CASE TITLE : BHIKARI CHARAN SAMANTRAY (DEAD) & ORS. VS. GAJENDRA KUMAR SAMANTRAY (DEAD) & ORS.
CASE NO : SA NO.72 of 1996
DATE OF JUDGMENT : September 06, 2024

The present 2nd Appeal has been preferred against the Judgment and Decree dated 21.12.1995 & 12.01.1996 of the 1st Appellate Court in T.A. No.60 of 1993, which was partly allowed in favour of the present Respondents. The original Appellant (Bhikari Charan Samantaray) and the original Respondents (Gajendra Kumar Samantaray and his mother Kamala Dei) have passed away in the meantime and have been duly substituted by their LRs.

The genesis of the present dispute relates to the relationship between the present Respondents (Gajendra Kumar Samantaray and his mother Kamala Dei) and the present Appellant (Bhikari Charan Samantaray). Initially, a suit bearing T.S No.17 of 1985-I which was filed by the present Respondents, against the present Appellant, for setting aside the ex parte judgment and decree passed on 24.09.1977 in O.S No.58 of 1976-I. The suit bearing T.S No.17 of 1985-I was dismissed by the Trial Court, leading to the present Respondents filing a 1st Appeal vide T.A. No.60 of 1993, which was allowed by declaring the Judgment and Decree of O.S. No.58 of 1976-I as void and non-est, held the present Respondents (Gajendra and Kamala Dei) as the Son and the mistress of the present Appellant, and granted a monthly maintenance of Rs.300/- in favour of Kamala Dei. The present 2nd Appeal has been preferred against the aforesaid judgement of the 1st Appellate Court.

The present 2nd Appeal has been admitted on two substantial questions of law, vis-à-vis; firstly, Whether, the lower appellate court’s finding that, the “Ex parte Judgment and Decree in O.S. No.58 of 1976-I was obtained by suppressing summons” suffers from non-consideration of the material evidence on record and as such raises a question of law being vitiated by perversity? Secondly, whether the suit filed by plaintiff-respondent was completely barred by limitation as per Articles 58 and 59 of the Limitation Act in as much as the suit was not filed within 3 years from the date of the knowledge about the passing of the decree in the previous suit?

The Appellants, relying on a string of judgements (in para 14), have assailed the judgement and decree of the 1st Appellate Court and supported the judgement and decree of the Trial Court. On the contrary, the Respondents, by placing reliance on a few judgements (in para 15) have controverted the Appellants’ stance.

In final adjudication, regarding the first issue, the Hon’ble Court has observed that Order 32 of the CPC protects the interest and the minor and ensures that they are properly represented in a suit. Accordingly, Rule 3 (4) & (4-A) of Order 32, that are mandatory in nature, provide that the wishes of the minor and his guardian, ascertained through issuance of notices to them, are to be obtained before any guardian for the minor is appointed by the Court. In such background, the Hon’ble Court has perused the order sheets of the suit bearing O.S. No.58 of 1976-I and held that no notice has been served on the minor defendant (Gajendra) or his natural guardian mother (Kamala Dei). Additionally, no notice was issued to the minor defendant upon his attaining majority during pendency of the suit, as is the prerogative of the Court. This defeats the object of Order 32 of the CPC. As such, the Hon’ble Court (citing the decisions in para 19, 20 and 21) has held that the appointment of the Guardian-Ad-Litem is a nullity, the proceedings of the aforesaid suit starting from 16.06.1976 till its Judgment and Decree are unlawful and the orders passed in O.S. No.58 of 1976-I starting from 16.06.1976 onwards are null and void. Consequently, it has also been held that the plaintiff in O.S. No.58 of 1976-I (i.e. Bhikari Charan Samantaray) has obtained the decree in O.S. No.58 of 1976-I by practising fraud.

So far as the second issue is concerned, it has already been held that the original suit was obtained by practicing fraud – which is a continuing wrong – and suppressing service of notice/summons. The initial actions in O.S. No. 58 of 1976-I were not in accordance with the law. Consequently, all subsequent or related proceedings are rendered invalid because illegality undermines the very foundation of the order. As the maxim Sublato fundamento cadit opus states, when the foundation is removed, the structure or work collapses. Therefore, the Hon’ble Court (referring to various judgements in Para 25) has held that the suit bearing T.S. No.17 of 1985-I (filed by the present Respondents against the original suit) cannot be considered to be barred by limitation.

Ultimately, the Hon’ble Court has allowed the 2nd Appeal in part, set aside the judgement and decree in T.S. No.17 of 1985-I, partly set aside the Judgment and Decree passed by the 1st Appellate Court in T.A. No.60 of 1993, and directed the Civil Judge to proceed in the matter (O.S. No.58 of 1976-I) de novo since the previous stage of the Order No.2 dated 16.06.1976 and dispose of the same.

CASE TITLE : STATE OF ORISSA AND ANOTHER VS. M/S. B. ENGINEERS
AND BUILDERS PRIVATE LIMITED.
CASE NO : S.A. NO.127 of 1995
DATE OF JUDGMENT : December 03, 2024

The State and Executive Engineer (Appellants) have preferred this 2nd appeal arraying the judgment and decree of the dismissal of the 1st appeal vide T.A. No.04 of 1993 dated 14.02.1995 and 22.02.1995 respectively, which confirmed the judgment & decree of the trial court dated 09.09.1993 & 17.10.1993 respectively in T.S. No.04 of 1992.

The Appellants and the Respondent-Company had an agreement to construct a bridge over the river Vansadhara, near Gunupur, in the district of Rayagada. Due to some delay in completion of the project, the present Appellants, as per letter No.1165 dated 27.01.1992 and letter No.1312 dated 29.01.1992, unilaterally cancelled the agreement and adjusted the security deposit, in the shape of Bank guarantees for Rs.8,85,000/-, by the Company towards the losses incurred by them. Aggrieved, the Company sought relief before the trial court in the shape of T.S. No.04 of 1992. The trial, vide its judgment and decree dated 09.09.1993 and 17.10.1993 respectively, decided the issues framed therein in favour of the company by declaring the aforesaid letters as illegal and permanently restraining the present Appellants from enchasing the Bank guarantees until final settlement of accounts. The present Appellants preferred a 1st Appeal vide T.A. No.04 of 1993 against the aforesaid unfavourable judgment, which again went in favour of the Company. Consequently, the present 2nd appeal has been preferred by the Appellants on two substantial questions of law; firstly, maintainability of the original suit on the ground that the pleading did not contain any reference to a notice under section 80 C.P.C. being served on the present Appellants and secondly, probable waiver of the notice under section 80 C.P.C. in view of the particular facts and circumstances of the present case.

The backbone of the Appellants’ arguments is that the original suit is not maintainable since notice under section 80 of C.P.C. was not served upon the State and Executive Engineer (the Appellants). To substantiate their contention, the Appellants have relied upon the judgements in Abhimanyu Nayak and others vrs. Basanta Mohanty and others (W.P.(C) No.15161 of 2008), Gangappa Gurupadapa Gugwad Gulbarga vrs. Rachawwa and others (Civil Appeal No.1732 (N) of 1966 decided on 23.10.1970), Bishandayal and sons vrs. State of Orissa and others (Civil Appeal No.2522 of 1992 decided on 07.12.2000). On the Respondent-Company’s side, there was no participation in the hearing. Respondent-Company
In ultimate analysis, the Hon’ble Court has dealt with the two substantial questions of law, being interlinked, analogously. While doing so, the Hon’ble Court, placing reliance upon a catena of judgments (in paragraph 16), has expounded upon the law regarding serving of notice under section 80(1) of C.P.C. It has been observed that the primary rationale behind issuance of notice under section 80(1) of C.P.C. is to afford the noticee (i.e. state authority) an opportunity to reconsider the claims of the notice and make attempts to settle/resolve the same without engaging in litigation. Furthermore, although the service of notice is mandatory in nature, the said requirement can be considered as waived if no objection to the maintainability of the suit in question was raised by the state authority on the ground of non-service of the notice, at the stage of trial. This being the scenario in the present matter, the Hon’ble Court has observed that the contention of the present Appellants that the original suit is not maintainable on account of non-service of section 80(1) notice, is not valid. Additionally, the judgements relied on by the Appellants have been held to be not applicable to the present case.

Finally, the Hon’ble Court has held that there is no justification for interfering with the concurrent findings of the learned trial court and the 1st Appellate Court. As such, the present 2nd appeal was dismissed and the judgements and decrees passed in n T.S. No.04 of 1992 and T.A, No.04 of 1993 were confirmed.