Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 556 (ORI)

Subash Ch. Mohapatra v. Surendra Mohapatra

2017-05-09

D.DASH

body2017
JUDGMENT : 1. The appellant as the plaintiff had filed Civil Suit No. 06 of 2003 before the Civil Judge (Jr. Division), Bhanjanagar for declaration of a sale-deed of the year 1967 as void and for permanent injunction as well as possession. The suit having been dismissed, he had filed an appeal under section 96 of the Code of Civil Procedure. The appeal had not been presented within the prescribed period of limitation; there was a delay of 151 days. So, the plaintiff-appellant along with the memorandum of appeal had filed a petition under order 41 rule 3A of the Code read with section 5 of the Limitation Act for condonation of delay. The learned first appellate court after hearing by refusing to condone the delay has rejected the petition which has finally led to the dismissal of the appeal on the ground of delay in filing the same. 2. The second appeal has been admitted on the following substantial question of law:- “Whether the order passed by the lower appellate court in refusing to condone the delay in filing of appeal and dismissing the same without going to decide the appeal on merit, suffers from the vice of perversity since it has been so done being oblivious of the settled position that the expression ‘sufficient cause’ as finds mention in the section 5 of the Limitation Act, 1963 would have been provided with a liberal construction so as to advance substantial justice in the facts and circumstances of the case?” 3. Heard learned counsel for the parties. I have carefully gone through the order dated 07.11.2007 passed by the learned Additional District Judge, Bhanjanagar in RFA No. 05 of 2005. 4. It is the case of the plaintiff-appellant who is a school teacher that, since his wife had to undergo medical treatment at Berhampur for quite a long period, there has been the delay in presentation of the appeal which he did soon after recovery of his wife from the illness and sufferings. Therefore, in the process there being delay of 151 days, the same is neither intention nor deliberate and it had occasioned for the reasons beyond his care and control which was also because of said unavoidable circumstance standing on the way. 5. Therefore, in the process there being delay of 151 days, the same is neither intention nor deliberate and it had occasioned for the reasons beyond his care and control which was also because of said unavoidable circumstance standing on the way. 5. The learned first appellate court as is seen from the order has given maximum stress upon the factum of non-filing of medical certificate showing the treatment of the wife of the plaintiff-appellant and non-mentioning of the detail relating to the period of treatment. The delay having been said to be inordinate, the first appellate court has refused to accept the presented explanation as plausible. It is no more res-integra that the expression “sufficient cause” as appearing in section 5 of the Limitation Act has to receive a liberal construction so as to advance substantial cause of justice. So, in order to assess what in a particular case constitutes ‘sufficient cause’ for the purpose of section 5 of the Limitation Act, and accept the same, the court is called upon to take a pragmatic view in so far as the explanations as presented are concerned. However, the explanations must appear somewhat realistic so as not to be excluded from consideration. It has of course to be found at that no gross negligence, deliberate inaction or lack of bonafide gets imputed to the party/parties seeking condonation of delay. 6. In the present case, the plaintiff-appellant having stated about the illness of his wife and treatment thereof during the period, the lower appellate ought not to have held it to be not convincing and termed it as unreasonable merely on account of non-filing of the medical certificate. In the facts and circumstances of the case, it also does not occur to mind as to how and in which way the plaintiff-appellant stood to be benefited by lodging the first appeal late and by resorting to the same, running a serious risk of accepting the verdict of the trial court in non-suiting him. By going through the order of lower appellate court, it is further seen that there has not been a justice oriented approach to the case in hand. By going through the order of lower appellate court, it is further seen that there has not been a justice oriented approach to the case in hand. When there appears no reasonable ground to think that the delay was occasioned by plaintiff-appellant to deliberately gain time, more so, when the delay is not for such a long period; keeping in mind the settled position holding the field, the first appellate court in my considered view should have leaned in favour of acceptance of the explanation for the delay instead of refusing to do so by taking an adverse view for non-production of the medical certificate and non disclosure of the period of treatment of the wife of the plaintiff-appellant. 7. In the wake of aforesaid discussion and reasons, the substantial question of law is hereby answered in favour of the appellant. Having said this, while setting aside the order of the learned Addl. District Judge, Bhanjanagar, dated 07.11.2007 passed in R.F.A. No. 05 of 2005, at this stage upon consideration of the submissions made and viewing the age of the litigation, it is felt proper to direct the learned Additional District Judge, Bhanjanagar to take up the hearing of the first appeal for its expeditious disposal in accordance with law preferably within a period of four months with effect from 15.05.2017, on which date the parties are directed to appear before the lower appellate court to receive further instruction. 8. The appeal stands allowed with the above contained direction. There shall be no order as to cost.