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Narasingha Charan SwaIn Vs. Jairam Jena and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberMisc. Judl. Case No. 66 of 1980
Judge
Reported inAIR1982Ori75; 53(1982)CLT87
ActsOrissa High Court Rules - Rules 8 and 13; Code of Civil Procedure (CPC) , 1908 - Sections 148; Limitation Act, 1963 - Schedule - Article 122
AppellantNarasingha Charan Swain
RespondentJairam Jena and ors.
Appellant AdvocateS.K. Mohanty, Adv.
Respondent AdvocateM. Patra, ;B. Dagara, ;P.C. Singh and ;G.B. Panda, Advs.
Cases ReferredKanhu Charan Behera v. Jagabandhu Pehera
Excerpt:
.....in the absence of any direction by the court that on failure to comply with the peremptory order the appeal shall stand dismissed without further reference to the bench, it was necessary to place the matter before the bench for final orders. this only means that the timewas allowed finally and that on appellant's failure to comply with the order within the time, an adverse order against him might be passed. the plaintiff failed to lodge the money in court until after two months fixed by the court......of civil procedure, the court is vested with the power to extend the time even after expiry of the time allowed by it. the power being there, it was for the court to exercise it in its discretion either by extending or refusing to extend time. the court did not lose seisin of the case after the expiry of the period notwithstanding the default. as observed by the supreme court in air 1961 sc 882: mahanth ram das v. ganga das, such procedural orders, though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. they do not, however, completely estop a court from taking note of events and circumstances which happen within the time fixed.10. we think it is going a little too far to say that the order is a.....
Judgment:

P.K. Mohanti, J.

1. This is an application under Section 151. C. P. C. for restoration of First Appeal No. 47 of 1974 which was dismissed for default on 29-1-1979.

2. The First Appeal was dismissed because the appellant failed to comply with a peremptory order to file the paperbooks on compulsory documents within the time fixed by the Court. The petitioner's contention is that he did not know that a peremptory Order had been passed and that when the connected appeal (F. A. No. 310 of 1978) was listed in the Cause List on 7-5-80 he came to know about the dismissal of the appeal.

3. The application for restoration was filed on 12-5-80. that is, after a delay of about 523 days. The petitioner has filed another application for condonation of delay on the ground that he was not aware of the peremptory order and he came to know about dismissal of the appeal for the first time when the matter was listed in the Cause List on 7-5-80.

4. The Opposite Party No. 1 Jairam Jena has opposed the prayer for condonation of delay. His contention is that there was wilful laches on the part of the petitioner in not filing an application for restoration in time.

5. The appeal was not dismissed for non-compliance with the provisions of Order 41, Rules 11, 17 and 18. Consequently the application for restoration cannot be treated as one under Order 41, Rule 19, C.P.C. The appeal purports to have been dismissed under the second proviso to Rule 13 of Chapt. HI, Part I of the Rules of the High Court of Orissa, Volume I. The Rules of the High Court do not prescribe any period of limitation for restoration of an appeal dismissed for default. The power of restoration is to be exercised under Section 151, C.P.C. for which no period of limitation is prescribed by the Indian Limitation Act. No doubt, in the case of Bimala Devi v. Patitapaban Dev, ILR (1973) Cut 267 : (AIR 1973 Orissa 169) a Full Bench of this Court held that an appeal dismissed for non-compliance with the High Court Rules is none-the-less an appeal dismissed for want of prosecution and as such an application under Section 151, C. P. C. for restoration of such an appeal falls within the ambit of Article 122 of the Indian Limitation Act. But in the present case, the petitioner's contention is that the order of dismissal was not passed by the Court but by the Deputy Registrar under a mistaken impression that the appeal came to an end on the expiry of the time granted by the Court to file the paperbooks on compulsory documents. The argument is thatthe appeal is deemed to be pending and the order of dismissal recorded by the Deputy Registrar is a nullity. There is considerable force in this argument. We accordingly hold that the question of limitation does not arise in this case.

6. Mr. S. K. Mohanty, learned counsel appearing for the petitioner submitted that in the absence of any direction by the Court that on failure to comply with the peremptory order the appeal shall stand dismissed without further reference to the Bench, it was necessary to place the matter before the Bench for final orders.

7. Under Rule 8 of Chapt. XI of the Rules of this Court the appellant was required to supply along with the appellant's list the requisite number of typed cyclostyled paperbooks containing the compulsory documents. The appellant's list was filed on 4-5-76, It was not accompanied by the paperbooks on compulsory documents- The appeal was listed on 6-10-78 with the office note that the paperbooks on compulsory documents had not been filed and the Court passed the following order:

XXX XXX XXX XXX

Two weeks' time after the ensuing Puja holidays of the Court is granted peremptorily to file requisite number of copies of paperbook on compulsory papers.'

The above order having not been complied with the appeal was dismissed for default on 29-1-1979 as per the order of the Deputy Registrar which runs as follows :

'25. 29-1-79. The required numberof paperbooks on compulsorydocuments not having been filed thisappeal stands dismissed pursuant toOrder No. 24 dated 6-10-78.'

8. The real question is what is the effect of the Court's order dated 6-10-78. The order does not say anything as to the consequences of the default by the party. If the order had contained the words 'in default, the appeal shall stand dismissed without further reference to the Bench' we should have thought that on the expiry of the period allowed by the Court the appeal came to an end But we think, having regard to the terms of the order, a further order was necessary by the Court before, the appeal came to an end. The order simply says that time was allowed per-emptorily. This only means that the timewas allowed finally and that on appellant's failure to comply with the order within the time, an adverse order against him might be passed. In our opinion, the order of dismissal could not be recorded by the Deputy Registrar without anything more being said by the Court.

9. Under Section 148 of the Code of Civil Procedure, the Court is vested with the power to extend the time even after expiry of the time allowed by it. The power being there, it was for the Court to exercise it in its discretion either by extending or refusing to extend time. The Court did not lose seisin of the case after the expiry of the period notwithstanding the default. As observed by the Supreme Court in AIR 1961 SC 882: Mahanth Ram Das v. Ganga Das, such procedural orders, though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a Court from taking note of events and circumstances which happen within the time fixed.

10. We think it is going a little too far to say that the order is a complete final order and that the appeal was dead on the expiry of the period allowed by the Court. In the absence of the words 'in default, the appeal shall stand dismissed without further reference to the Bench' the Court retained control over the case. A further order by the Court was therefore, necessary for final disposal of the appeal. We may, in this connection, rely on a decision in the case of Collinson v. Jeffery. (1896V 1 Ch D 644. That case arose out of a redemption action. An order was made giving the plaintiff leave to lodge the mortgage money in Court and it was directed that in default of such lodgement within two months from the date of the order the action would be dismissed with costs. The plaintiff failed to lodge the money in Court until after two months fixed by the Court. It was held that notwithstanding the expiry of the period of two months, the action was not dead, but that the Court had jurisdiction to extend the time limited by the order. The order did not contain the clause 'the action do stand dismissed without further order'. The Court, therefore, held that it was necessary to pass a final order of dismissal. Kekewich, J. observed as follows;

'......It appears to me, however, thatthis action is not dead. It is comatose; it it is moribund; but a final stroke is required to effect death. That final stroke has not been delivered, and therefore, in my opinion, the application is properly made and the order asked for may be granted.'

This decision was followed by a Division Bench of this Court in the case of Hati Pratihari v. Alekh Mohapatra (1954) 20 Cut LT 324 : (AIR 1954 Orissa 136) and by a single Bench in the case of Kanhu Charan Behera v. Jagabandhu Pehera, AIR 1969 Orissa 7.

11. In the premises aforesaid it must be held that a final order has yet to be passed on the expiry of the period allowed by the Court.

12. In the result the M. J. C. is allowed, but without any order as to costs. First Appeal No. 47 of 1974 is deemed to be pending. It may now be listed for orders.

Behera, J.

13. I agree.


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