Orissa High Court
State Of Orissa And Ors. vs Jayaram Mahapatra on 4 December, 2002
Equivalent citations: 2003(I)OLR299
Author: L. Mohapatra
Bench: L. Mohapatra
JUDGMENT L. Mohapatra, J.
1. Defendants are the plaintiffs before this Court against a confirming judgment. The plaintiff-respondent filed the suit for declaration that his date of birth is 2.11.1926 and as such he is entitled to be retained in service till 2.11.1984 under the prevailing service rules and for further direction to reinstate him in service.
2. The case of the plaintiff-respondent is that he joined the service as Inspector of Co-operative Societies as per order of the defendant No. 2 and on the date of retirement from service he was working as Assistant Registrar of Co-operative Societies. According to the plaintiff, his date, of birth is 2.11.1926 but due to wrong entry of the his date of birth in the gradation list prepared by the defendants he was prematurely retired about six years prior to his actual date of retirement. Further case of the plaintiff is that the gradation list was prepared in the year 1958 and his date of birth was wrongly noted as 2.11.1920 instead of 2.11.1926 and coming to know about the same, he made a representation to the Registrar, Co-operative Societies on 24.6.1959 requesting him for correction of the date of birth as reflected in the gradation list. The said representation was not attended to for a long time and ultimately the plaintiff submitted a memorial to the Governor of Orissa on 29.12.1973 and as there was no response, he had filed O.J.C. No. 868 of 1977 before this Court wherein the defendants were directed by the High Court to dispose of the representation of the plaintiff within three months from the date of the order i.e. 16.1.1978. On 13.4.1978 the plaintiff was intimated by the Government that the Governor has been pleased to reject his memorial. It is also the case of the plaintiff that he is the third son of his parents and the eldest son was born on 1.9.1920 and was also a Government servant and his second brother was born on 10.9.1921. He was also serving in the Co-operative Department along with the plaintiff. In view of the date of birth of the aforesaid two brothers recorded as such in their service records, the date of birth of the plaintiff could not have been 2.11.1920 and should have been corrected to 2.11.1926.On the above plea the suit was filed.
3. The defendants filed a joint written statement and denied the plaint allegations that the .date of birth was wrongly recorded as 2.1 1.1920. According to the defendants the correct date of birth had been recorded in the service book basing on the entries made in the Secondary School Leaving Certificate and the representation made by the plaintiff was rightly rejected.
4. On the pleadings of the parties, the learned subordinate Judge, Berhampur framed four issues an'd decreed the suit. Challenging the said judgment and decree the defendants-appellants preferred an appeal before the learned 1st Additional District Judge, Ganjam. The said appeal having been dismissed solely on the question of limitation, the present appeal has been filed.
5. At the time of admission, this Court formulated the following substantial questions of law as enumerated in ground Nos. 2, 3, 4 and 6 of the memorandum of appeal :
(2) "For that when neither the parties were heard on the merits of the appeal or question of limitation, nor the parties were afforded any opportunities whatsoever, in making their submissions, on the merits of .the appeal, and the question of limitation, the judgment is contrary to law.
(3) For that the learned Addl. Dist. Judge having heard the parties on the question of production of additional evidence by the appellants, the disposal of the appeal is grossly erroneous in law and without jurisdiction.
(4) For that the learned appellate Court committed error apparent on the face of the record by indicating in para 3 of the judgment that various points were raised by the Government Pleader during the course of arguments of appeal. This is belied by the order recorded by the Addl. Dist. Judge dated 27.6.86, quoted above, when he posted the case to 9.7.85 for orders on the application dated 1.9.82.
(6) For that assuming that the question of limitation available to be re-examined the law is well settled that such power is available to be exercised only when such question of limitation is re-agitated by the respondent and further that the earlier order condoning the delay ex parte was perverse or erroneous calling for interference by the Court. In the absence of any finding that the earlier order passed by the Court was perverse or irrelevant calling for such interference the judgment is erroneous in law."
6. From the record, it appears that at the time of admission of this appeal a defect was pointed out with regard to the maintainability of the appeal and this Court by order dated 7.3.1986 directed that the question of maintainability to be decided after appearance of the respondent. At the time of hearing of this appeal in spite of repeated calls though the learned counsel for the State appeared on behalf of the appellants but none appeared for the respondents.
7. Referring to the substantial questions of law as stated above, the learned State Counsel drew the attention of the Court to the orders passed "by the lower appellate Court at different stages and submitted that the delay in filing appeal having been condoned and the appeal being admitted, there was no further scope for the learned lower appellate Court to reconsider the question of delay in filing the appeal and the appeal should have been disposed of on merit.
8. In order to appreciate the submissions made by the learned counsel for the State, it is necessary to look into different orders passed by the lower appellate Court. From the order- sheet it appears that the appeal was filed on 14.4.81 along with a petition under Section 5 of the Limitation Act for condonation of delay in filing the appeal. By order dated 1.5.81 the petition under Section 5 of the Limitation Act was heard and delay in filing the appeal was condoned and the appeal was also admitted. Thereafter, the respondent entered appearance and participated in the proceeding on several dates but never objected to the order passed on 1.5.81. It further appears that in course of proceeding before the lower appellate Court, a petition was filed by the present appellants for adducing additional evidence under Order 41, Rule 27, C.P.C. on 27.6.85 the Government. Pleader appearing on behalf of the present appellants prayed for an adjournment and the learned counsel for the respondent also prayed for an adjournment. Both the petitions praying for adjournment were allowed so far as the hearing of the appeal is concerned, but the petition under Order 41, Rule 27. C.P.C. was taken up and the matter was directed to be put up on 9.7.85 for orders on the petition. Both the orders dated 1.5.81 and 27.6.85 are quoted below :
"3. 1.5.81. Petition Under Section 5 of Limitation Act is put up. Heard Admit. Delay his condoned. Requisites already filed. Call for L.C.R. and issue notices to respondents fixing 15.7.81 for S.R.
52. 27,6.85 G.P. for the appellant files a petition for time on the ground of his engagement in a part heard matter and as such not ready. Advocate for the respondent also files a petition for time on the ground of his engagement in two old part heard suits. The petitioners are allowed so far the hearing of the appeal is concerned. Heard both sides on the petition dated 1.9.82 filed by the appellant Under Order 41 Rule 27 C.P.C. Call on 9.7.85 for orders."
Further it appears that on 9.7.85 the Presiding Officer was on leave and the matter was directed to be posted to 10.7.85 for orders. On 10.7.85 the impugned judgment was delivered dismissing the appeal on the ground of delay. The said order dated 10.7.85 is quoted below :
"54. 10.7.85 Judgment as per in separate sheets attached to the record. Pronounced in the open Court. The appeal is dismissed without cost."
9. On perusal of the impugned judgment, it appears that the learned 1st Addl. District Judge did not enter into the merits of the case and decided the fate of the appeal only on the ground of delay in spite of the fact that delay had already been condoned by order dated 1.5.8 1. The learned 1st Addl. District Judge was conscious of the said order but held that even if delay has been condoned it was still open to the respondent to reagitate the same at the time of hearing of appeal. I am unable to accept such reason given by the learned 1st Addl. District Judge. Though the appeal was presented on 14.4.81 along with a petition under Section 5 of the Limitation Act, no notice was issued to the respondent in the matter of limitation and without issuance of the notice to the respondent the delay in filing the appeal was condoned on 1.5.81 and the appeal was admitted. The legality of the said order was however not challenged by the respondent at any stage till the appeal was disposed of. Again from the order dated 27.6.85 it appears that the prayer made by the counsel for both the parties for adjournment of appeal was granted but the petition under Order 41, Rule 27, C.P.C. was taken up for hearing. The order itself further shows that the case was posted to 9.7.85 for orders on the petition filed under Order 41, Rule 27, C.P.C. It appears that the appeal was never heard either on merits or on the question of limitation. However, the lower appellate Court disposed of the appeal by rejecting the prayer of the present appellants for condonation of delay by order dated 10.7.85. I am also of the view that such procedure adopted by the lower appellate Court is also unknown to law. In view of the reasons stated above, I have no other option except to remit back the matter to the lower appellate Court for hearing of the appeal. Though before condoning delay the Court should have sent notice to the respondent on the question of limitation, the order condoning delay having not been challenged by at any stage by the respondent, I feel the said question is no more open to the agitated.
10. Before parting with the case, since the question of maintainability of the present appeal has been raised by the office, the same requires to be decided. As it appears from the impugned judgment the lower appellate Court heard the appeal which is not supported by the order passed in the order-sheet and dismissed the appeal by refusing to condone the delay in filing the appeal. Since the question of limitation was considered while dismissing the appeal by way of delivering judgment and decree, in my view, the appeal is maintainable.
11. Accordingly, I allow the appeal, direct the lower appellate Court to hear the appeal afresh after giving opportunity to the parties. Since the suit is of the year 1978, the lower appellate Court shall try to dispose of the appeal within six months from the date of receipt of the L.C.R. The record be sent back immediately to the lower appellate Court.