RAJKUMAR JINDAL Vs. ORISSA FOREST CORPORATION

JUDGEMENT

(1.) Petitioner, plaintiff in title Suit No. 46 of 1987 challenges the order for condonation of delay in presentation of appeal by the opposite parties (defendants in the suit) before the learned Addl. District Judge. Titilagarh.

(2.) Background facts sans unnecessary details are as follows:Petitioner as plaintiff had filed the aforesaid suit in the Court of Subordinate Judge, Titilagarh with a prayer to declare his right, title and interest over the case land and for permanent injunction against the opposite parties on several grounds. The present opposite parties appeared in the suit and filed written statement denying the assertions made in the plaint. Evidence was adduced by the parties and on perusal and consideration thereof; the suit was decreed in favour of petitioner. Title Appeal No. 19/12 of 1991-93 was filed by opposite party No. 1 in the Court of learned Addl. District Judge, Titilagarh. Undisputedly, the same was filed beyond the time prescribed for preferring appeal. An application under Section 5 of the Limitation Act, 1963 (in short 'Limitation Act') was filed stating that on account of unavoidable difficulties there was delayed presentation of the appeal. On consideration of the grounds taken, delay was condoned and appeal was admitted for hearing on merits. Condonation of delay is the subject-matter of challenge in this application.

(3.) Mr. M. S. Mishra, learned counsel appearing for petitioner has urged that application for condonation of delay did not meet the requirements of Order 41, Rule 3A of the Civil P. C., 1908 (in short, the 'Code') and therefore, the same should not have been acted upon. Elaborating it is stated that the aforesaid provision mandates an affidavit to accompany a petition for condonation for delay, which was not filed. Even though it was subsequently filed, that did not cure initial defect in the application. It is further urged that prima facie untenable grounds were taken in support of the application for condonation. It is further urged that petitioner has been prejudiced because of delayed action and even if it is accepted that delay was to be condoned, costs should have been awarded to mitigate the difficulties. Learned counsel for the Orissa Forest Corporation Ltd. (hereinafter referred to as 'Corporation') (opposite party No. 1) on the other hand supported the order of learned Addl. District Judge. According to him, provisions of Order 41, Rule 3A of Code are not mandatory and even if affidavit was filed subsequently, that was to be taken note of. It is further stated that on genuine grounds condonation of delay was sought for and learned Addl. District Judge has acted perfectly within his jurisdiction and in accordance with law.