D.Dash, J
1. The Appellant, by filing this Appeal, under section 100 of Code of Civil Procedure, 1908 (for short, ‘the Code’), has assailed the judgment
and decree passed by the learned Additional District Judge, Sambalpur in R.F.A. No.19/19/19 of 2006-08.
The Respondent No.1 as the Plaintiff had filed the suit for declaration of his right, title and interest over the suit land in schedule ‘A’ along with
the right, title, interest of the Appellant and Respondent
No.2 with further declaration that the record of right published by the Additional Tahasildar, Kuchinda in respect of the suit land exclusively in the
name of the Respondents (Defendants) is null and void and therefore, the same be corrected by inserting the name of the Respondent No.1 as the
Plaintiff therein.
The suit having been decreed on contest, the present Appellant being the aggrieved defendant No.1 had carried the Appeal under section 96 of the
Code, which stood dismissed by judgment dated 16.12.2009 followed by the decree sealed and signed on 28.12.2009.
The present Second Appeal has been filed by the Appellant (Defendant No.1) in assailing the concurrent judgements and decrees passed by the
courts below. The Memorandum of Appeal having been presented before this Court on 08.11.2017, there has been delay of 2794 ( 7 years 7 months
29 days) in preferring this Appeal. The Appellant (Defendant No.1) therefore has filed an application under section 5 of the Limitation Act, which has
given rise to Misc. Case No.733 of 2007.
2. Ms. Samapika Mishra reiterating the averments taken in the application submitted that the Appellant (Defendant No.1) having obtained the certified
copies of the judgments and decrees had entrusted the matter to a counsel for filing the Second Appeal and he was told by the Counsel that he would
inform the result of the Second. But even after for a long time, as he did not get any information, he came and ascertained that the lawyer entrusted
by him to file the Second Appeal has expired. He, therefore, again obtained the certified copies of the judgments and decrees and presented the
Memorandum of Second Appeal through another counsel. She submitted that the delay even though is for a long period, it was neither deliberate nor
intentional but on account of the unavoidable circumstance and therefore, the Appellant having been prevented by sufficient cause for all these period,
the delay need be condoned in the interest of justice.
3. Keeping in view the submissions made, I have carefully read the averments taken in the petition. When it is said that the lawyer, who had been
entrusted by the Appellant to file the Appeal has expired and for that reason, the Memorandum of Appeal was not presented in time; it is found that
the First Appellate Court had delivered the judgment in the First Appeal on 16.12.2009 and the decree was sealed and signed on 28.12.2009. The
Appellant in the application filed on 08.11.2007 has stated that the counsel, who had been entrusted met his death two years before which thus the
death of the lawyer as per the version of the Appellant was in the year 2015. Even accepting that version be correct, it is not explained as to why
from the year 2010 till 2015, no action was taken.
True it is that in the matter of condonation of delay, the Court should take a liberal view as the party does not stand to gain by causing delay in filing
the Appeal and therefore, the Court should find favour with disposal of the lis on merit. However, caution always remains that when the delay is for a
long period, the Court should also look that the valuable right accrued in favour of the adversary holding the field for a long time is not taken away so
lightly when in view of attainment of finality of the impugned order, the possibility also remains that third parties coming into picture and put to
sufferance.
4. In the wake of aforesaid, this Court finds that the Appellant (Defendant No.1) has not been able to satisfy that he had sufficient cause for not
preferring the Appeal for such a long period of 7 years 7 months 29 days.
5. Resultantly, the application under section 5 of the Limitation Act being not entertained, stands dismissed.
6. In view of the above order passed in I.A No.733 of 2017, the Appeal stands dismissed. No order as to cost.
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