LAXMIDHARA SAMANTASINGHARA Vs. ALARANATH DHANDA MULAKA MAHAVIDYALAYA

JUDGEMENT

(1.) This is a Civil Revision Petition under Section 115 of the Code of Civil Procedure assailing the order dated 8.2.2018 (Annexure-4) passed by the District Judge, Puri thereby allowing an application under Section 5 of the Limitation Act involving R.F.A. No.31 of 2016 entertaining an Appeal filed after almost one and half decade.

(2.) Short background involving the case is that parties involved herein entered into a suit for declaration of the gift deed executed by Chandra Sekhar Samantasinghar, defendant no.2 in favour of the Alarnath Dhanda Mulaka Mahavidyalaya, defendant no.1 on 4.1.1978 as void and illegal and also for declaration that the suit land is the joint family property of the plaintiffs and defendant no.2 with award of cost. The suit was registered as Title Suit No.159 of 1989. Brief fact further discloses that even in spite of sufficiency of notice, though the contesting defendant no.1, Secretary-cum-Principal of the College appeared through a Counsel but however, chose not to file written statement and thus the suit was set ex parte on 17.8.1992. Whereafter defendant no.1 filed a Misc. Case under Order 9 Rule 13 of C.P.C. to set aside the ex parte judgment and decree, which was allowed by order dated 24.4.1997. It appears, even after the ex parte decree was recalled on allowing the Misc. Case under Order 9 Rule 13 of C.P.C., the contesting defendant did not prefer to file written statement in spite of repeated adjournments. The trial court finding total non-cooperation of the contesting defendant remained constraint to dispose of the Title Suit ultimately, vide judgment dated 1.7.2000 by allowing the suit. It is after about 15 years 7 months and 25 days, a regular First Appeal was filed along with an application for condonation of delay under Section 5 of the Limitation Act. Defendant no.3 being appellant filed the Appeal. Respondent Nos.1, 2, 4 to 7, 10 & 11 filed objection to the petition for condonation of delay and contended that the appellant has not disclosed sufficient reason to condone the delay. The contesting respondents also pleaded that looking to the conduct of defendant no.1 even after the judgment and decree was set ex parte, not caring to file written statement to contest the suit and filing a regular Appeal after long 15 years 7 months and odd days, there is serious and deliberate neglect by defendant no.1 in conducting the case. Looking to the nature of dispute, it cannot be believed that defendant no.1 can remain so callous in taking up such an important issue and thus the respondents prayed the lower appellate court for dismissing the Section 5 application and thereby also dismissing the First Appeal on the ground of limitation to at least give rest to the judgment and decree passed therein about 15 years back. The application under Section 5 of the Limitation Act was, however, allowed. Hence the Civil Revision Petition involving the impugned order of the lower appellate court in allowing the application under Section 5 of the Limitation Act with such huge delay.

(3.) Sri D.Mohapatra, learned counsel for the petitioners taking this Court to the objection against the Section 5 application and the pleadings taken note hereinabove contended that looking to the conduct of the parties at the first instance not caring in filing written statement in spite of sufficiency of notice and appearance therein, even after ex parte judgment and decree have been set aside, this defendant even did not choose to contest the matter by filing written statement compelling the trial court to conclude the suit proceeding and deciding only on the basis of plaint averment and evidence as available. Taking this Court to the grounds taken in the Section 5 application, Sri Mohapatra, learned counsel for the petitioners taking to the grounds and the factual background involved herein submitted that the O.P., i.e. defendant no.1, being an educational institution having the Principal as the Secretary, more particularly shifting the burden to the poor Clerk involving the Institution for not bringing to the notice of the Head of the Authority the development involving the suit remained improper and unacceptable. So far as the allegation of defendant no.1 is concerned, there was connivance between the staff of the College so also the plaintiffs claimed to be concocted and there is no evidence to show that the limitation petition was filed. Sri Mohapatra, learned counsel for the petitioners further contended that for the limitation petition filed with affidavit and the serious objection by the plaintiffs, the contesting O.P. therein, for the interest of justice, burden of proving through evidence to condone such delay ought to have been shifted to the defendant no.1, the petitioner therein. Taking this Court to the decisions of the Hon'ble apex Court in 2012(3) SCC 563, Sri Mohapatra, learned counsel for the petitioners attempting to satisfy the contention raised therein by the petitioners submitted that the impugned decision also remained otherwise contrary to the legal position of the country.