private opposite parties within a period of two weeks hence. The merit involved in the matter will be decided afresh after affording opportunity of hearing to the petitioners. The entire exercise be concluded within a period of three months from the date of communication of this order. 5. The writ petitions stand allowed but however, subject to the cost indicated hereinabove.