RAM PYARE Vs. MAHADEO

JUDGEMENT

(1.) By this Second Appeal one Ram Pyare has impugned the correctness of an order dated 13th March, 1965 of the Court of District Judge, Gorakhpur refusing to condone the delay in filing an appeal from the decree of the Court of IInd Additional Munsif, Gorakhpur, dismis sing suit No. 442 of 1961, on an application under Section 5 of the Limitation Act. The appeal was also simultaneously rejected as time barred by the Learned District Judge by the very same order. The plaintiffs who number 10, were the appellants in the lower appellate Court. The application under Section 5 of the Limitation Act appears to be signed only by the counsel for the appellants. The application is expressed to have been made by "ram Kumar, Appellant applicant. " It says: "that the applicant was entrusted with the work of filing the appeal but suddenly information was received from village Tighra, Tappa pachawara, Pargana Haveli, Distt. Gorakhpur that Sri Raghubir a rela tion was seriously ill so the applicant went there to see him on 9-11-1964 but on the next day the applicant fell victim to cholera and got cured on 14-11-1964. So there was some delay in filing the appeal. The delay in filing the appeal is not intentional rather accidental and the applicant should be given benefit of Section 5 Limitation Act. " The application is dated 16th November, 1964 and the appeal was presented the same day along with it. There is a medical certificate dated 14th Novem ber, 1964 of Dr. Chandrama Singh, B. A. , A. B. M. S. (B. H. U.) which certifi ed that; "sri Ram Kumar S/o. Sri Jhakari Mallah has been suffering from Cholera and he was under my treatment since 10-11-1964, to 14-11-1964. Now he is fit. " There is an affidavit of Ram Kumar in support of the application. It only repeats the contents of the application already quoted above. The order of the learned District Judge shows that the appeal before him would have bien within time if filed on 13th November, 1964. According to the learned District Judge, the appeal could have been filed on 14th November, 1964, inasmuch as the medical certificate showed that Ram Kumar was fit on 14th November, 1964; and there was no explanation for not filing the appeal on 14th November, 1964 or on 15th November, 1964. Learned Counsel for the appellant urged that 15th November, 1964 was a Sunday and that being so the entire reasoning of the Learned District Judge for dismissing the application under Section 5 of the Limitation Act falls to the ground. At any rate, he urged that such a hyper-technical view of things is never taken by the Courts, and in view of the fact that the appeal was filed on 16th November, 1964, which was the next working day after 14th November, 1964, the delay in filing the appeal was of one day only and it should have been condoned. Before going into the merits of the case, it appears necessary to notice a preliminary objection to the maintainability of the second appeal. It has been urged by the Learned Counsel for the respondents that the order rejecting the appeal was not a decree and that being so, the second appeal was incom petent. Mr. S. R. Misra, Learned Counsel for the appellant, urged in rejoinder that the rejection of the appeal as time barred did finally put the litigation to an end and did conclusively determine the rights of the parties and was, there fore, a decree. In the alternative, he urged that even if the Court were to have any doubts about that, and came to the conclusion that the appeal was not maintainable, the order of the Learned District Judge was so plainly arbitrary and wrong that it was fit to be set aside by this Court in the exercise of i supervisory jurisdiction under Article 227 of the Constitution, which could be exercised suo moto in this case as the record of the lower appellate Court is before this Court. The following is the definition of decree as contained in Clause (2) of Section 2 of the Code of Civil Procedure:- " (2) "decree" means the formal expression of an adjudication which, so for as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in contro versy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include. (a) any adjudication from which an appeal lies as an appeal from an order, or (b) Any order of dismissal for default. Explanation.-A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final. " In Mamuda Khatoon and others v. Beniyan Bibi and others A. I. R. 1976 Cal. 415, a Full Bench of the Calcutta High Court held that: "when an appeal is barred by Limitation and an application is made under Section 5 of the Limitation Act for condonation of the delay along with memorandum of appeal, until the application under Section 5 is allowed the appeal cannot be filed and admitted at all" and that until the application under Section 5 of the Limitation Act is allowed "the appeal is nonest," and in that event the question of rejecting the memorandum of appeal does not arise at all. On the other hand, when the application under Section 5 of the Limitation Act is rejected, "the, order rejecting the application cannot be a decree" and "the order rejecting the memorandum of appeal is merely an incidental order. " Indeed, if I may with respect add, there is no adjudication of the rights of the parties by the order which rejects the memorandum of appeal. The adjudica tion on the application for condonation of the delay by the order rejecting the application, is not an adjudication of any substantive rights of the parties in the case, which may have been claimed by one and denied by the other. It is an ad judication merely of the procedural rights of the parties, inasmuch as it denies the right of appeal to the party whose application is dismissed on the ground of latches. It does make the judgment sought to be appealed from final. But that result follows even when a judgment is not appealed from. The omission to appeal from a judgment within the limitation prescribed by law is not very different in character from the act of not appealing from a judgment, for even when it is said that the judgment has not been appealed from, it means that the judgment has not been appealed from upto the date of the making of that statement, although the limitation for filing an appeal has already expired. The adjudication conclusively determining the rights of the parties, spoken of in definition of a decree, is "with regards to all or any of the matters in controversy in the suit. " The right to file an appeal is not one of those matters which could be said to be "in controversy in the suit. '' Such matters are thus those which relate to the substantive rights of the parties on the merits of the dispute between them and do not relate to matters of procedure in accordance with which that dispute is adjudicated upon. It has been stated in the A. I R. Commentaries on the Code of Civil Procedure, IX Edition Volume I at pages 24- 26 that the word "rights" in the definition "means subs tantive rights in regard to the subject matter of the suit, "and does not include" rights in matters of procedure," or a mere right to sue "and thus" interlocu tory orders on matters of procedure which do not decide the substantive rights of the parties inter se in respect of the subject-matter of the suit are not dec rees. " Decisions on question of limitation, jurisdiction, res-judicata and maintainability of a suit which determine only the plaintiff's rights are also not decrees. After giving an illustration of a case where a Court proceeds to hear a suit after negativing the defendant's contention as to the bar of limita tion or res-judicata as an example where the decision negativing the defendant's contention is not a decree, the comment proceeds on to state that: "where, how ever, the effect of an order is to dimiss the appeal itself, it amounts to a denial of the substantive rights claimed by the plaintiff against the. defendant and may amount to a decree if other elements are present. " One could readily give example of a case where such other elements could be said to be present. For instance, if after holding that the basis on which the plaintiff claims title to the property in suit, is res- judicata, by reason of an earlier decision. The Court proceeds to dismiss the suit with the finding that the plaintiff could not be said to have the title claimed by him, consistently with the earlier decision, the judgment dismissing the suit would surely be a decree. There is no end to cases on this vexed question and no useful purpose would be served by citing decisions given in a different context. The Full Bench decision of the Calcutta High Court in Mamuda Khatoon v. Beniyan Bibi (supra) is a case directly in point and in the absence of any binding authority to the contrary, I am inclined to follow it. Before I proceed to discuss the cases decided by other High Court, I must refer to two decisions of our High Court. The first one is Hira Lal v. Jhunni Lal and others A. I. R. 1964 All. 190. That was a case of revision from an order rejecting an application under Section 5 of the Limitation Act praying for condonation of delay in filing an appeal in the lower Court. It was contended that the revision was not maintainable, inasmuch as subsequent to the rejection of the application under Section 5 of the Limitation Act, the appeal had been dismis sed and a decree pursuant to the dismissal of the appeal had come to be drawn up. Manchanda, J. met the contention in the following words, at page 192, Paragraph 5:- "if the drawing up of the decree was merely the result of the rejection of the application by the Additional District Judge, under Section 5 of the Limitation Act, then manifestly that decree depends for its validity upon the very order which is now being impugned before me. The decree passed was not as a result of the decision on merits and, therefore, it is difficult if not impossible to contend that the passing of the decree renders the revision application in the present case in fructuous. The acceptance of the present revision application and its remand would ex-necessitate result in the super session of the decree which depended wholly for its validity upon the order rejecting the application under Section 5 of the Act. The existence of an alternative remedy can never be an absolute bar to the exercise of the powers of this Court under Section 115 of the Code for curing manifest injustice. " While it may not be easy for a technical lawyer to say that the existence of an alternative remedy is not a bar to the exercise of the revisional powers under Section 115 of the Code of Civil Procedure, for, that section specifically provid es that a revision lies only where no appeal lies, yet the fact remains that the learned Judge did not attach any finality to the so-called decree passed pursuant to the order rejecting the application under Section 5 of the Limita tion Act, and declared that its existence was wholly dependent on the continu ed existence of the order under Section 5 of the Limitation Act. The fact remains that the learned Judge entertained the revision. If an appeal lay as an appeal from decree from the orders of the District Court rejecting the appeal as time barred, on the rejection of the application under Section 5 of the Limitation Act. Passed simultaneously, the learned Judge could not have entertained a revision from the order rejecting the application under Section 5 of the limitation Act. The next case of our Court, to which my attention was drawn, is Sohan v. Abdul Hameed A. I. R. 1976 All. 159. In this case a Second Appeal was entertained, without objection, from the orders of the District Court rejecting an appeal as time barred on the rejection of an application under Section 5 of the Limitation Act, and finding that the order of the District Judge on that point was correct, T. S. Misra, J. dismissed the Second Appeal without considering anything more therein. The question whether the Second Appeal was maintainable was not raised before the learned Judge in that case. A case is an authority for what it decides and not for what it does not decide. The cases, which are all of other High Courts, to which my attention was drawn by the Learned Counsel for the appellant in support of maintainability of Second Appeal as an appeal from a decree, are, in chronological order; (1) Farzond All v. Abdul Hameed (1921) 60 I. C. 493 (Pat. ). It has been observed in that case that if a memorandum of appeal is drawn up in proper form, it cannot be rejected under Rule 3 of Order 41 of the Code of Civil Procedure, but if the appeal is barred by Limitation, it has to be dismissed under Rule 11 of that order and that the rejection of an appeal on the ground of limitation, therefore, amounts to a dismissal thereof, and such order of rejection is appealable with respect, an appeal filed beyond limitation cannot be received at all, unless it is accom panied by an application under Section 5 of the Limitation Act, inasmuch as in case where an appeal is not accompanied by such an application and, on the face of it, it appears to be barred by limitation, and it is not contended by the appellant that it is not so barred, the appeal has to be dismissed under Section 3 of the Limitation Act without waiting for the respondent to come and show to the Court that the appeal is barred by limitation. An appeal, which is not accompanted by an application under Section 5 of the Limitation Act, in case it is filed after the expiry of limitation, cannot be said to be a proper appeal and cannot be admitted or registered by the appellate Court under Rule 9 of Order 41 of the Code of Civil Procedure. If there was any doubt as to that, Rule, 3-A of Order 41, instead therein to be the 1976 amend ment of the Code of Civil Procedure, makes it clear that an appeal presented after the expiry of the period of limitation must be accompanied by an applica tion supported by an affidavit, under Section 5 of the Limitation Act and the appeal cannot be heard under Rule 11 of Order 41 unless the application under Section 5 of the Limitation Act is allowed after issue of notice of the application to the respondent. It, therefore, appears to me that the rejection of an appeal as time barred, is not a dismissal of the appeal after hearing under Rule 11 of Order 41 of the Code of Civil Procedure. I am, therefore, unable to subscribe to the view expressed by the Patna High Court in the above case. (2) Gajadhar Bhagat v. Moti Chand A. I. R. 1941 Pat. 108, is also a decision of a learned Single Judge of the Patna High Court. He observed: "it is well settled that rejection of a memorandum of appeal being out of time does amount to a decree and is appealable. " I find it difficult to subscribe to the view. An order rejecting the memo randum of appeal as time barred, does, no doubt, impart finality to the litiga tion between the parties and could in that sense be described as a final order, but it does not follow as a matter of course that it must also be a decree, and appealable as such. Unlike to earlier Code of Civil Procedure. It is not enough, in the 1908 Code that it should have decided the suit or the appeal. It must also be an adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. An Appeal, when it is heard on the merits, does involve a rehearing of the suit on the points raised before the appellate Court and the decision by the appellate Court of the points raised before it would surely amount to a decree but a determination of an appeal by an order rejecting it as time barred or as not properly drawn up or for want of prosecution could not be described an adjudication by the appellate Court which conclusively determines the rights of the parties with regard to any of the matters in controversy in the suit, in asmuch as none of the matters in controversy in the suit could in that situation be said to have been raised before the appellate Court. The definition of decree shows that the language used therein did not include the rejection of a plaint of the determination of any question within Section 47 or Section 144, in as much as such orders could not be said to be orders passed on any of the matters in controversy in the suit, the order rejecting a plaint being an order passed before the start of the controversy in the suit between the parties and the orders under Sections 47 and 144 being orders passed after the final adjudi cation of the controversy by the decree passed in the suit. That seems to be the reason why an order rejecting a plaint and orders under Sections 47 and 144 were included within the definition of decree by a deeming clause. (3) Banwari Lal v. Neelakantham A. I. R. 1965 Orissa 102. In this Division Bench decision of the Orissa High Court, it was held that an order rejecting an appeal as time barred is a decree. It appears that a learned Single Judge of the Orissa High Court had, in the case of Achyuta Dhangadamajhi v. Sibaram Dhanga- damajhi I. L. R. (1962) Cut. 818, taken the view that such an order was not a decree. According to the Division Bench, with the exception of that case, there was no decision of any other High Court to the effect that the dismissal of an appeal on the ground that it is barred by Limitation with the consequential result of affirming the judgment and decree of the lower Court is not a decree, as defined in the Code of Civil Procedure. The Bench observed that, on the other hand, all the High Courts have uniformally taken the view that such an order would amount to a decree. The first decision referred to by the Bench was that of this Court in Gulab Rai v. Mangi Lal (1885) I. L. R. 7 All. 42. The decision of that case turned on the definition of decree as contained in the Civil Procedure, 1881. A Bench of this Court, Mahmood and Duthoit, JJ. , observed on page 43-44 (last): "in the Civil Procedure Code there is no separate provision which allows the appellate Court to "reject" a memorandum of appeal on the ground of its being barred by limitation Section 543 is limited to cases in which the memorandum of appeal is not drawn up in the manner prescrib ed be the code, and it is only by applying Section 54 (c), mutatis mutandis, (as provided by the last part of Section 582), to appeals that the Code can be understood to make provision for rejection of appeals as barred by limitation. However, Section 4 of the Limitation Act clearly lays down that every "appeal presented after the period of limitation prescrib ed, therefore, shall be dismissed. " It is therefore clear that the order of the District Judge in this case must be taken to be one which falls under the definition of "decree" within the meaning of Section 2 of the Code, as the order, so far as the Judge was concerned, disposed of the appeal. We do not think any other view can give effect to the provisions of the Code, for we cannot hold that the Legislature intended such orders to be final. " The decision turned on the finality imparted by the order or the fact that it finally disposed of the appeal. The test for determining whether a certain order amounted to a decree or not under the 1881 Code of Civil Procedure was whether it finally disposed of the suit or the appeal and that test being satis fied the order rejecting an appeal is time barred was held to be a decree. That, however, is not the position under the 1908 Code. As observed above, in order to constitute a decree within the meaning of the definition under the 1908 Code, the order in question must be the formal expression of an adjudica tion which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit, and may be either preliminary or final. The Orissa High Court did not notice the distinction between the definitions of decree in the 1881 Code and the 1908 Code. So far as i am concerned, the decision of a Division Bench of this Court in Gulab Rai's case (supra) is binding on me, but as pointed out above, that decision can no longer govern the matter in view of a change in the defintion of decree. It is not necessary for me to refer to the other decisions noticed by the Bench of the Orissa High Court in Banwari Lal's case (supra ). For the reasons already given in the course of this judgment, I find myself unable to subscribe to the view taken by the Bench of the Orissa High Court in Banwari Lal's case (supra ). I am accordingly of the view that the order under appeal is not a decree as defined in the Code of Civil Procedure 1908. That being so the appeal is incompetent. And in view of the amend ment of Section 115 of the Code of Civil Procedure in the State of Uttar Pra desh in 1978, ro revision lies to this Court from the said order, inasmuch as it was passed in a suit valued at less than Rs. 20. 000/- although it was passed by the Court of the District Judge in a proceeding in the nature of an appeal from the decree in that suit. See Jupitar Chit Fund (P.) Ltd. v. Dwarka Diesh 1979 A. L. J 685 (F. B.) and Sri Vishnu Awtar v. Shiv Autar A. I. R. 1980 S. C. 1575. It therefore, appears necessary to consider whether this Court should interfere with the order of the District Judge in exercise of its supervisory jurisdiction under Article 227 of the Constitution. In Aidal Singh and others v. Karan Singh and others (A. I. R. 1957 All. 414), a Full Bench of this Court held that the power under Article 227 is both judicial and administrative, it can be exercised suo motu by the Court as the custodian of all the justice within the limits of its territorial jurisdiction and for the vindication of its position as such. For the exercise of the power under Article 226, the Court has framed rules. There are no such rules for the exer cise of power under Article 227. There are no restrictions indicated in Article 227 itself, and the restrictions, if any, are self-imposed. It is the wide amplitude of the powers of this Court under Article 227 which restricts the occasions for its exercise. The question is whether the present case is a fit one for the exercise of this Court's powers under Article 227 and that too suo motu on the record which is being the Court. The grounds, on which the learned District Judge rejected the appli cation for condonation of the delay in filing the appeal, have already been referred to above. It has also been noticed above that 15th November, 1964 was a Sunday. The medical certificate filed with the appeal showed that Ram Kumar, who was one of the appellants and seems to have been entrusted with the duty of filing the appeal on behalf of the other appellants as well, had an attack of Cholera and was under the treatment of the doctor who issued it from 11-9-1964 to 14-11-1964 although the medical certificate also says on 14-11- 1964 that 'now he is fit. " The Learned District Judge did not dis believe the medical certificate and although one cannot place implicit reliance on a medical certificate of the kind produced by Ram Kumar in the appellate Court, it is not possible to reject that certificate out of hand in this case. Firstly the learned District Judge did not reject it, secondly all that the certi ficate did do was to explain the reasons for not filing the appeal on the 13th and the 14th November, 1964. It cannot be disputed that Ram Kumar saw the doctor at Gorakhpur on 14th November, 1964 for obtaining the medical certificate. If he had been in a position to file the appeal on the 14th November, 1964, it is reasonable to suppose that he would have done so as a prudent person. Taking all these facts and circumstances into consider ation, I am of the opinion that the case was one in which any Court would have condoned the delay in filing the appeal under Section 5 of the Limitation Act. It has already been seen above that the order of the District Judge is undoubtedly vitiated in so far as he took the vie that there was no expla nation for not filing the appeal on 15th November, 1964. The appeal could not have been filed that day because it was a Sunday. It must, therefore, be held that the learned District Judge did not exercise the discretion which he was. required to exercise judicailly under Section 5 of the Limitation Act. Justice requires that the order of the learned District Judge, rejecting the application under Section 5 of the Limitation Act and rejecting the appeal before him as time barred, must be set aside and 1 do so in exercise of this Court's powers under Article 227 of the Constitution. In the result, the appeal is dismissed as not maintainable, but in exercise of this Court's powers under Article 227 of the Constitution, the order dated 13th March, 1965 of the Court of the District Judge, Gorakhpur, in Misc. case No. 434 of 1964, dismissing the application under Section 5 of the Limita tion Act and rejecting the appeal from the decree in suit No. 442 of 1961 of the Court of the Second Additional Munsif, Gorakhpur, as time barred, are set aside. Instead the said application under Section 5 of the Limitation Act is allowed. The delay in tiling that appeal in the Court of the District Judge, Gorakhpur, is condoned, and it shall be registered and heard by that Court or by any other Court of competent jurisdiction, to which it may be assigned by the District Judge, Gorakhpur, in accordance with law. The lower Court's record shall be sent down immediately to the Court of the District Judge, Gorakhpur. The 19th October, 1981 is fixed as the date for appearance of the parties in the Court of the District Judge, Gorakhpur, under Order 41 Rule 26a, C. P. C. for receiving the directions of that Court as to the further proceedings in the appeal from the decree in suit No. 442 of 1961 of the Court of the second Additional Munsif, Gorakhpur. In the circumstances, the parties shall bear their own costs of this Court. .