Dismissed¶51

State of Odisha v. Rahisa Khatoon

Orissa HC6 May 2025CMP/454/2025

Case brief

AI extract

What is this about?

Condonation of delay; Section 5 Limitation Act; 389 days delay in filing CMA; restoration of appeal dismissed for default; C.M.A. No.02 of 2020; RFA No.611 of 2017 / RFA No.11 of 2017; T.S. No.65 of 2002; Additional District Judge, Champua; State of Odisha as litigant; gross negligence by government; sufficient cause; liberal vs strict approach; K.B. Lal SLP(C) No.14974 of 2022; Postmaster General v. Living Media India AIR 2012 SC 1506; Raj Kumar Choudhary SLP(C) Diary No.48636 of 2024; Esha Bhattacharjee (2013) 12 SCC 649; Orissa HC CMP No.899 of 2023 (682-day delay); CMP dismissed; no interference with impugned order; no costs.

What did the court decide?

No relief; the CMP stands dismissed and there is no order as to costs. ¶51

State of Odisha Vs Rahisa Khatoon — Orissa HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

No relief; the CMP stands dismissed and there is no order as to costs.

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Issue for consideration

Whether the delay of 389 days in filing C.M.A. No.02 of 2020 (seeking restoration of the appeal in RFA No.11 of 2017) is to be condoned.

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Court's answer

The Court concludes that the learned Court below was perfectly justified in declining to condone the 389-day delay in filing the CMA, and the impugned order calls for no interference; condonation of delay to seek restoration of the appeal in RFA No.11 of 2017 is not entertained.

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Ratio / Principle

A litigant, including a State Government, must be diligent in pursuing litigation; where there is gross negligence, no liberal approach is warranted and the party in default must suffer the consequences.

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Key takeaways

The explanations offered by the State — pendency of approval for payment of ad valorem court fees, the requirement of written orders before officials could act, and the General Election of 2019 — do not amount to sufficient cause and cannot be accepted as explanation enough to condone the default, particularly given the State's knowledge of the 2003 decree via the mutation challenge.ratio¶47

Detailed headnote1 paragraphs

High Court of Orissa at Cuttack (R.K. Pattanaik, J.), in CMP No.454 of 2025, dismissed the State of Odisha's challenge to the order dated 18th November, 2022 of the Additional District Judge, Champua in C.M.A. No.02 of 2020 declining condonation under Section 5 of the Limitation Act for a delay of 389 days in filing the CMA seeking restoration of the appeal (RFA No.11 of 2017, elsewhere recorded as RFA No.611 of 2017) against the ex parte decree of 22nd December, 2003 in T.S. No.65 of 2002. Holding that a litigant including a State Government must be diligent and that gross negligence admits of no liberal approach, the Court found the State's explanations (approval awaited for ad valorem court fees, absence of written orders, General Election 2019) insufficient cause — the appeal itself having been filed 4,926 days late in 2017 against a decree of 2003. Reliance placed on K.B. Lal (Krishna Bahadur Lal) v. Gyanendra Pratap (SLP(C) No.14974 of 2022), the principles summarised in Esha Bhattacharjee (2013) 12 SCC 649, Raj Kumar Choudhury (SLP(C) Diary No.48636 of 2024) and this Court's order in CMP No.899 of 2023; impugned order calls for no interference; no order as to costs.

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CMP No.454 of 2025

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State of Odisha & others

…. Petitioners

Mr. P.K. Ray, AGA

-Versus-

Rahisa Khatoon & others

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…. Opposite Parties Mr. A.P. Bose, Advocate For opposite party No.3

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CORAM:

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MR. JUSTICE R.K. PATTANAIK

ORDER

06.05.2025

Order No.

A fresh Vakalatnama is filed by Mr. Bose, learned counsel for opposite party No.3 today in Court and the same is accepted and taken on record.

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Heard Mr. Ray, learned AGA for the petitioners State and Mr. Bose, learned counsel for opposite party No.3.

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No notices have been issued to other opposite parties.

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Instant petition is filed by the State challenging the impugned order dated 18^th November, 2022 passed in C.M.A. No.02 of 2020 by learned Additional District Judge, Champua arising out of RFA No.11 of 2017 corresponding to T.S. No.65 of 2002-I of the Court of learned Civil Judge (Senior Division), Champua, whereby, an application under Section 5 of the Limitation Act seeking condonation of delay was declined.

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Page 1 of 8

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Mr. Ray, learned AGA for the State submits that the delay has been duly explained by the State as the same was on account of pending approval for payment of ad valorem Court fees by the State Government. The further explanation, as according to Mr. Ray, learned AGA for the State, is that the Government was busy in the General Election of 2019 and that apart, the officials of the Government could not have taken any steps in the appeal disposed of without a written order in place, hence, was the delay and therefore, condonation of the same was requested with the CMA filed, as the appeal was disposed of in 2018. The submission is that though a reasonable explanation was offered from the side of the State, learned Court below did not consider it to be supported by sufficient cause and ultimately, dismissed the CMA. The further submission of Mr. Ray, learned AGA is that learned Court below should be adopted a pragmatic approach in order to facilitate disposal of the appeal on merit and not on any such technical ground like limitation, thereby, condoning the same while entertaining the CMA, hence, therefore, the impugned order as at Annexure-1 is liable to be interfered with consequential directions issued.

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On the contrary, Mr. Bose, learned counsel for opposite party No.3 vehemently opposed any such condonation of delay of 389 days in filing the CMA. The submission Mr. Bose, learned counsel is that no special status could be claimed by the State Government, as it cannot be treated like a superior litigant over others, while seeking delay condonation and since, it was not vigilant and since delay of 389 days in fling the CMA is not properly explained away, all the more when, the appeal was filed in 2017 as against a decree of 2003 as per Annexure-2, learned Court below did not commit any serious error or illegality in dismissing the same.

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Page 2 of 8

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In support of the above contention, Mr. Bose, learned counsel relies on an order of this Court in CMP No.899 of 2023 dated 24^th April, 2024 besides the following decisions of the Apex Court, such as, K.B. Lal (Krishna Bahadur Lal) Vrs. Gyanendra Pratap & others in SLP(C) No.14974 of 2022 dated 8^th April, 2024; Postmaster General & others Vrs. Living Media India Ltd. & another AIR 2012 SC 1506 and State of M.P. Vrs. Ramkumar Choudhary in SLP (C) Diary No.48636 of 2024 dated 29^th November, 2024 to submit that any such delay of 389 days in filing the CMA by the State should not be condoned at all, especially when, the appeal against the decree in T.S. No.65 of 2002 was filed with a delay of 4926 days. In reply and response to the above, Mr. Ray, learned AGA reiterates the plea that admittedly, there has been delay in filing the CMA against the appeal dismissed in 2018 but then, the State Government being the litigant and the delay having been duly explained, it ought to have been condoned in the interest of justice, so that, the appeal in RFA No.611 of 2017 is disposed of on merit.

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In fact, the suit in T.S. No.65 of 2002 was instituted by the father of opposite party No.3 seeking declaration of right, title and interest besides confirmation of possession and in the alternative, recovery of possession and damages in respect of the suit schedule property and it was decreed ex parte. Against such a decree as per Annexure-2, RFA No.611 of 2017 was filed with a delay of 4926 days. The appeal was dismissed for default and it was followed by CMA No.02 of 2020 seeking restoration. In fact, the CMA was filed again with a delay of 389 days. Considering such delay in filing the CMA, learned Court below was declined to allow the same. In other words, the CMA was dismissed. As against the order in CMA dated 18^th November, 2022 as at Annexure-1, the State filed an appeal initially registered as RSA No.352 of 2023, with the

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Page 3 of 8

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nomenclature changed thereafter. The question is, whether, any such delay of 389 days in filing the CMA is to be condoned?

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On a bare reading of the impugned order at Annexure-1, the Court finds that the State offered an excuse and sought to explain the delay for having not received the approval of the Govt. for payment of the ad valorem court fees. The further explanation is that the Government officials could not have undertaken any such exercise in taking steps for restoration of the appeal without a written order to that effect received from the Authority concerned. As earlier stated, the appeal was dismissed in 2018 and thereafter, the CMA was filed in 2020. The sole contention opposing such condonation of delay from the side of opposite party No.3 is that the same has not been explained by the State with any sufficient cause being shown and proved. In other words, justifying the impugned order as at Annexure-1, it is contended that the State has utterly failed to offer sufficient cause with regard to delay and default in filing the CMA.

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This Court in CMP No. 899 of 2023 disposed of on 24^th April, 2024 referring to the decision of the Apex Court including K.B. Lal (Krishna Bahadur Lal) (supra) and while dealing with a similar CMA filed with a delay 682 days and seeking restoration of the appeal held and concluded that there is no sufficient cause to condone the same. In fact, in the said case, the learned Appellate Court declined to condone the delay in filing the CMA and it was upheld by this Court with the conclusion that the State has grossly failed to show sufficient cause for such condonation.

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In K.B. Lal (Krishna Bahadur Lal) (supra), the Apex Court had the occasion to consider a similar matter with regard to

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condonation of delay and declined it with a conclusion that the party seeking such condonation was grossly negligent. In the said decision, a reference has been made to an earlier case law in Esha Bhattacharjee Vrs. Managing Committee of Raghunathpur Nafar Academy and others (2013) 12 SCC 649 with the principles enumerated therein being summarized succinctly and reproduced it, which are, as to the following:

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“21.1.(i) There should be a liberal, pragmatic, justiceoriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

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21.2. (ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

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21.3.(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

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21.4.(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

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21.5.(v) Lack of bona fides imputable to a party seeking

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condonation of delay is a significant and relevant fact.

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21.6.(vi) It is to be kept in mind that adherence to strict proof should not affect [8ublic justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

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21.7.(vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.

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21.8.(viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former, doctrine of prejudice is attracted, whereas, to the latter, it may not be attracted. That apart, the first one warrants strict approach, whereas, the second calls for a liberal delineation.

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21.9.(ix) The conduct, behavior and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

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21.10.(x) If the explanation offered is concocted, or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.”

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On a bare reading of the above decision, with reference to law cited in Esha Bhattacharjee (supra), it has to be held that the concept of a liberal approach has to be included within its domain, the reasonableness and where there is gross negligence on the part of a litigant, it has to be taken judicial notice of. Furthermore, therein, it is observed that the conduct or behavior and attitude of a party in relation to inaction or negligence are relevant factors to be taken into account, while considering a plea of condonation. The further conclusion is that the fundamental principle is that while considering a delay condonation, the Courts are required to weigh the scale and balance of justice in respect of both the parties and it cannot be given a total go bye in the name of liberal approach. A similar view has been expressed by the Apex Court in Raj Kumar Choudhury (supra) and therein, the Apex Court, while dismissing the SLP imposed cost of Rs.1 lac to be deposited by the State

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Government. A sum and substance of the decisions referred hereinbefore and discussed is that a litigant including a State Govt. has to be diligent enough to pursue and in case of the gross negligence, there can be no liberal approach and for such conduct, the party at default is to suffer.

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In the case at hand, the suit is of the year 2002 and it was decreed in 2003 and thereafter, the appeal was filed in 2017. Since, mutation was not allowed in favour of opposite party No.3, the same was challenged and in the meanwhile, with the delay of nearly 14 years, the appeal was filed. The State, in view of the challenge to the mutation, cannot be said to have had no knowledge with regard to the decree in T.S. No.65 of 2002. With whatever delay, it has taken place, the appeal was preferred in 2017 against a decree of 2003. Not only that the appeal was dismissed for default and it led to the filing of the CMA by the State. In filing the CMA, further delay of 389 days resulted and in so far as the explanation offered by the State is on account of the approval needed in depositing the ad valorem Court fees. Furthermore, the explanation is that the Government officials could not have taken steps towards restoration of appeal without any order in writing by the higher-ups. The General Election was of the year 2019, referring to which, such delay condonation is asked for, which in the humble view of the Court, cannot be accepted as an explanation enough to condone the default. Having considered the entirety of the case and for the fact that the CMA was filed with 389 days and the reason as has been assigned is narrated before, the Court, taking into consideration the objection of opposite party No.3 and case laws cited and discussed with the conclusion that there has been gross negligence on the part of the State to pursue the litigation in respect of a cause of action arose in 2002 with a decree dated 22^nd

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December, 2003, is of the view that learned Court below did not consider it proper to condone the same, which is perfectly justified. In other words, the Court is not inclined to consider the condonation of delay in filing the CMA further to seek restoration of the appeal in RFA No.11 of 2017 and therefore, the conclusion is that the impugned order 11^th November, 2022 in CMA No. 02 of 2020 calls for no interference.

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