DIJABAR Vs. SULABHA

JUDGEMENT

(1.) The principal question involved in these applications under S.115, Civil P.C. is whether the District Judge, Puri committed an error of jurisdiction in entertaining Misc. Appeal No. 109 of 1980 filed before him, admittedly after expiry of the period of limitation.

(2.) The relevant facts giving rise to the present proceedings may be stated thus:- Dijabar alias Dija Baral and Madhab Baral, the petitioners in C. R. 136 of 1981 filed O. S. No. 52 of 1977(I) in the Court of the Subordinate Judge, Puri for declaration of title and recovery of possession of the suit properties, A 0.99 decimals of land appertaining to Plot No. 59 under sthitiban Khata No. 27 in village Talabapa. During pendency of the suit the defendant No. 1, Bhabani died and opposite parties 1 to 5 were substituted in his place. None of the said opposite parties excepting opposite party No. 4, a minor who was represented by guardian appeared in the case. The other defendants were set ex parte. The suit was decreed by the trial Court by judgment dated 7-3-1979 and the decree was signed and sealed on 22-3-1979. Thereafter the defendants (opposite parties) filed an application under O.9, R.13, Civil P.C. to set aside the ex parte decree passed against them. The said application was dismissed by the Court by an order dated 25-2-1980. Being aggrieved by the aforesaid order, the opposite parties preferred Misc. Appeal No. 109 of 1980 in the Court of the District Judge, Puri. The appeal was presented on 7-7-1980, long after expiry of the period of limitation, i.e. 30 days from the date of the impugned order. The memorandum of appeal was accompanied by a petition under S.5, Limitation Act for condonation of delay filed by Manguli Sethi, appellant No.2 in the appeal. The said petition was not supported by affidavit. The petitioners objected to the appeal being entertained on the ground of non-compliance with the provisions of O.41, R.3A, Civil P. C. They also contested the plea of the appellant-opposite parties that there was sufficient cause for the delay in the facts and circumstances of the case. On hearing the learned counsel for the parties and on consideration of the matter, the learned District Judge overruled the objection of the petitioners holding that the provisions of O.41, R.3-A, Civil P.C. should be construed as directory and not mandatory, Hence, non-compliance with the said provisions does not affect the discretion vested in the Court under S.5, Limitation Act to condone the delay in filing appeal in an appropriate case. He further held that in the facts and circumstances of the case there was sufficient cause for the delay in filing the appeal. Accordingly, the appellate Court allowed the petition under S. 5, Limitation Act, condoned the delay in filing the appeal subject to the condition that the appellant pay a sum of Rs.110/- to the counsel appearing for the respondents by 15-1-1981, failing which the petition under S. 5 of the Limitation Act would stand dismissed and consequently the appeal would be held to have been barred by limitation and hence liable to be dismissed. This order of the appellate Court is the subject matter of challenge in the civil revision No. 136 of 1980.

(3.) In spite of the aforesaid order of the appellate Court, the appellants (opposite parties) did not pay the amount of cost to the counsel for the respondents (petitioners) by the specified date (15-1-1981) as directed by the Court, but filed an application on 15-1-1981 for extension of time. This application was objected to by the counsel on behalf of the appellants on the ground that in view of the specific order passed that the petition under S. 5, Limitation Act would stand dismissed on failure to pay the costs by 15-1-1981, the appellate Court had no jurisdiction to extend the period for payment of costs since it had become functus officio after passing the order dated 2-1-1981. The learned District Judge overruled the objection and extended the time for payment of costs till 22-1-1981. On 22-1-1981 when the counsel appearing for the respondents refused to accept the costs tendered on behalf of the opposite parties on the plea that the Court had no jurisdiction to extend the period for payment of costs beyond 15-1-1981, the Court by its order dated 13-2-1981 reiterated its earlier view that it had ample power to extend the time granted for payment of costs on being satisfied that the facts and circumstances of the case warranted such extension. Accordingly, the appellate Court directed by the aforesaid order that the amount be tendered to the counsel for the respondents (petitioners) for acceptance on or before the 23rd instant, failing which the amount be deposited in Court by the date fixed. This order is under challenge in Civil Revision No. 137 of 1981.