Court dismissed petition for revival of withdrawn second appeal and condonation of delay application filed by a son, rejecting his medical explanations as unbelievable and reflective of an attempt to act on legal whim.
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MISC. CASE NO. 201 OF 2016
05. 10.11.2017: Heard learned counsel for the petitioner-appellant no.2 and th
e learned counsel for the opposite party-respondents.
Perused the petitions and the counter affidavit filed by the opposite parties nos. 1(a)
to 1(g).
The appellant no.2 has filed a petition for review of an order dated 30.06.2011 passed
in S.A. No. 65 of 2000 with a petition for condonation of delay of 1723 days i.e. 4 years, 8
months and 23 days.
2. The respondent no.1 as the plaintiff had filed the suit for partition against the appe
llants of this second appeal arraigning them as defendant nos. 1 and 2 with other 16 defendant
s therein. The present petitioner is the defendant no.2 and the defendant no.1 is his mother.
They are the wife and son of Upendra whereas defendant nos. 3 to 5 are the three daughters and
the defendant no. 6 is another son of Upendra.
The suit stood dismissed by the judgment dated 24.11.1988. So the unsuccessful plaintiff
filed the first appeal. In that appeal, these defendant nos. 1 and 2 contested and so also th
e defendant nos. 3,6 and 15. Said appeal was allowed on 04.11.1999. The plaintiffs suit has be
en decreed holding the plaintiff, his brothers Sankar and Upendra, (the predecessor-in-interes
t of these defendant nos. 1 to 6) together with their mother namely, Padmabati to be having 1/
4th share over Kha and Ga schedule property and as Upendra had predeceased Padmabati, the plai
ntiff and Shankar have been found entitled to 49/160th share and these defendant nos. 1 to 6s
entitlement was declared to be 44/160th share.
The second appeal has been filed by defendant nos. 1 and 2. The appeal had been admitted
on 05.05.2000.
Towards the first quarter of the year 2011, an application being filed by the appellants
(defendant nos. 1 and 2) for withdrawal of the appeal supported by the affidavit, it was numb
ered as Misc. Case No. 11 of 2011. Upon hearing the learned counsel for the parties, the secon
d appeal was dismissed as withdrawn on 30.06.2011. This state continued for more than four and
half year.
3. On 03.03.2016, the appellant no.1 who is his mother and who was together all along in
the suit, first appeal and in this second appeal with her son, the other appellant, filed a pe
tition for recall of the said order dated 30.06.2011 by which the appeal had been dismissed as
withdrawn. That was numbered as Misc. Case No. 28 of 2016.
The ground taken therein is that the appellant no. 2 was suffering from various fatal ai
lments and for that he had developed unsoundness of mind. In that mental condition, he instruc
ted his lawyer to withdraw the second appeal and that has been so carried out. But it was neve
r with the consent of the appellant no. 1 and she was not made aware of it. It is said that wh
en she came to Cuttack in the year 2016, and met her lawyer, she could know that the appeal ha
s been dismissed as withdrawn although she was all along under the impression that the appeal
was sub-judice.
That petition has been rejected by a reasoned order dated 29.03.2016.
4. The present application for review is the next round of attempt by the appellant no.2
(defendant no.2) for revival of the second appeal.
The grounds taken by the appellant no.2, the son of the appellant no.1 in the present ap
plication are extracted in verbatim as under:-
6. That during pendency of the second appeal the present review petitioner/appellant no.2
in S.A. No. 65 of 2000 felt ill with various ailments. The medical reports are annexed herewit
h as Annexure-1 collectively for kind perusal of this Honble Court.
7. That in a bad condition the present review petitioner felt that he will never become c
ure with a hopeless and in absent mind thinking that he will not in a position to pay the fees
of the lawyer when the lawyer asked him by phone what will be the recourse and fate of this c
ase of handling of the lawyer he unhappily advised the lawyer under a tremendous mental condit
ion and stated that since I am not in a position or I will be able to payment of your fees or
I will become cure suggested to withdraw the case.
8. That due to the blessing of the God when he become fully cure thought for survival and
survival with his family members inquired about the fate of his case by that time an order of
withdrawal is being passed, against which a misc. case was preferred for restoration of the d
isposal case which was ultimately dismissed on 29.03.2016.
The following facts stated in the counter affidavit remaining uncontroverted being very
important for the purpose need to be placed.
After the dismissal of the second appeal in the pending final decree proceeding, this pe
titioner had filed detail objection for separate allotment. He had participated in the hearing
and more importantly had challenged the order passed therein by carrying an application under
Article 227 of the Constitution to this Court which being numbered as CMP No. 866 of 2014 ha
s been disposed of on 08.12.2015.
5. All these above offered explanations being cumulatively taken into consideration with
the surrounding circumstances clearly appear to be cock and bull story as to have been present
ed for the purpose and those are wholly irreconcilable looking at the later conduct of the app
ellant no. 1. Moreover, these applications though are after lapse of 4 years 8 months and 23 d
ays from the date of the order, have been filed just about fifteen days after the rejection of
the petition filed by the mother, the appellant no.2 for the same relief although under diffe
rent nomenclature.
A party is not to act in the legal proceeding according to his own whim and sweet will a
nd then after getting the order, next moment by projecting some coined story is not permitted
to move for getting the action annulled.
In the instant case, the explanations are wholly unbelievable and that too being so proj
ected after a period of more than four and half years in second round, on the failure of first
.
These applications are thus not liable to be entertained.
In view of the aforesaid, I do not find any justification either in fact or in law to en
tertain these applications for condonation of delay in filing the review petition as well as t
he review petition as those do not merit acceptance.
The Misc. Case as well as the review application are accordingly dismissed.
D. Dash, J.
Narayan
= 5 =
2 issues framed by the court
Whether an application for revival of a withdrawn appeal can be entertained after a condonation of delay period exceeding four and a half years.
Whether the explanation regarding withdrawal of appeal due to unsoundness of mind constitutes a sufficient ground for accepting the applications.
Defendant no.2 (Appellant no.2)
Defendant no.1 (Appellant no.1)
Plaintiff (Respondent)
D. Dash
As recorded by the court registry
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