Orissa High Court
Sri Sankelswar Mohaprabhu Bije … vs Sri Bhikari Behera on 26 June, 2025
Bench: K.R. Mohapatra, Savitri Ratho
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 01-Jul-2025 14:47:32
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.13387 of 2024
(An application under Articles 226 and 227 of the
Constitution of India)
****
1. Sri Sankelswar Mohaprabhu bije Bhabinipur,
AT/PO-Bhabinipur, P.S.-Berhampur Sadar, Dist-
Ganjam represented by Petitioner No.2
2. Sri Rajendra Raula, aged about 77 years, S/o-
Kate Das Raula, AT/PO-Bhabinipur, P.S.-
Berhampur Sadar, Dist-Ganjam .... Petitioners
-versus-
1. Sri Bhikari Behera, S/o-Late Hari Behera,
Gajapatinagar, L.I.G. Colony, P.O.- Engineering
School, P.S.-Baidyanathpur, Dist-Ganjam.
2. Hindu Public, represented by Opposite Party
Nos.3 and 4, AT/PO-Bhabinipur, P.S.-Berhampur
Sadar, Dist-Ganjam.
3. Sri Badrinath Sahu, S/o- Brundaban Sahu,
AT/PO-Bhabinipur, P.S.-Berhampur Sadar, Dist-
Ganjam.
4. Sri Sanjay Kumar Patra, AT/P.O.-Khodasingh,
P.S.-B.N. Pur, Dist-Ganjam.
5. Commissioner of Endowments, Odisha,
AT/P/O-BJB Nagar, Bhubaneswar-14, Dist-
.... Opp. Parties
Khordha
Advocates for the parties
For Petitioners : Mr. Amiya Kumar Mishra, Advocate
For Opposite Parties : Mr. Gopinath Mishra, Advocate
(for Opposite Party No.1)
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W.P.(C) No.13387 of 2022
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 01-Jul-2025 14:47:32
// 2 //
Mr. Sunita Sahoo, Advocate
(for Opposite Party Nos.3 and 4)
Miss Pratyusha Naidu, Advocate
(for Opposite Party No.5)
CORAM:
JUSTICE K.R. MOHAPATRA
JUSTICE SAVITRI RATHO
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Heard and disposed of: 26.06.2025
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JUDGMENT
By the Bench
1. This matter is taken up through Hybrid Arrangement
(Virtual/Physical Mode).
2. The Petitioners in this writ petition are aggrieved by a
composite order dated 3rd December, 2021 passed by learned
Commissioner of Endowments, Odisha, Bhubaneswar in F.A. No.20
of 2015 whereby two applications, i.e., a petition under Section 96
of the Code of Civil Procedure, 1908 (for brevity ‘CPC‘) filed by
the Opposite Party No.1 for grant of leave to prosecute the Appeal
and another petition under Section 5 of the Limitation Act, 1963
filed by him were allowed.
3. Mr. Mishra, learned counsel for the Petitioners submits that
grant of leave to file an Appeal by an aggrieved party is a matter
between the Appellant therein and the Court. Thus, the present
Petitioners might not have any say in the matter. But any
observation with regard to merit of the appeal including compliance
of the procedure in entertaining an application under Section-41 of
the Odisha Hindu Religious Endowments Act, 1951 (hereinafter
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W.P.(C) No.13387 of 2022
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 01-Jul-2025 14:47:32
// 3 //
referred to as ‘the Act’) is a matter of consideration in this writ
petition. He further submits that while entertaining both the
petitions, as stated above, no notice was ever issued or served on the
present Petitioners, who were the applicants in O.A. No.9 of 2003,
filed under Section 41 of the Act. He further submits that the order
in O.A. No.9 of 2003 was passed on 9th February, 2004 and F.A.
No.20 of 2015, assailing the said order, was filed on 10th September,
2015. Thus, there is a delay of more than eleven years in filing the
Appeal. He also submits that opportunity of hearing should have
been given to the Petitioners in whose favour the order under
Section 41 of the Act was passed while adjudicating the petition
under Section 5 of the Limitation Act. That having not been done,
the impugned order so far as condonation of delay is concerned, is
vitiated and is liable to be set aside.
4. Mr. Mishra, learned counsel for the Opposite Party No.1
vehemently objects to the same and submits that the Opposite Party
No.1 being a Hindu public is aggrieved by an order under Section
41 of the Act. Thus, he has right to prefer an Appeal under Section
44 of the Act assailing the said order. Since the procedure provided
under Order I Rule 8 of the CPC was not followed properly, the
Petitioners being Hindu public and person interested could not
appear and file objection in O.A. No.9 of 2003 filed under Section
41 of the Act. Thus, they have right to file an Appeal as rightly
observed by learned Commissioner of Endowments, Odisha,
Bhubaneswar. Observation with regard to compliance of Order I
Rule 8 of the CPC is a matter of consideration in the Appeal if
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W.P.(C) No.13387 of 2022
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 01-Jul-2025 14:47:32
// 4 //
raised by the parties. Observation in that regard is prima facie in
nature and does not affect the merits of the case of the Petitioners so
far as the compliance of the said provision is concerned.
4.1 However, considering a strong prima facie case in favour of
Opposite Party No.1 that he had sufficient cause for not filing the
Appeal in time, the delay in filing the Appeal was condoned.
Further, order with regard to condonation of delay is a reasoned one.
If the Petitioners feel aggrieved by the order of condonation of
delay, they could have filed an application to recall the said order
and to give an opportunity of hearing. He further submits that since
a valuable right of the Opposite Party No.1 is taken away by not
providing him an opportunity of hearing in the proceeding under
Section-41 of the Act, the order condoning the delay in filing the
Appeal may be confirmed by this Court on payment of adequate
cost to the Petitioners. He, therefore, prays for dismissal of the writ
petition.
5. Upon hearing learned counsel for the parties and perusal of
the record, this Court is of the considered opinion that grant of leave
to prefer an Appeal to an aggrieved person, who was not a party in
the proceeding before the Additional Assistant Commissioner of
Endowments, Berhampur, is a matter between the Court and the
Appellant. The Petitioners need not be served or provided with any
opportunity of hearing for consideration of an application under
Section 96 of the CPC for grant of leave to file an Appeal.
5.1 However, before adjudicating an application under Section 5
of the Limitation Act, the Petitioners, who were the applicants before
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W.P.(C) No.13387 of 2022
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 01-Jul-2025 14:47:32
// 5 //
learned Additional Assistant Commissioner of Endowments,
Berhampur in O.A. No.9 of 2003 filed under Section 41 of the Act,
should have been served with notice and given an opportunity of
hearing. Delay of eleven years should not have been condoned in a
routine manner without serving notice on the Petitioners. Since the
Petitioners were not provided with any opportunity of hearing for
adjudication of the petition under Section 5 of the Limitation Act, the
order of condonation of delay in filing the Appeal becomes
vulnerable and hence the same is accordingly set aside.
6. So far as observation in the impugned order with regard to
compliance of Order I Rule 8 of the CPC is concerned, the same is
prima facie in nature and the Petitioners have the right to raise the
plea with regard to compliance of the procedure under Order I Rule
8 of the CPC at the time of adjudication of the Appeal, if the delay
is condoned.
7. In view of the discussions made above, the impugned order so
far as it relates to condonation of the delay in filing F.A. No.20 of
2015 pending before learned Commissioner of Endowments, Odisha,
Bhubaneswar, is set aside and the matter is remitted back for fresh
adjudication of the application filed under Section 5 of the Limitation
Act by providing opportunity of hearing to the Petitioners by filing
objection. As the Appeal is pending since 2015, learned
Commissioner of Endowments, Odisha, Bhubaneswar should make
its best endeavour to adjudicate the application under Section 5 of the
Limitation Act at an early date in accordance with law.
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W.P.(C) No.13387 of 2022
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 01-Jul-2025 14:47:32
// 6 //
8. Before parting with this order, this Court directs the parties to
appear on the date fixed in the Appeal along with an authenticated
copy of this order and receive further instruction in the Appeal.
9. With the aforesaid observation and direction, the writ petition
is accordingly disposed of.
(K.R. Mohapatra)
Judge
(Savitri Ratho)
Judge
The High Court of Orissa, Cuttack
Dated the 26th day of June, 2025/ Amit
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W.P.(C) No.13387 of 2022