Dismissed¶33

Nityananda Swain v. State of Orissa

Orissa HC4 Dec 2024LAA/40/2015

Case brief

AI extract

What is this about?

High Court of Orissa at Cuttack; LAA No.40 of 2015; Misc. Case No.131 of 2015; condonation of delay; delay of 3 years 301 days; land acquisition appeal; L.A. Case No.71 of 2005; review petition I.A. No.61 of 2011 disposed 04.05.2015; Civil Judge (Sr. Division) Athgarh; enhancement of compensation; Shivom Minerals Ltd. v. Bajrang Metalics Ltd.; AIR 2024 Ori 17; 2024 (I) OLR 17; section 14 Limitation Act; Justice Sanjay Kumar Mishra; I.A. and Appeal dismissed; order dated 04.12.2024.

What did the court decide?

Applying the settled position of law relied upon from Shivom Minerals Ltd. v. Bajrang Metalics Ltd. (AIR 2024 Ori 17 : 2024 (I) OLR 17), this Court was not inclined to condone the delay of 3 years 301 days in filing the appeal. ¶32

Nityananda Swain Vs State of Orissa — Orissa HC (2024) — LawSathi Research

¶1

IN THE HIGH COURT OF ORISSA AT CUTTACK

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LAA No.40 of 2015

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Nityananda Swain

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Appellant

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Mr. K. Panigrahi, Advocate

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-versus-

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State of Orissa & ors. …. Respondents

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Mrs. U. Padhi, ASC Mr. A. Pattnaik, Advocate (for Res No.3)

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CORAM: JUSTICE SANJAY KUMAR MISHRA

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ORDER

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04.12.2024 LAA No.40 of 2015 & Misc. Case No.131 of 2015

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Order No.

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14.

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This matter is taken up through hybrid mode.

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2. As per the report submitted by the Stamp Reporter, there is a delay of 3 years 301 days in presenting the Memorandum of Appeal.

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3. This application for condonation of delay has been filed on the ground that after disposal of the L.A. Case No.71 of 2005, the Appellant preferred a review petition vide I.A. No.61 of 2011, which was disposed of on 04.05.2015. The certified copy of the said order was made ready and delivered to the Appellant on 10.07.2015. Thereafter the Appellant became ill and bed ridden and was suffering from typhoid from

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15.07.2015 to 25.07.2015. Thereafter the Appellant came to Cuttack and the Appeal was made ready on 07.08.2015 and then the Appellant could able to file the present Appeal.

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4. Opposing to such prayer made in the I.A., an objection has been filed by the Respondent No.3. Paragraph Nos.3 & 4 of the said objection, being relevant , are extracted below:-

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“03. That the Petitioner as the Appellant has claimed enhancement of the amount of compensation awarded by the learned Sr. Civil Judge, Athgarh in L.A Case No. 71 of 2005 and notably has stated as follows in the memorandum of appeal.

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“Being aggrieved by the Judgment dated 12.07.2011 passed in L.A. Case No. 71 of 2005 and order dated 04.05.2015 passed in I.A. Case No. 61 of 2022, arising out of L.A. Case No. 71 of 2005, by the learned Civil Judge (Sr. Division), Athgarh, the appellant begs to prefer this appeal following amongst others.”

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From a plain reading of the quoted portion, it appears that there is no room for the condonation of delay.

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That there is no scope to entertain the appeal which has become time barred. Delay of about 3 years and 301 days have occurred in filing of the appeal.”

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5. To substantiate the stand taken in the Objection, learned Counsel for the Respondent No.3 files the Judgment of this Court reported in AIR 2024 Ori 17: 2024 (I) OLR 17 (Shivom Minerals Ltd. Vs. Bajrang Metalics Ltd.) . Paragraph No.9 of the said Judgment,

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Page 2 of 3

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being relevant, is reproduced below:-

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“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.

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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.

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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

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Page 3 of 3

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(Defendant) having resorted a legal remedy of seeking review as available at his option when 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”.

¶31

(Emphasis Supplied)

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6. In view of the settled position of law, this Court is not inclined to condone the delay.

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7. Accordingly, the I.A. stands dismissed. As a consequence thereof, the Appeal also stands dismissed.

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(S. K. MISHRA) JUDGE

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Banita

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Signature Not Verified

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Digitally Signed Signed by: BANITA PRIYADARSHINI PALEI Designation: SR. STENOGRAPHER Reason: AUTHENTICATION Location: HIGH COURT OF ORISSA, C UTT ACK Date: 05-Dec-2024 15:25:54

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Page 4 of 3

Nityananda Swain v. State of Orissa

Case brief

What is this about?

What did the court decide?

Nityananda Swain v. State of Orissa

Case brief

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