SADHU RAM Vs. BISHANA RAM

JUDGEMENT

(1.) This Regular Second Appeal has been preferred by Sadhu Ram one of the defendants against the judgment and decree dated August 30, 1979, of the Court of learned Additional District Judge, Ambala, whereby application under Sections 5 and 14 of the Limitation Act preferrgd by Sadhu Ram before him was rejected,

(2.) It was argued by the learned Counsel for the appellant that when the appeal was filed before the learned District Judge it was entertained without there being any objection as to the Forum. The appeal remained pending before the learned District Judge for a considerable long time, and it was on January 10, 1978, that the appeal was ultimately returned to be filed in a proper Forum. The appellant lost no time and filed the same the very next day in the Court of the Senior Subordinate Judge who then was exercising the enhanced appellate powers. It was also argued that according to the allegation of the parties there was a chhan in the bara in dispute and that chhan being temporary structure cannot be treated as a building. As such, the learned Counsel who filed the appeal before the District Judge treated the suit as a land suit, calculated the valuation thereof more than Rs. 250/- and acting bona fide the appeal was filed in the Court to the District Judge who ultimately returned the same for filing it in a Court of competent jurisdiction.

(3.) On the other hand, it was argued by the learned Counsel for the respondents that there is no allegation that the property was being used for agricultural purposes or purposes subservient to the agricultural or it was assessed to iand revenue. Therefore, the property in dispute cannot be treated as land and the suit as a land suit. It was further argued that Mr. Jasmer Singh Advocate, who filed the appeal in the Court of the District Judge, had a long-standing at the bar, was having vast experience and well-known Advocate on the civil side. He was expected to know the correct legal position as also the correct position about the Forum where the appeal was to be filed. He, however, did not take care to know the legal position about the Forum but filed the appeal in the Court of the District Judge. Even during the pendency of appeal, an objection was raised on behalf of the respondents regarding the maintainability of the appeal in the Court of the District Judge, but still he did not withdraw the appeal to file the same in a Court of competent jurisdiction and pursued the same in the Court of the District Judge, which was not the right Forum for institution of the appeal. It is not disputed that vide this Court's notification No. 113- Gax/XXI C.6 dated May 6, 1976 under Section 39(3) of the Punjab Courts Act, 1918, the then Senior Subordinate Judge, Ambala, was invested with the powers to entertain and dispose of the appeals up to a value of Rs. 500/-. A scrutiny of the record would show that value of the suit for the purposes of Court-fee and jurisdiction was Rs. 400/- being the market value of the property in dispute and a Court-fee of Rs. 55/- was paid on the plaint. A sum of Rs. 400/- was taken to be the value of the appeal which certainly was less than Rs. 500/-. The learned Counsel for the appellant could not dispute the contention of the learned Counsel for the respondents that an objection regarding the maintainability of the appeal before the District Judge was raised on April 27, 1977. Despite that objection the appeal was not withdrawn for filing the same in a Court of competent jurisdiction and was pursued up to January 10, 1978 when the appeal was ordered to be returned for presentation before a Court of competent jurisdiction by the learned District Judge, Ambala. Therefore, keeping in view the facts and circumstances of the case, it cannot be said that the learned Counsel who instituted the appeal in the Court of District Judge, Ambala had committed a bona fide mistake, acted in good faith and pursued the appeal in a bona fide manner. The record does not show that any duly sworn affidavit of the Advocate who filed the appeal stating therein that he acted in a mistaken belief and that was bona fide one, was not filed along with the application under Sections 5 and 14 of the Limitation Act. That further goes to show that even till the filing of that application, the learned Advocate appears to have acted in a very casual manner. That implies that the Advocate who had filed the appeal or the application had not acted diligently. In Balbir Singh v. Bogh Singh, no objection was raised by the respondents challenging the jurisdiction of the Court to hear the appeal and in Shrimati Shanti Devi v. Satya Pal & Ors., it was not made out that the Advocate who filed the "appeal had not acted in good faith and it is in those circumstances that the appellant was held to be entitled to the deduction of the period during which the appellant prosecuted the appeal before the District Judge and delay was condoned. In the facts and circumstances of the instant case, decision in Balbir Singh's and Shrimati Shanti Devi's cases (supra), are not of any help to the appellant. The matter may be viewed from another angle. The present appeal has been filed against the order whereby application under Sections 5 and 14 of the Limitation Act was rejected. As envisaged under Rule 1 of Order XLI Code of Civil Procedure, appeal lies against a decree. However, in the instant case, only application under Sections 5 and 14 of the Limitation Act was rejected and the appeal was not decided on the merits. Therefore, no decree could be drawn. The learned Counsel for the appellant has pointed out that the first Appellate Court had drawn the decree wherein it is mentioned that the appeal was dismissed as barred by time For the reasons stated above, the decree drawn by the first Appellate Court in the eye of law is no decree and as such the appeal is incompetent. Faced with this, it was argued by the learned counsel for the appellant that the order of rejection of a plaint on the ground of limitation under Order VII, Rule 11 read with Section 2(2) of the Code amounts to a decree and in view of the provisions contained in Section 107(2) of the Code, Appellate Court has the same powers and performs the same duties as are conferred by the Code on the courts of original jurisdiction. Therefore, if Rule 11 of Order VII is read with Section 107(2), the order of rejection of memorandum of appeal also amounts to a decree. Therefore, argued the learned counsel, that the appeal is competent. The contention raised is without any force. It cannot be disputed that rejection of plaint on the ground of limitation is a decree and as provided under Section 107(2) of the Code, Appellate Court has the same powers and performs the same duties as are conferred by the Code on the courts of original jurisdiction in respect of the suits. "Decree" has been defined under Section 2(2) of the Code. The orders though similar to the orders expressly included in the definition, cannot be included in the definition of the decree. As such, the rejecttion of the memorandum of appeal cannot be equated with rejection of the plaint as provided under Order VII, Rule 11 of the Code. The order of rejection of memorandum of appeal does not find place in the definition of decree. It is difficult to presume that the Legislature while casting the definition of decree was not aware of such a situation. The Legislature if intended could include the order of rejection of memorandum of appeal in the definition of "decree" as other orders have been mentioned. Therefore, it cannot be said that order of rejection of memorandum of appeal amounts to a decree. Only an application under Sections 5 and 14 of the Limitation Act was rejected by the learned Additional District Judge and the appeal was not disposed of on merits. Therefore, rejection of application for condonation of delay is not a decree. Reference may be made to Des Raj v. Om Parkash & Ors. Therefore, the appeal against such an order is not competent and on that score it deserves to be dismissed. The contention of the learned counsel for the appellant that the appeal may be treated as a revision, is also without substance. The scope of revision is limited one. Provisions of Section 115 of the Code of Civil Procedure can be pressed into service when the High Court is to correct the errors of jurisdiction committed by the subordinate courts and the High Court cannot interfere with the findings of the fact arrived at by the subordinate courts and substitute its own decision after re-appraisal of the evidence which has already, been done by the subordinate Courts. I find no case is made out to invoke the revisional jurisdiction.