Location: Orissa High Court, Cuttack Date: 22-Dec-2025 16:25:24 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.1167 of 2025 (In the matter of an application under Article 227 of the Constitution of India)

Gourav Naik@Gourav Nayak … Petitioner -versus-

Rama Majhi and others … Opposite Parties Advocate(s) appeared in this case:-

For Petitioner : Mr.R.K.Sahoo, Advocate For Opposite Parties : Mr.S.K.Dash, Advocate CORAM: JUSTICE B.P. ROUTRAY

JUDGMENT

16^th December 2025 B.P. Routray, J.

1. Heard Mr.Sahoo, learned counsel for the Petitioner and Mr.Dash, learned counsel for the Opposite Parties.

2. Present CMP is directed assailing order dated 25^th June 2025 passed by the learned First Appellate Court in R.F.A.No.38 of 2017.

3. The simple question involves in present challenge is that, when the suit was dismissed and the cross suit was allowed, issuing one composite decree in favour of the defendant, whether two separate Location: Orissa High Court, Cuttack Date: 22-Dec-2025 16:25:24 appeals would lie from the same composite decree or a single appeal. In the opinion of the learned District Judge, the single appeal in R.F.A.No.38 of 2017 is maintainable against the same composite decree allowing the counter claim and dismissing the suit.

4. Law is well settled in this regard and it is no more res integra The Hon’ble Supreme Court in the case of Charan Singh vrs. Ram Saroop, disposed of on 3^rd February 2025 (C.A.No.001586- 001586/2025 arising out of SLP(C)No.003447-003448/2025), has observed, as follows:-

“7. In our considered view, reliance was rightly placed by the first appellate court on precedents to hold that a composite appeal was not maintainable in law but, at the same time, the first appellate court ought to have borne in mind that courts exist for rendering justice albeit in accordance with law. Once the first appellate court found, correctly, that challenge to the common judgment of the trial court dated 16th March, 2021 had been laid in a composite appeal but it is the requirement of law to file two appeals with separate memoranda of appeal, which had not been filed by the appellant, the court ought to have at least alerted the appellant by making him aware of the requirement of law and giving him the liberty to file a separate memorandum of appeal. In fact, in terms of Order XLI Rule 1 of the CPC, the appellate court has the power to even dispense with the requirement of law of filing copy of the impugned judgment twice over if it is part of the memorandum of appeal already filed. In any event, the Location: Orissa High Court, Cuttack Date: 22-Dec-2025 16:25:24 defect was not such that it was incurable. The composite appeal was filed well within the period of limitation and, except for the fact that a separate memorandum of appeal was not filed, no other defect, far less serious defect, was shown to exist. If even after being alerted the appellant had failed to file a separate memorandum, the first appellate court would have been perfectly justified in dismissing the appeal. It is not shown to us that any such endeavor was made.

8. The first appellate court having failed to alert the appellant, we would have expected the High Court to intervene to set right the wrong by its interdiction. Technicality of a nature such as this should not have been allowed to prevail over substantive justice. The appellant had filed two second appeals before the High Court, meaning thereby that he had been properly advised while such advice might have been missing in the district of which the parties are residents. Unfortunately, the High Court did not address the point from the proper perspective either. While spurning the objection of learned counsel for the respondents, who has vehemently argued that there is no occasion to interfere since the appellant did not adhere to the law, we find good reason and ground to interfere.

9. For the ends of justice, we set aside the impugned second appellate judgment and decree of the High Court together with the f