Babaji Charan Swain vs Baijayanti Mohanty

A.K. Mohapatra, J

CMAPL No.155 of 2023 & I.A. No.57 of 2023

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

Heard the Petitioner who appeared in person as well as learned counsel appearing for the Opposite Parties.

On perusal of the record it appears that notices in the limitation matter were issued to the Opposite Party Nos.1 to 8 by Regd. post with A.D. pursuant to the order earlier by this Court. Record further reveals that pursuant to such notice, limitation notice was served on Opposite Party Nos.1, 3, 7 and 8 and the same were treated to be complete. So far Opposite Party Nos.2, 4, 5 and 6 are concerned, notices were returned with a remark that such Opposite Parties are dead, therefore, steps for substitution were taken. Accordingly, fresh notices were issued to the P.L.Rs. of Opposite Party Nos.2, 4, 5 and 6. Order dated 28.08.2023 reveals that the Opposite Party No.2 is represented by S.K. Dash, learned counsel and his associates. So far P.L.Rs. of Opposite Party Nos.4, 5 and 6 are concerned, they are represented by Mr. B.S. Panigrahi, learned counsel who filed his appearance in Court today. The same is taken on record. Registry is directed to reflect the name of Mr. Panigrahi, learned counsel in the cause list as well as in the brief. On scrutiny of the record it appears that notice in the limitation matter has been made sufficient from all the Opposite Parties.

Heard the Petitioner in person, the Petitioner was appearing in person submitted that for filing of the second appeal he had engaged Mr. N.P. Parija, learned counsel and his associates as lawyers for preparation of the appeal memo and filing the same before this Court. Although the second appeal was filed on 11.05.2007, however, the same was not listed for admission for a long time. In the meantime, some of the Respondents died, as a result of which steps were taken for substitution of their P.L.Rs. While the matter was pending, for consideration of such substitution applications, none appeared on behalf of the appellant when the matter was listed on 14.11.2018 before the Coordinate Bench of this Court for the first time after filing of the appeal. Learned Coordinate Bench vide order dated 14.11.2018 directed the appellant to take steps for substitution of the P.L.Rs. of Respondent No.4 within two weeks hence, failing which the R.S.A. shall stands dismissed without further reference to the Bench. Office order dated 20. 09.2019 reveals that the ADR (J&E) has passed an order to the effect that steps for issuance of notice in the matter of substitution setting aside abatement on PLR 4/a and 4/b with present correct address has not been taken pursuant to order dated 14.11.2018, the R.S.A. stands dismissed pursuant to aforesaid order passed by this Court.

Thereafter, the present CMAPL has been filed on 23.02.2023. The Petitioner who is appearing in person at the outset submitted that he was ailing and was hospitalized. It was also contended that neither he had any instruction from the Counsel engaged by him for filing of the second appeal nor any intimation was given to the Court regarding dismissal of the second appeal. As a result of which he could not take steps for restoration of the second appeal. He further contended that when the aforesaid facts of dismissal of the second appeal, due to none-compliance of peremptory order came to his notice, he approached his lawyers for taking immediate steps. Although an application has been filed in the shape of present CMAPL, however, none appeared. However the Petitioner is not satisfied with the performance of the counsel engaged by him. As a result of which he had filed a memo on 19.04.2024 before this Court with a prayer to convict him to conduct in the case as is unable to pay the fees of his lawyer. It has also been stated that he is a senior citizen that his financial condition is not very good. It was also stated that his health condition is also not good. On such ground, he has sought for permission of this Court to conduct in the CMAPL by himself.

Learned counsel appearing for the Respondents on the other hand objected to the restoration of the second appeal on the ground that there is some days delay. Further contended that the delay has not been properly explained in the application for condonation of delay. It was further contended that by a course of time the parties altered their position. Therefore, the restoration of the second appeal at this stage would cause further prejudice to the parties. On such ground, the learned counsel for the respondent submitted that the CMAPL be dismissed at this juncture and the second appeal may not be restored.

Having heard the Petitioner in person as well as learned counsel appearing for the Opposite Parties, on a careful consideration of the record, this Court found that the second appeal was dismissed due to none-compliance of the peremptory order prior to the same was admitted. Since the second appeal was not admitted, therefore no right accruing in favor of the respondents to file the same objection. Even otherwise also on a consideration of the grounds taken by the petitioner in his application for condontion of delay, this Court is of the view that unless the delay is condoned and the Petitioner is permitted to carry out the litigation, the same would cause seriously prejudice and a valuable right over the property of the Petitioner would be affected. In the aforesaid factual background, this Court is of the considered view that in the larger interest of justice, the delay is required to be condoned. Accordingly, delay in filing of the CMAPL is hereby condoned. In view of the order, condoning the delay in presenting CMAPL application, this Court also found that there is ground to restore the second appeal which was dismissed due to non-compliance of peremptory order. By taking into consideration the ground which has been taken by the Petitioner, which has been discussed elaborately in the earlier part of this order. Accordingly, the CMAPL is allowed.

So far the substitution the P.L.Rs. of Opposite Party Nos.2, 4, 5 and 6 are concerned, the same shall be considered by the appropriate assigned bench. Accordingly, Registry is directed to list the R.S.A. before the appropriate assigned bench as expeditiously as possible. In course of hearing, the Petitioner in person expresses before this Court that he has no sufficient means to engage a lawyer to defend him in present case. Considering such difficulty of the Petitioner, the Petitioner is directed to approach Secretary, Orissa High Court Legal Service Authorities, who shall engage a lawyer having such experience in such type of matter to conduct the case of the petitioner before the appropriate assigned bench diligently.

Accordingly, CMAPL and I.A. are allowed.

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