Plaintiff sought condonation of a 2305-day delay in filing his second appeal against dismissal of his title suit. The court found the explanations vague and uncondonable, dismissed the delay application, and consequently the appeal.
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IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.31 of 2016 &
Misc. Case No.1078 of 2016
Anil Kumar Patra …. Appellant
Mr. Bibudhananda Mohapatra, Advocate Mr. K. S. Sahu, Advocate Mr. L. D. Achari, Advocate -versus- Smt. Sabita Sahu & Others …. Respondents
CORAM: MR. JUSTICE D.DASH ORDER Order 16.01.2024 No. 05. 1. This matter is taken up by hybrid arrangement
(D. Dash) Judge.
ORDER 16.01.2024
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31.08.2009 and 14.09.2009 respectively passed by the learned Ad-hoc Additional District Judge, FTC-1, Phulbani in RFA No.12/33 of 2006-09.
The Appellant, as the Plaintiff, had filed C.S. No.13 of 2004 praying for declaration of his right, title, interest over the suit land and recovery of possession of the same from the Respondents 1 & 2 arraigned as Defendants 1 & 2 respectively. The suit having been dismissed by judgment dated 25.02.2006 followed by decree drawn on 06.03.2006, the present Appellant, being the unsuccessful Plaintiff, had carried the Appeal under section 96 of the Code.
The First Appeal stood dismissed by judgment and decree dated 31.08.2009 & 14.09.2009 respectively.
The present Second Appeal has been filed on 22.01.2016. Thus, there being a delay of 2305 days (6 years 3 months 15 days) an application under section 5 of the Limitation Act has been filed by the Appellant (Plaintiff) for condonation of said delay. It is stated that the Appellant (Plaintiff), in order to earn his livelihood, was going to different places and he was hardly getting the scope to come to his native place and be in touch with his family members as well as the lawyers. It is further stated that the Appellant (Plaintiff) had no knowledge about the
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disposal of the First Appeal and he was not so informed by his counsel. The Appellant (Plaintiff) came to know about the said dismissal of the First Appeal towards the last part of the year 2014. Accordingly, having asked the counsel to take further step, he left for his work place at Chennai. It is stated that some time in the last part of the year 2015, the Appellant (Plaintiff), could know that no step had been taken by the counsel to move this Court.
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which has been disposed of on contest. The disposal of the First Appeal, having taken place by pronouncement of the judgment on 31.08.2009, the petition is totally silent as to whether on that day or during that period, the Appellant (Plaintiff) was present in his native place or not the First Appeal having been disposed of on 31.08.2009, the Appellant (Plaintiff) coming to say know about the result of the Appeal in the last part of 2014 is per se unbelievable. Further statement of the Appellant (Plaintiff) that in the year 2014, having entrusted the lawyer to carry out further action, his silence till the end of 2015 in not diligently anything about the progress of the matter appears to be a conduct, which is uncondonable. The Appellant (Plaintiff) has not at all been diligent in the matter and as it appears has arise on a fine morning from deep slumber over a period of more than seven years to further continue the lis when in the process a valuable right has accrued in favour of the Respondents (Defendnats).
Even though, the Court takes a liberal view in the matter of condonation of delay, when the period of delay is too long, the striking balance, it has also to look into the fact that on account of that the valuable right accrued in
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favour of the adversity is not taken away so lightly and for that it seeks plausible explanations.
The delay, in the present case, is for a period of 2305 days (6 years 3 months 15 days) and the explanations offered seeking condonation of such long delay are vague and not at all plausible.
(D. Dash) Judge.
Basu
Signature Not Verified
Digitally Signed Signed by: BASUDEV NAYAK Designation: ASSISTANT REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 17-Jan-2024 18:49:36
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1 issue framed by the court
Should the delay of 2305 days in filing the second appeal be condoned under section 5 of the Limitation Act?
3 provisions across 2 enactments
Anil Kumar Patra
Smt. Sabita Sahu
Others
D. Dash
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
