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2017 DIGILAW 833 (ORI)

Banchhanidhi Dakua v. H. S. C. L. Limited

2017-08-04

A.K.RATH

body2017
JUDGMENT : Dr. A.K. Rath, J. By this application under Article 227 of the Constitution of India, challenge is made to the order dated 22.6.2015 passed by the learned 1st Additional District Judge, Rourkela in R.F.A. No.06 of 2015, whereby and whereunder learned appellate court dismissed the appeal for non-depositing of security amount of Rs.2 lakhs. 2. The petitioner was an employee of the opposite party. He was residing in a quarter provided by the employer. He retired from services on 31.01.2001. Since he did not vacate the quarter, the opposite party as plaintiff instituted C.S. No.114 of 2009 in the court of the learned Civil Judge (Sr. Divn.), Rourkela for eviction and recovery of house rent impleading the petitioner as defendant. The defendant filed a counter claim. The suit was decreed. Learned trial court directed the defendant-petitioner to deliver the vacant possession of the premises and to pay Rs.3,87,181/-which includes arrear house rent, electricity charges and damages within three months. He filed R.F.A. No.6 of 2015 before the learned Additional District Judge, Rourkela. There was delay in filing the appeal. An application for condonation of delay was filed. On 16.5.2015, the learned 1st Additional District Judge, Rourkela directed the petitioner to furnish a bank security of Rs.2 lakhs as a condition precedent for admitting the appeal, failing which the appeal shall stand dismissed. Since the amount was not deposited by 22.6.2015, the appeal was not admitted. This petition seeks to lacinate both the orders. 3. Heard Mr. B.S. Rayaguru, learned counsel for the petitioner and Mr. S.K. Sarangi, learned counsel for the opposite party. 4. Mr. Rayaguru, learned counsel for the petitioner submitted that the appeal is a valuable right. For non-furnishing of security amount, the court may not grant stay of execution, but cannot dismiss the appeal. He relied on the decision of the apex Court in the case of Union of India vs. K.V. Lakshman and others, (2016) 13 SCC 124 and this Court in the case of Jugal Kishore Meher vs. Bijaya Kumar Agarwalla, 80 (1995) C.L.T. 978. 5. Per contra, Mr. Sarangi, learned counsel for the opposite party submitted that there was delay in filing the appeal. In view of the same, learned appellate court directed the petitioner to furnish a bank security of Rs.2 lakhs within a stipulated time. The petitioner failed to comply the said order. 5. Per contra, Mr. Sarangi, learned counsel for the opposite party submitted that there was delay in filing the appeal. In view of the same, learned appellate court directed the petitioner to furnish a bank security of Rs.2 lakhs within a stipulated time. The petitioner failed to comply the said order. Learned appellate court has rightly not admitted the appeal. He further submitted that in a money decree, the court can grant stay of execution on imposition of certain conditions. 6. In Union of India (supra), the apex Court held thus: “21. It is a settled principle of law that a right to file first appeal against the decree under Section 96 of the Code is a valuable legal right of the litigant. The jurisdiction of the first appellate court while hearing the first appeal is very wide like that of the trial court and it is open to the appellant to attack all findings of fact or/and of law in first appeal. It is the duty of the first appellate court to appreciate the entire evidence and may come to a conclusion different from that of the trial court. 22. Similarly, the powers of the first appellate court while deciding the first appeal are indeed well defined by various judicial pronouncements of this Court and are, therefore, no more res integra. It is apposite to take note of the law on this issue. 23. As far back in 1969, the learned Judge—V.R. Krishna Iyer, J. (as his Lordship then was the Judge of Kerala High Court) while deciding the first appeal under Section 96 CPC in Kurian Chacko v. Varkey Ouseph, reminded the first appellate court of its duty to decide the first appeal. In his distinctive style of writing with subtle power of expression, the learned Judge held as under:(SCC On Line Ker paras 13) “1. The plaintiff, unsuccessful in two courts, has come up here aggrieved by the dismissal of his suit which was one for declaration of title and recovery of possession. The defendant disputed the plaintiff’s title to the property so also his possession and claimed both in himself. The learned Munsif, who tried the suit, recorded findings against the plaintiff both on title and possession. But, in appeal, the learned Subordinate Judge disposed of the whole matter glibly and briefly, in a few sentences. 2. The defendant disputed the plaintiff’s title to the property so also his possession and claimed both in himself. The learned Munsif, who tried the suit, recorded findings against the plaintiff both on title and possession. But, in appeal, the learned Subordinate Judge disposed of the whole matter glibly and briefly, in a few sentences. 2. An appellate court is the final court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him and I have no doubt that in the present case the learned Subordinate Judge has fallen far short of what is expected of him as an appellate court. Although there is furious contest between the counsel for the appellant and for the respondent, they appear to agree with me in this observation.” (emphasis supplied)” 7. In Jugal Kishore Meher (supra), this Court held: “4. Although Order 41, Rule 1, sub-rule (3), C.P.C. has laid down that the “appellant shall, within such time as the appellate court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit” it has not provided for consequences of non-compliance with the said provision. The consequence has been indicated in Order 41, Rule 5, sub-rule (5). It has been laid down therein “Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in sub-rule (3) of rule 1, the Court shall not make an order staying the execution of the decree.” It is obvious from the language of Order 41, Rule 5, sub-rule (5) that the only consequence contemplated is that in case of failure to make the deposit or to furnish the security as provided in sub-rule (3) of rule 1, the Court shall not grant stay of the execution of the money decree. xxx xxx xxx 6……………For the purpose of enforcement of its order Court cannot invent a penal consequence not provided for in the statute. Moreover, Order 41 of the C.P.C. has expressly prescribed the consequence in Rule 5(5) and the Court’s power has been accordingly circumscribed. Court’s power cannot extend beyond the limit set out by the provisions of the Act. xxx xxx xxx 6……………For the purpose of enforcement of its order Court cannot invent a penal consequence not provided for in the statute. Moreover, Order 41 of the C.P.C. has expressly prescribed the consequence in Rule 5(5) and the Court’s power has been accordingly circumscribed. Court’s power cannot extend beyond the limit set out by the provisions of the Act. In case it is found that the judgment-debtor’s conduct amounts to an undertaking before the Court for depositing the decretal amount he becomes liable to be appropriately dealt with under the provisions of the Contempt of Courts Act for any willful disregard of his undertaking before the Court. Non-compliance with the direction of the Court under Order 41, Rule 1(3) by itself does not invite any consequence other than that mentioned in Rule 5(5) of Order 41. 7. The legislative history and the express language of the relevant provisions of the Civil Procedure Code make it quite clear that the court of appeal below had no jurisdiction to dismiss the appeal for non-compliance with sub-rule (3) of Rule 1 of Order 41, C.P.C. Accordingly the impugned order is liable to be set aside.” (emphasis laid) The ratio in the case of Jugal Kishore Meher (supra) applies with full force to the facts of the case. 8. The logical sequitur of the analysis made in the precedent paragraphs is that if the appellant fails to make the deposit as provided in sub-rule(3) of Rule 1 of Order 41 C.P.C., the court shall not grant stay of execution of money decree. For enforcement of its order, the court cannot invent a penal consequence not provided for in the statute. The power of court is circumscribed under Rule 5(5) of Order 41 C.P.C. Non-compliance of the direction of the court made under Rule 1 (3) of Order 41 C.P.C. by itself does not invite any consequence. Learned appellate court dehors its jurisdiction in dismissing the appeal for non-compliance of the said provision. 9. In wake of aforesaid, the impugned orders are quashed. Learned appellate court shall proceed with the appeal. The petition is allowed. No costs.