Binod Bihari Karan vs Government Of Odisha & Another

D.Dash, J

1.The Appellant, by filing this Appeal, under Section 100 of Code of Civil Procedure, 1908 (for short, ‘the Code’), has assailed the judgment and decree 05.08.2022 & 11.08.2022, passed by the learned District Judge, Balasore in R.F.A. No.121 of 2015.

The Appellant with his brothers i.e Respondent No.2 & 3 and their mother as the Plaintiffs had filed Title Suit No. 147/2004-I for declaration and permanent injunction against the Respondent Nos. 1 & 2 arraigned as Defendants therein. The suit having been dismissed, the Appellant with Respondent No.3 & 4, being the unsuccessful Plaintiffs had carried the Appeal under section 96 of the Code which also stood dismissed by judgment dated 05.08.2022 followed by decree sealed and signed on 11.08.2022.

This Appellant alone filed the present Memorandum of Appeal before this Court on 06.10.2023, after a delay of 326 days. Therefore, seeking condonation of delay, the Appellant (Plaintiff No.2) has filed an application under section 5 of the Limitation Act.

Heard Mr. Arun Kumar Mishra, learned Counsel for the Appellant and Mr. G. N. Rout, learned Additional Standing Counsel.

Keeping in view the submissions made, the averments taken in the application have gone through.

It is stated that the elder brother of the Appellant was looking after the case throughout and he having taken the responsibility to challenge the judgments and decrees, had entrusted the brief to a lawyer at Cuttack, who had given certain instructions for further examination of the matter. But the elder brother of the Appellant due to his old age, forgot that matter and intimated the Appellant and Respondent No.4 that he had already entrusted the brief to the lawyer. It is further stated that due to some misunderstanding between the brothers; the Appellant is not in taking terms with the other brothers, who were the co-Plaintiffs sometime from the beginning of the year 2023. When the Appellant did not get any information, he came to the lawyer, who had been entrusted by his elder brother to file the Second Appeal who then told to have not been provided with the certified copies of the judgments and decrees. Thereafter, the Appellant applied for the certified copies of the judgment and decrees passed by the Trial Court on 25.09.2023 and obtained the same on 29.09.2023 and the Appeal was filed thereafter. In the entire application, the name of the lawyer is no where stated. The narration in the application providing the explanation for this long delay of 326 days regarding the sufficient cause in filing the Appeal after delay of 10 months and 26 days appear to be cock and bull story which per se is not believable. Therefore, even though in such matter, Court ordinarily takes a lenient view, facts and circumstances presented for the delay do not warrant a view favouring condonation.

In the wake of aforesaid, this Court finds that the Appellant has not been able to satisfy that he was prevented for sufficient cause for not preferring the Appeal for a period of 10 months and 26 days.

Resultantly, the application under section 5 of the Limitation Act, stands dismissed.

In view of the dismissal of the Interim Application; the Appeal is dismissed. No order as to cost.

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