Harihar Patra vs Gouranga Patra and Others

P.K. Misra, J.—Plaintiff-appellant has filed this revision against the order dated 8.12.1993 passed by the Subordinate Judge, Champua, in Title Appeal No. 1/93 rejecting the application of the present petitioner for condonation of delay in filing the appeal before the appellate Court.

There was delay of 14 days in filing the appeal before the appellate Court. An application u/s 5 of the Limitation Act was filed wherein it was stated that the appeal could not be filed in time as the appellant was suffering from high fever. The said application was supported by a certificate issued by a medical practitioner. The appellant also examined himself as a witness. However, the appellate Court held that since the appellant had admitted in evidence that he had attended his duties on 2.5.1993 to 17.5.1993, there was no reason why he did not prefer appeal within the period of limitation. The appellate Court overlooked the fact that the appellate was a resident of Barbil and attending the office at Barbil, whereas the appeal was to be filed before the appellate Court at Champua which is at least 30 kilometres away from Babil. Keeping in view the distance of the Court from the place of residence of the appellant, the explanation furnished by the appellant could not have been rejected outright. In such view of the matter, I am inclined to condone the delay in filing the appeal.

In course of hearing of this Civil Revision, the learned counsel for opposite parties 1 to 4 submitted that opposite parties 1 to 4 would be prejudiced if delay is condoned and the title appeal is directed to be disposed of on merit, as opposite parties 1 to 4 were ex parte in trial Court and could not cross-examine the witness examined on behalf of the plaintiff, nor could they adduce any evidence in the suit. It is apparent that in case the appeal is now taken up by the appellate Court, the respondents are likely to be prejudiced, as they could not contest the suit. Keeping in view the peculiar facts and circumstances of the case, I think interest of justice would be served if the entire matter is remitted to the trial Court so that all the parties can have opportunity of having their say in the suit. Therefore, while allowing the Civil Revision, I vacate the judgment of the trial Court and remand the suit to the trial Court for fresh disposal in accordance with law. The trial Court shall issue fresh notice to all the defendants and give them opportunity of filing written statement and contesting the suit on merit. Since the plaintiff had examined himself as the case was being taken up ex parte. Opportunity should also be given to the plaintiff to examine other witnesses including himself. This order is passed subject to the condition that the plaintiff-petitioner shall pay a sum of Rs. 250/- as cost to the counsel for opposite parties 1 to 4 within the period of one month from today.

The Civil Revision is accordingly disposed of.