Orissa High Court
State Of Orissa vs Abhimanyu Prasad Gupta on 23 June, 2017
Author: A.K. Rath
Bench: A.K. Rath
HIGH COURT OF ORISSA: CUTTACK
S.A. No.261 of 1987
From the judgment and decree dated 4.9.1987 and 19.9.1987
respectively passed by Shri P.N. Patnaik, learned Additional District
Judge, Koraput-Jeypore in Money Appeal No.4 of 1986 affirming the
judgment and decree dated 16.03.1985 and 23.3.1985 respectively
passed by Sri G. Srinivas Rao, learned Subordinate Judge, Jeypore
in Money Suit No.104 of 1984.
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State of Orissa ............... Appellant
---versus--
Abhimanyu Prasad Gupta .................. Respondent
For Appellant : Miss Samapika Mishra,
Additional Standing Counsel
For Respondent : Mr.P.K. Das, Advocate
JUDGMENT
P R E S E N T:
THE HON'BLE DR. JUSTICE A.K. RATH
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Date of Hearing : 23.06.2017 │ Date of Judgment:23.06.2017
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Dr. A.K. Rath, J.This is an appeal against the judgment and decree dated 4.9.1987 and 19.9.1987 respectively passed by the learned Additional District Judge, Koraput-Jeypore in Money Appeal No.4 of 1986 affirming the judgment and decree dated 16.3.1985 and 23.3.1985 respectively passed by the learned Subordinate Judge, Jeypore in Money Suit No.104 of 1984.
2. The respondent as plaintiff instituted the suit for realization of Rs.10,857/- with interest @18% per annum from the defendant. The 2 case of the plaintiff is that the Collector, Koraput wanted security deposit to auction the liquor shops of the Koraput district for the year 1980-81. The plaintiff deposited Rs.8,400/- as advance on 21.3.80 in the office of the Superintendent of Excise, Koraput and obtained a receipt. The Collector, Koraput submitted the bid list for confirmation. But then, his bid was not approved and as such he was entitled to refund of security deposit of Rs.8,400/-. In spite of repeated demands, the Superintendent of Excise failed to refund the amount. After issuing notice, he instituted the suit for refund of Rs.8,400/- with interest @18% per annum from 2.11.82 to 17.6.84 with P.I. and F.I.
3. Pursuant to issuance of summons, the defendant entered appearance and filed a written statement denying the assertions made in the plaint. The case of the defendant is that the plaintiff is not entitled to any interest and the suit is barred by limitation under Sec.96 of the Bihar and Orissa Excise Act.
4. On the interse pleadings of the parties, learned trial court struck five issues. To substantiate the case, the plaintiff had examined one witness and on his behalf five documents had been exhibited. No witness was examined on behalf of the defendant.
5. Learned trial court decreed the suit. Thereafter the defendant filed M.A. No.9 of 1985 before the learned District Judge, Koraput. The same was returned to the defendant. The defendant filed First Appeal No.159 of 1985 before this Court. The same was withdrawn. Thereafter the defendant filed Money Appeal No.9 of 1986 before the learned District 3 Judge, Koraput which was subsequently transferred to the court of the learned Additional District Judge. Since there was delay in presenting the appeal, an application under Sec.5 read with Sec.14 of the Limitation Act was filed. Learned District Judge dismissed the appeal on limitation.
6. The second appeal was admitted by a Bench of this Court on 04.12.1987 on the substantial question of law enumerated in ground nos.1(a) to 1(e) of the memorandum of appeal.
"(a) Whether the F.A. No.159/85 before the Hon'ble Court having been returned on 1.10.85, the appeal M.A. No.4/86 having been presented before the learned District Judge on 3.10.85 at Koraput, the petition u/s.14 read with Sec.5 of the Limitation Act has application to the case ?
(b) Whether the delay in filing the appeal before the Hon'ble High Court on a wrong conception or doubtful conception of the provision of Orissa Civil Court Act, 1984 constitutes a reasonable and sufficient cause for condonation of delay in presenting the appeal ?
(c) Whether the approach of the learned Addl. District Judge that sec.14 of the Indian Limitation Act has no application to an Appeal in view of Sec.2(1) of the said Act can be a correct approach and can be legally sustained.
(d) Whether in view of the finding of the learned Addl.
Dist. Judge that the plaintiff is not entitled to interest and that the security money has been already deposited in court, the appeal should have been dismissed on the ground of limitation in as much as the main relief of interest having been decided in favour of appellant the appeal ought to have been allowed ?
(e) Whether finding of the learned lower appellate court that the appellants did not take diligent steps in filing the appeal in time is not an error of record the same having been filed on 3.10.86 having taken return of on 1.10.86 for the Hon'ble High Court."
7. Heard Miss Samapika Mishra, learned Additional Standing Counsel for the appellant and Mr. P.K. Das, learned counsel for the respondent.
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8. Miss Mishra, learned Addl. Standing Counsel for the appellant submits that the defendant was prosecuting the lis bona fide. The defendant filed M.A. No.9 of 1985 before the learned District Judge, Koraput. The same was returned to the appellant. The appellant filed First Appeal No.159 of 1985 before this Court. The same was withdrawn. Thereafter the defendant filed Money Appeal No.9 of 1986 before the learned District Judge, Koraput which was subsequently transferred to the court of the learned Additional District Judge. There was delay in presenting the appeal. Learned District Judge committed a manifest illegality in not condoning the delay. She further submits that once appeal is filed beyond the prescribed period of limitation, it is incumbent on the part of the learned appellate court to decide the application for condonation of delay and thereafter to decide the appeal on merit. But the learned District Judge decided the appeal on merit and dismissed the same on the ground of delay.
9. Mr. Das, learned counsel for the respondent submits that the amount of Rs.10,857/- was outstanding against the defendant. The plaintiff instituted the suit for realization of the same. Learned trial court on a vivid analysis of the evidence, both oral as well as documentary, and pleadings decreed the suit. The defendant filed M.A. No.9 of 1985 before the learned District Judge, Koraput. The same was withdrawn. The defendant filed First Appeal No.159 of 1985 before this Court. The same was also withdrawn. Thereafter M.A. No.9 of 1986 was filed. The defendant was not prosecuting lis bona fide. Thus the learned appellate court is justified in dismissing the appeal on the ground of delay. 5
10. Sec.14 of the Limitation Act provides for exclusion of time of proceeding bona fide in Court without jurisdiction.
11. In Zafar Khan and others, vs. Board of Revenue, U.P., and others, AIR 1985 SC 39, the apex Court held that in order to attract the application of Sec. 14(1), the parties seeking its benefit must satisfy the court that: (1) that the party as the plaintiff was prosecuting another civil proceeding with due diligence; (ii) that the earlier proceeding and the later proceeding relate to the same matter in issue and (iii) the former proceeding was being prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
12. This Court in the case of Dasarath Behera and others vs. Katai Dei and others, AIR 1991 ORISSA 160 held that Sec.14 of the Limitation Act should be liberally construed; unless there is sufficient material to come to a finding that the plaintiff had acted dishonestly and with lack of good faith, he cannot be denied the benefit of the provisions of Sec.14.
13. Once an appeal is presented beyond the prescribed period of limitation, it is incumbent on the part of the learned appellate court to decide the application for condonation of delay and thereafter proceed to decide the appeal on merit. But the learned District Judge adopted a very peculiar method. Instead of deciding the application for condonation of delay, he proceeded to decide the appeal and dismissed the same on the ground of limitation.
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14. Since the appellant was prosecuting the lis bona fide, the lower appellate court ought to have condoned the delay. In view of the same, the delay in filing the appeal is condoned.
15. In the wake of aforesaid, the judgment and decree of the learned lower appellate court is set aside. The case is remitted back to the learned District Judge, Koraput for deciding the appeal on merit.
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Dr. A.K. Rath,J.
Orissa High Court, Cuttack The 23rd June, 2017/Basanta