Kailash Chandra Nanda Vs. Jogendra Das - Court Judgment |
| Civil;Limitation |
| Orissa High Court |
| Jan-28-1999 |
| Civil Revision No. 391 of 1998 |
| P.K. Misra, J. |
| 1999(I)OLR446 |
| Limitation Act, 1963 |
| Kailash Chandra Nanda |
| Jogendra Das |
| R.Ch. Mohanty, R.K. Mohanty, D.K. Mohanty, P.K. Rath and ;N. Behuria |
| None |
| Revision allowed |
.....agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive,..........to tata before the judgment was delivered in the suit, it cannot be said that he had deliberately refrained from filing appeal in time in spite of knowing about the dismissal of the suit. be that as it may, in such matters, unless it is found that the appellant had deliberately delayed in filing the appeal to gain some advantage, the question of condonation of delay is to be considered liberally to advance the cause of substantial justice. having regard to the facts and circumstances of the case and the further fact that there is no opposition from the opposite party, i consider that this is a fit case where the impugned order should be set aside and the delay in filing the appeal before the lower appellate court should be condoned. accordingly, the civil revision is allowed. the delay in filing title appeal no. 5 of is condoned. there will be no order as to costs.
P.K. Misra, J.
1. In spite of notice, there is no appearance on behalf of opposite party in the present Civil Revision which is directed against the order dated 7.8.1998 whereunder the lower appellate Court refused to condone delay in filing Title Appeal No. 5/98. The said appeal had been filed by the plaintiff as the suit had been dismissed. It appears that there was delay of 68 days in filing the said title appeal. The present petitioner filed a petition for condonation of delay stating that he could not take steps for filing the appeal in time as he had gone to Tata on 20.9.1997 to see his daughter. The learned District Judge has rejected the aforesaid petition on the ground that going on Tata was not a legal necessity and the appellant had gone at his own risk and stayed there for a long time without any just cause. The said order is under challenge in the present Civil Revision.
2. The lower appellate Court has not disbelieved the assertion that the appellant had gone to Tata on 20.9.1997 to see his daughter and returned to Bhubaneswar on 15.1.1998. The question of finding out 'legal necessity' for going to a place does not arise in the matter relating to consideration of limitation. The Court has to find out whether there was sufficient cause for not filing the appeal within the prescribed period. Going to see a daughter at a distant place is not unusual. Since the petitioner had gone to Tata before the judgment was delivered in the suit, it cannot be said that he had deliberately refrained from filing appeal in time in spite of knowing about the dismissal of the suit. Be that as it may, in such matters, unless it is found that the appellant had deliberately delayed in filing the appeal to gain some advantage, the question of condonation of delay is to be considered liberally to advance the cause of substantial justice. Having regard to the facts and circumstances of the case and the further fact that there is no opposition from the opposite party, I consider that this is a fit case where the impugned order should be set aside and the delay in filing the appeal before the lower appellate Court should be condoned. Accordingly, the Civil Revision is allowed. The delay in filing Title Appeal No. 5 of is condoned. There will be no order as to costs.