Allowed

Sarat Bhoi v. State of Odisha

Orissa HC23 Mar 2023CMAPL/60/2023

Case brief

AI extract

What is this about?

The Court disposed of two applications regarding restoration of a Second Appeal dismissed for non-prosecution. It condoned the delay in filing the condonation application and restored the Second Appeal to the file, directing a fresh listing. Both decisions were based on the ill-health and death of the original counsel who was unaware of the dismissal.

What did the court decide?

Condonation of delay allowed with a cost of Rs. 1,000; the Second Appeal No.550 of 2004 is restored and listed forthwith.

Sarat Bhoi Vs State of Odisha — Civil Procedure and Limitation | Orissa HC (2023)

¶1

IN THE HIGH COURT OF ORISSA AT CUTTACK

¶2

CMAPL No. 60 of 2023

¶3

Sarat Bhoi and others

¶4

…. Petitioners

¶5

Mr. B.N. Bhuyan, Advocate

¶6

-versus-

¶7

State of Odisha.

¶8

Opposite Party

¶9

Mr. Tarun Pattnaik, ASC

¶10

CORAM: JUSTICE A.K.MOHAPATRA

¶11

ORDER 23.03.2023

¶12

Order No.

¶13

I.A. No.23 of 2023

¶14

1. This matter is taken up through Hybrid Arrangement (Virtual/Physical Mode).

¶15

This is an application for condonation of delay in filing the CMAPL for restoration of the Second Appeal No.550 of 2004 which was dismissed for non-appearance vide order dated 20.01.2017.

¶16

Heard the learned counsel for the parties.

¶17

Learned counsel for the Petitioners submitted that after the Second Appeal was dismissed for non-prosecution, the counsel for the Petitioners tried to contact the Petitioners, however, he could not contact them. He further submitted that the Petitioners belonged to Scheduled Tribe community. It is further contended that the Appellant in the Second Appeal, namely, Kanthia Bhoi

¶18

Page 1 of 4

¶19

died on 15.06.2021. Since the said Kanthia Bhoi while looking after the case, counsel for the Petitioners could not contacted the Appellant as he has ailing and confined to bed prior to his death on 15.06.2021. Learned counsel for the Petitioners submitted that although he came to learn about the dismissal of the Second Appeal for non-prosecution, however, he could not file the application for restoration immediately.

¶20

Learned counsel for the State, on the other hand, submitted that the delay has not been explained properly. He further submitted that in an application for condonatin of delay, each day delay be explained meticulously and since the delay has not been explained properly, the condonation application filed of the Limitation Act is liable to be dismissed.

¶21

Having heard the learned counsel for the parties and on careful consideration of the materials placed before this Court and upon considering the contention raised by the learned counsel for the parties, this Court is inclined to allow the interlocutory application.

¶22

Accordingly, the delay in approaching this Court by filing CMAPL is condoned subject to the Petitioners paying a cost of Rs.1,000/- (Rupees one thousand) to the Advocates’ Welfare Fund of the Orissa High Court Bar Association

¶23

The I.A. is, accordingly, disposed of.

¶24

CMAPL No.60 of 2023

¶25

This is an application for restoration of the R.S.A. No.550 of 2004, which was preferred against the judgment dated

¶26

Page 2 of 4

¶27

21.10.2003 and the decree dated 04.11.2003 passed by the learned Additional District Judge, First Track Court No.II, Puri in Title Appeal No.10/51 of 2002/1992 confirming the judgment and decree passed by the Additional Civil Judge (Sr. Division), Puri in T.S. No.87/287 of 1998/1995.

¶28

Learned counsel for the Petitioners submits that the Second Appeal which was listed before a coordinate Bench on 20.01.2017 was dismissed due to non-prosecution. It is further contended by the learned counsel for the Petitioners that none appearance in Court on that day was neither deliberate nor intentional. The conducting counsel Mr. P.K Mishra was completely bed ridden since 2016 due to his illness and ultimately passed away in 2020. Because of the illness of the above said conducting counsel, the case remained unattended and, accordingly, the Second Appeal has been dismissed due to nonprosecution.

¶29

Learned counsel for the State, on the other hand, submitted that the restoration application has not been filed within the period of limitation. He further submitted that the conducting counsel or any other counsel appeared on his behalf had prayed for time before the Court. Therefore, on such ground, learned counsel for the State opposed the CMAPL.

¶30

Heard the learned counsel for the parties and upon a careful consideration of the submission made by the learned counsel for the Petitioners, particularly keeping in view the fact that the conducting counsel, namely, Mr. P.K. Mishra was ailing since 2016 and passed away in the year 2020 and during such

¶31

Page 3 of 4

¶32

illness, he was completely bed ridded and was not attending the Court, and further such fact could not be intimated to the Petitioners, therefore, none had appeared on behalf of the Appellant on 20.01.2017 when the matter was called.

¶33

Considering the submissions of the learned counsel for the parties, the CMAPL is allowed.

¶34

The R.S.A. No.550 of 2004 is restored to its file.

¶35

Registry is directed to list the R.S.A. No.550 of 2004 before the appropriate Bench forthwith.

¶36

Debasis

¶37

(A.K. Mohapatra)
Judge

¶38

Page 4 of 4

Sarat Bhoi v. State of Odisha

Case brief

What is this about?

What did the court decide?

Sarat Bhoi v. State of Odisha

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Ch. Durgamadhav Prusty Vs State of Odisha

Md. Sams Tabrez Vs State of Odisha

Jagabandhu Adha Vs State of Odisha

Surendra Mohankudo Vs State of Odisha

Siba Charan Beura Vs State of Odisha

G.Nageswar Rao Vs N.Jagannath Rao