The court ruled that the non-appearance due to the death of the appellant and counsel did not constitute deliberate fault, warranting restoration of the appeal to ensure justice and uphold civil rights.

JUDGMENT :

ANANDA CHANDRA BEHERA, J.

1. This CMAPL has been filed by the petitioners (those were the appellants in the Regular Second Appeal vide R.S.A. No.41 of 2011) against the Opposite Parties (those were the respondents in the Regular Second Appeal vide R.S.A. No.41 of 2011) praying for readmission of the R.S.A. No.41 of 2011 after setting aside its dismissal order passed on dated 05.10.2023.

2. According to the petitioners, they (petitioners along with Bimelndu Panigrahi) were the appellants in the R.S.A. No.41 of 2011 and the said Bimelndu Panigrahi was the appellant No.3 in that R.S.A.

He (appellant No.3 Bimelndu Panigrahi) was looking after that R.S.A. on behalf of other appellants. He (appellant No.3- Bimelndu Panigrahi) expired on 16.06.2021 and unfortunately, their engaged learned Sr. Counsel Mr. J.M. Mohanty in R.S.A. No.41 of 2011 also expired.

The matter relating to the death of their engaged learned Sr. Counsel was not known to the petitioners. When on dated 05.10.2023, the R.S.A. No.41 of 2011 of the petitioners was fixed for hearing, but, due to the death of the appellant No.3 (who was looking after that appeal) and also due to the death of their engaged learned Sr. Counsel Mr. J.M. Mohanty, none of the appellants of R.S.A. No.41 of 2011 including the counsel for the petitioners/appellants could not remain present in the court on that date i.e. on 05.10.2023, for which, R.S.A. No.41 of 2011 of the petitioners was dismissed for their default.

3. The above default of the petitioners (appellants in that R.S.A. No.41 of 2011) was neither deliberate nor intentional, but on account of the above unfortunate incidents as stated above, they (petitioners) could not remain present in the Court on that day i.e. on 05.10.2023 and the aforesaid dismissal order of the R.S.A. No.41 of 2011 on dated 05.10.2023 was also not known to the petitioners. They (petitioners) came to know about the same for the first time on dated 06.03.2024 from the staffs in the office of their engaged deceased learned Sr. Counsel J.M.Mohanty. So, the petitioners filed this CMAPL praying for setting aside the dismissal Order dated 05.10.2023 passed in R.S.A. No.41 of 2011 and to restore the same to its original position as it was on dated 05.10.2023 prior to its dismissal and to fix that Second Appeal for its hearing on merit or else, they (petitioners) shall be prejudiced seriously and shall also sustain irreparable loss. Because, they (petitioners) have vital interest in the disputed properties involved in the R.S.A. No.41 of 2011 and they (petitioners) have also every chance of success in that R.S.A. No.41 of 2011 after its hearing on merit.

4. Having been noticed from the Court, the Opposite Parties (respondents in R.S.A. No.41 of 2011 ) filed their objection denying the averments made by the petitioners in the CMAPL stating that, the petitioners have not described in detail in their petition, from which particular staff in the office of their learned Sr. Counsel, they (petitioners) came to know about the dismissal of the R.S.A. No.41 of 2011 and the petitioners have filed this CMAPL unnecessarily only in order to protract the litigation and to debar the Opp. Parties from getting the fruits of the decree passed in their favour. It was the duty of the petitioners to keep track over their appeal, but not to leave the same upon the mercy of their engaged counsel and it was also the duty of the petitioners to remain in touch with their engaged counsels during the pendency of the appeal. The present CMAPL of the petitioners has not fulfilled the criterias indicated in Order 41 Rule, Rule 19 of