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2023 DIGILAW 205 (ORI)

Shivom Minerals Ltd. v. Bajrang Metalics Ltd.

2023-11-13

D.DASH

body2023
JUDGMENT D.Dash, J. The Appellant, by filing this Appeal, under Section 100 of Code of Civil Procedure, 1908 (for short, 'the Code'); has challenged the judgment and decree passed by the learned 1st Additional District Judge, Rourkela in R.F.A. No.30 of 2016. The Respondent herein as the Plaintiff had filed Civil Suit No.116 of 2008 in the Court of Civil Judge, Senior Division, Rourkela arraigning the present Appellant as the sole Defendant. The suit was decreed in part. The Appellant (Defendant) by way of mandatory injunction was directed to remove their materials as per the list furnished in the plaint from the particular site at their own cost. The Respondent (Plaintiff) being not satisfied with the said part decree passed in the suit, carried the Appeal under section 96 of the Code. The First Appellate Court while allowing the Appeal in part, directed the Appellant (Defendant) to remove the materials, equipments, fittings and iron ore kept in the premises of Respondent (Plaintiff) within two months, failing which, to be so removed through the process of the Court and the Appellant (Defendant) has been directed to pay damage of Rs.5000/- per day till actual removal on failure to remove within two months. 2. The Appellant (Plaintiff) after the judgment and decree dated 31.08.2017 and 14.09.2017 respectively passed in the First Appeal filed the Review Application under order 47 Rule 1 of the Code for review of the said Judgment and decree before that First Appellate Court which was numbered as CMA No.03 of 2018. The Review Application stood dismissed on 18.07.2022. The Appellant (Defendant) after being unsuccessful in the review application, has filed the present Second Appeal on 29.09.2022. For the delay of 1765 days (4 years 10 months 5 days) in filing this Second Appeal challenging the judgment and decree passed in the First Appeal, an application under section 5 of the Limitation Act has been filed seeking condonation of delay. 3. Mr. P. K. Rath, learned Senior Counsel for the Appellant and Mr. P.K. Nayak, learned counsel for the Respondent. The two legal points for determination had been formulated and those are:- i.Whether the Appellant having filed a petition under Order 47 of the Code to review the judgment and decree passed in First Appeal under section 96 of the Code can again present an Appeal under section 100 of the Code? P.K. Nayak, learned counsel for the Respondent. The two legal points for determination had been formulated and those are:- i.Whether the Appellant having filed a petition under Order 47 of the Code to review the judgment and decree passed in First Appeal under section 96 of the Code can again present an Appeal under section 100 of the Code? ii.Whether the Appellant can by filing this Appeal under section 100 of the Code after disposal of the review petition by the First Appellate Court seek exemption of that period spent after review for condonation of delay? 4. Mr. Rath, learned Senior Counsel for the Appellant (Defendant) submitted that as provided in Order 47 of the Code what it is necessary that on the date of presentation of the said petition for review, the party seeking the review must not have filed an Appeal challenging the judgment and decree or order if so, appealable. He submitted that there is no legal bar that the party aggrieved by the judgment and decree after being unsuccessful in the review cannot file the regular Appeal. He further submitted that in the case at hand when the Appellant (Plaintiff) was pursuing his remedy as provided in law by filing review petition and thereafter has filed this Appeal, the delay in filing the Appeal thus being not intentional or deliberate but because of the pendency of the review petition, which was not within the care and control of the Appellant (Defendant), the delay for the period need be condoned. 5. Mr. Nayak, learned Counsel for the Respondent (Plaintiff) while submitting that the Appeal after disposal of the review petition is not maintainable contended that the Appellant (Defendant) having chosen to file the review petition, which is one of the remedies available as per law having spent such a long period in that review, the said period spent in review proceeding is not condonable for the purpose of regular Appeal on the grounds as projected. 6. Keeping in view the submissions made, I have carefully perused the case record as placed. 7. As provided in Order 47 Rule 1 of the Code, a person considering himself aggrieved by a judgment and decree or order from which the Appeal is allowed but has not been preferred is permitted to file a review petition for certain reasons as prescribed therein. 7. As provided in Order 47 Rule 1 of the Code, a person considering himself aggrieved by a judgment and decree or order from which the Appeal is allowed but has not been preferred is permitted to file a review petition for certain reasons as prescribed therein. Thus it appears on a plain reading of the provision contained in Order 47 Rule 1 of the Code that when the petition for review is filed, no Appeal be pending on that day and then only it is permitted for the Court to dispose of the petition for review on merit. Said provision does not however bar the filing of an Appeal by the said review Petitioner, subsequent to the filing of the review petition. In the event, after filing of the review petition, an appeal is filed, the review petition would survive till disposal of the Appeal and can well be disposed of during pendency of the Appeal. But if the Appeal is disposed of during pendency of the review petition, then said review petition would no more survive for consideration since the judgment and decree or order sought to be reviewed has already merged with the judgment and decree or order of the Superior Appellate Court which leaves no scope for that Court passing the impugned judgment and decree or order to review any more which may amount to set aside the judgment and decree or order passed by the Appellate Court. If the Appeal is on Board notwithstanding its pendency, the review petition can well be disposed of on merit within its scope and ambit as provided in law. 8. After disposal of the First Appeal, two courses were available to the Appellant (Defendant) to challenge the said judgment and decree passed therein. One is by filing the Second Appeal and the other is by seeking review. The Appellant (Defendant) availed the course of seeking review of the judgment and decree passed by the First Appellate Court. After dismissal of the review petition, the instant Second Appeal has been filed challenging the Judgment and decree passed by the First Appellate Court which being sought to be reviewed before the Court, have been refused to be so reviewed. Thus, there has been delay of 1765 days (4 years 10 months 5 days) in filing the present Second Appeal. 9. Thus, there has been delay of 1765 days (4 years 10 months 5 days) in filing the present Second Appeal. 9. It is the settled position of law that if the party files an Appeal beyond the period of limitation and after expiry of the period of limitation specified therefor, when he satisfies that he had sufficient cause for not preferring the Appeal within the said period, the Court would lean in favour of condoning the delay having a liberal approach keeping the ultimate objective in mind that a party causing the delay does not make any substantial gain and also that finality of a lis on merit has the preference over the disposal on technical ground. In the case at hand, when the Appellant (Defendant) had both the options before him to file the review petition and the Appeal, the Appellant (Defendant) having opted to file the review petition and pursued the same till its disposal on merit and then being unsuccessful in that review petition when has filed the Second Appeal, the period spent after review move cannot be exempted by employing the provision of section 14 of the Limitation Act which comes into play under certain eventualities but certainly not like the present one. It is not the law that filing of a review petition arrests the running of the period of limitation for first appeal or second appeal till its disposal and it starts only after disposal of the review petition. Therefore, the answer to the point that whether the Appellant (Defendant) can be said to have been prevented by the sufficient cause by not preferring the Appeal during the prescribed period, therefor, and filing the same after such long period spent in the review proceeding is a big 'NO'. The Appellant (Defendant) having resorted a legal remedy of seeking review as available at his option when as as per my earlier view, he could have very well filed an appeal thereafter, but has not done; thus he having waited to take the chance in review petition and then being unsuccessful therein, having filed this second Appeal, it cannot be said that he was prevented by sufficient causes from filing this Appeal within the time prescribed, therefor and in filing this Appeal after lapse of 4 years 10 months and 5 days. 10. The point having answered as above, this Court refuses to condone the delay. 10. The point having answered as above, this Court refuses to condone the delay. The Interlocutory Application is accordingly dismissed. 11. Consequent upon the dismissal of the interlocutory application in refusing to condone the delay in filing the present second Appeal; the same stands dismissed. While passing order as to cost as ordained under law, this Court is of the view that the Appellant (Defendant) ought to be saddled with the cost. However, when it is seen that the Appellant (Defendant) has deposited the Court fees of Rs.2,68,485/- for the purpose of this Appeal and the Appeal has been dismissed without even being taken up for hearing on admission, this Court, instead of saddling the Appellant (Defendant) with further cost, directs the forfeiture of the same towards the cost. Accordingly, it is directed that the Court fees paid be taken to the Account of the Orissa State Legal Services Authority. The Registry is to issue necessary certificate to the concerned Collector for payment of the said amount spent for purchasing the Court fees for this Appeal which is dismissed for noncondonation of delay, excluding the said percentage of it as is done and permissible in case of refund as provided in law to the Secretary, Orissa State Legal Services Authority for onward action in that regard.