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2023 Supreme(Ori) 59
IN THE HIGH COURT OF ORISSA AT CUTTACK
B. P. Routray, J.
Nrusingha Behera – Appellant
Versus
Brajaraj Das & Anr. – Respondents
RSA No. 62 of 2019
Decided On : 06-01-2023
Banshidhar Baug, Advocate, Jitendra Kumar Naik, Advocate
The main legal point established in the judgment is the application of Section 5 of the Limitation Act and the importance of considering 'sufficient cause' and 'bonafide nature of explanation' in condoning the delay in filing an appeal.
Headnote:
Limitation - Appeal - Section 5 of the Limitation Act - [Kulamani Behera] - [C.S. No.366 of 2009, C.S. No.938 of 2008, C.S. No.1531 of 2012] - The court discussed the application of Section 5 of the Limitation Act and condoned the delay in filing the appeal, emphasizing the importance of substantial justice and the need to consider the conduct and behavior of the parties in each case. Key legal provisions such as 'sufficient cause' and 'bonafide nature of explanation' were highlighted, influencing the court's decision to set aside the dismissal of the appeal on the ground of limitation.
Fact of the Case:
The appeal was filed against the dismissal of the appeal on the ground of limitation, where the delay of 7 years 291 days in preferring the appeal was refused to be condoned by the learned District Judge. The case involved a dispute over the status of a son and the partition of properties.
Finding of the Court:
The court found that the delay in filing the appeal should be condoned as the substantial right of the appellant to raise objections in the original suit had been infringed by the respondent's conduct of obtaining a decree without impleading the necessary party. The dismissal of the appeal on the ground of limitation was unjustified and set aside.
Issues: The main issue was whether the dismissal of the appeal on the ground of limitation was justified or not.
Ratio Decidendi: The court emphasized the application of Section 5 of the Limitation Act, considering the conduct and behavior of the parties, and the need to ensure substantial justice. It found that the delay in filing the appeal should be condoned to provide the appellant with the opportunity to raise objections, which had been deprived due to the respondent's conduct.
Final Decision: The appeal was allowed, the dismissal of the appeal on the ground of limitation was set aside, and the delay in filing the appeal was condoned. The learned District Judge was directed to hear the parties on merits and dispose of the appeal in accordance with the law.
JUDGMENT
B.P. Routray, J. - Present appeal is directed against order dated 1st March, 2019 of the learned District Judge, Khurda at Bhubaneswar passed in RFA No.100 of 2018 arising out of C.S. No.366 of 2009, wherein the appeal was dismissed on the ground of limitation as learned District Judge refused to condone the delay of 7 years 291 days in preferring the appeal.
2. The facts in brief are as follows;-
Late Kulamani Behera had three sons, namely Nrusingha Behera (present Appellant), Brajaraj Das (present Respondent No.1) and Nabaghana Behera. Tulasi Behera is the wife of Kulamani. Kulamni died on 7th November, 2008. C.S. No.366 of 2009 was filed by Brajaraj praying to declare him as one of the sons of Kulamani Behera and the name of Rajkishore Das, as his father, mentioned in his School certificate is an error since he was never adopted by Rajkishore Das, his maternal grandfather. In the said suit, Brajaraj did not implead other sons of Kulamani and only impleaded Tulasi (his natural mother) as sole defendant. Tulasi agreed to the claim of Brajaraj and the suit was decreed in plaintiff's (Brajaraj) favour on 9th September, 2010 by declaring that his father's name was wrongly written as Rajkishore Das in place of Kulamani Behera. Following the decree, a declaration was published by Brajaraj in two daily local newspapers namely 'The Samaj' and 'Dharitri' on 27th October, 2010.
3. Kulamani had self-acquired as well as ancestral properties, which was in jointness with other co-sharers.
4. One of the co-sharers namely Bhagyadhara Behera filed Civil Suit No.938 of 2008 praying for partition wherein Nrusingha, Nabaghana, Brajaraj and many others were arrayed as parties. Further Civil Suit No.1531 of 2012 was filed by Nrusingha against Nabaghana, Brajaraj and others praying for some declaration and injunction. In both the suits Brajaraj was described as son of Kulamani. In C.S. No.1531 of 2012, Brajaraj filed his written statement on 17th August, 2013 disclosing about the declaration decreed in his favour in C.S. No.366 of 2009.
5. RFA No.100 of 2018 was filed by Nrusingha on 28th June, 2018 impleading Brajaraj and Tulasi as Respondents with a prayer to set aside the decree passed in C.S. No.366 of 2009. Along with the appeal, a petition for leave to appeal and another petition under Section 5 of the Limitation Act were filed. The ground taken by the Appellant to condone the delay of 7 years 291 days is that, passing of such a decree on 9th September, 2010 by the Civil Judge (Jr. Division) Bhubaneswar in C.S. No.366 of 2009 in favour of Respondent No.1 was not within his knowledge earlier and he subsequently came to know about the same in January, 2018 and thereafter he got the date of disposal of the suit, applied for certified copy and got the same on 26th June, 2018 through his counsel, and ultimately filed the appeal.
6. The appeal was contested by Respondent No.1. The learned District Judge in the impugned order refused to condone the delay and dismissed the appeal on the ground of limitation. The reasons assigned in the order by the District Judge are that the Appellant had the knowledge of such a declaration given in favour of Respondent No.1 in 2013 as per the written statement filed therein and even prior to that in C.S. No.938 of 2008. Further, the Appellant had enough source of knowledge from the paper publication made in the local newspaper in the year 2010 after the declaration made by the Civil Court.
7. Admittedly Brajaraj is the natural son of Kulamani. C.S. No.938 of 2008 for partition was filed prior to C.S. No.366 of 2009 and C.S. No.1531 of 2012. In the partition suit, the parties had claimed their respective shares with respective objections. It also remains undisputed that, neither Nrusingha nor the other son, namely Nabaghana were arrayed as parties in C.S. No.366 of 2009. This means Respondent No.1 tried to get the benefit of declaration through the Civil Court Decree behind the back of present Appellant and Nabagh
