Rudranarayan Sahoo vs Bidyadhar Sahoo & Others

Dr. A.K.Rath, J

1. Defendant no.2 is the appellant against a reversing  judgment.Â

Plaintiff-respondent no.1 instituted the suit for declaration of title and recovery of possession. Case of the plaintiff was that the suit land originally

belonged to Pranabandhu Sahu, father of the defendants, elder brother of the plaintiff. After death of Pranabandhu, his sons defendant nos.1 to 3 sold

the suit property to the plaintiff by means of a registered sale deed dated 16.12.1977, vide Exts.1 and 2, and delivered possession. Plaintiff permitted

the defendants to reside there. When defendants did not vacate the suit land, plaintiff instituted the suit seeking the reliefs mentioned supra.

Defendants filed a written statement pleading, inter alia, that the suit property is the dwelling house. They had not received the consideration.

Possession of the land was not delivered to the plaintiff. They are in possession of the suit land. Defendant no.4 being the daughter is entitled to 1/4th

share. They have acquired title by way of adverse possession. The trial court partly decreed the suit holding, inter alia, that defendant no.4, one of the

co-parceners, is not bound by Exts.1 and 2 as she was not a party to the transaction. Title in respect of share of defendant no.4 passes to plaintiff

after execution of Exts.1 and 2. The plaintiff has title over 3/4th share of suit property. Possession of defendants cannot be treated as adverse against

the plaintiff. Plaintiff is not entitled to recovery of possession. Felt aggrieved, plaintiff filed Title Appeal No.30 of 2001 before the learned District

Judge, Dhenkanal, which was subsequently transferred to the court of learned Addl. Civil Judge (Senior Division), Dhenkanal. Defendant no.1 filed

cross-objection. There was a delay of 14 days. The appellate court allowed the appeal and dismissed the cross-objection on the ground of limitation.

The second appeal was admitted on the following substantial questions of law:

Whether the lower appellate court is correct in rejecting the appellant’s cross objection on the sole ground that the appellate court cannot go into the issue of

setting aside the ex parte decree passed by the trial court.

Whether the lower appellate court is correct in saying that defendant no.4 has no right except a right of residence in the event of widow forgetting that she has

already been widowed and that she cannot be divested of her share though she has no claim for partition ?

Â

Mr. R.K. Mohanty, learned Senior Advocate for the appellant submits that defendant no.2 appellant filed cross-objection. Since there was a delay

of 14 days, he filed an application under Sec.5 of the Limitation Act for condonation of delay. He submits that the appellant was prevented by

sufficient cause in not filing the cross-objection in time. The appellate court rejected the application for condonation of delay on 21.8.2003 on untenable

and unsupportable grounds and consequently dismissed the cross-objection. He submits that the valuable right of defendant no.2 has been jeopardized.

He further submits that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be

preferred. In view of the same, the matter may be remitted back to the appellate court for de novo hearing.

Per contra, Mr. B.C. Panda, learned counsel for the respondent no.1 submits that there was a delay of 14 days in filing the cross-objection. The

appellate court has rightly rejected the petition for condonation of delay and dismissed the cross-objection.

In Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others AIR 1987 SC 1353, the Apex Court held as follows:

“1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when

delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

“Every day’s delay must be explained†does not mean that a pedantic approach should be made. Why not every hour’s delay, every second’s

delay? The doctrine must be applied in a rational common sense pragmatic manner.

When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot

claim to have vested right in injustice being done because of a non-deliberate delay.

There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to

benefit by resorting to delay. In fact he runs a serious risk.

It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice

and is expected to do so.â€​

Reverting to the facts of the case in hand and keeping in view the enunciation of law laid down in Mst. Katiji, this Court finds that there was a delay

of 14 days in filing the cross-objection. In the application for condonation of delay, defendant no.1 stated that he had no knowledge about the filing of

Title Appeal No.30 of 2001 by the appellant. He came to know about the title appeal when the notice was served on him on 30.6.2003 in his office at

Bhubaneswar. He appeared before the appellate court and came to know that the suit is partly decreed. Thereafter, he contacted the other

respondents. After collecting documents, he came to know that he was set ex parte on 7.7.2003. Thereafter, he engaged a lawyer and filed the cross-

objection. This Court is of the view that the appellant was prevented by sufficient cause in not filing the cross-objection in time.

Cross-objection is a valuable right of the respondent. In view of the foregoing discussion, the impugned judgment is set aside. The matter is remitted

back to the learned District Judge, Dhenkanal. In order to avoid further delay, the parties shall appear before the learned District Judge, Dhenkanal on

19th March, 2019 on which date, he shall fix a date of hearing of the appeal as well as cross-objection and dispose of the same within a period of

three months thereafter. Since appeal is remitted back to the appellate court, this Court refrains from answering the substantial questions of law. LCR

be returned forthwith.

………………………..