STATE OF HIMACHAL PRADESH Vs. BHAYNSROO

JUDGEMENT

(1.) The above Revision Petition has been filed against the decision of the Additional District Judge, Mandi, dated 17.8.1996 disposing of an application said to have been filed under Section 5 of the Limitation Act filed by the Appellant-State alongwith an appeal filed before the first Appellate Court, whereunder the Court below has chosen to decline to condone the delay and in rejecting the said application under Section 5 ordered that the records be tagged with the main file. The Appellant-State has chosen to file initially the present proceedings in the form of a Regular Second Appeal apparently guided and carried away by the fact that in the order under challenge in this proceeding, the proceeding that has been given a disposal is shown to be a Civil Appeal No. 36/1989. There can be no controversy over the position that not a word has been said about the merits of the case or any decision has been rendered on the merits of the suit claim which is the subject matter of the main appeal itself and that the disposal was only of the application filed under Section 5 of the Limitation Act. When the matter came up before Court on 23.5.1997, Khurana, J. ordered that prima facie, since the impugned order has been passed under Section 5 of the Limitation Act dismissing the application for condonation of delay in filing the appeal before the first Appellate Court, the second appeal is not maintainable and placing on record the prayer of the learned Assistant Advocate General, then appearing before Court, that the appeal may be treated as a Civil Revision, a direction came to be issued by the learned Single Judge to register the appeal filed in this Court as Civil Revision and thereupon place the matter for orders. When the matter next came before the learned Single Judge on 12.6.1997 the learned Single Judge ordered the revision to be admitted and directed issue of notice to the Respondent.

(2.) Before adverting to the merits of the claim of the Appellant-State as also of the Respondent about the legality, propriety or desirability or otherwise of the need to condone the lapse or considering the question of the legality or otherwise of the order of the Court below declining to condone the delay in filing the appeal before the said Court, it become necessary to consider the question of the maintainability or otherwise of the revision as such, in the teeth of the conflicting stands taken by the learned Counsel appearing on either side. Though Mr. M.L. Chauhan, learned Deputy Advocate General would contend that the order directing the proceedings to be registered as a revision only is in accordance with law since the order under challenge is one pertaining to the condonation of delay in filing the first appeal before the first Appellate Court, Mr. Kuldip Singh, learned Counsel for the Respondent with equal force and vehemence contended that no revision lies against the order under challenge in as much as a result thereof the appeal before the Court below itself stood dismissed and therefore, the revision is not maintainable. In elaborating this aspect of the plea raised for the Respondent, it has been contended that inasmuch as the effect of declining to condone the delay in filing the appeal involves the disposal of the appeal itself and the termination of the proceedings filed as an appeal before the first Appellate Court, it was considered to be a disposal of that appeal itself, whatever be the reasons be it on the merits of the case or summarily on any other ground. Several decisions have been brought to my attention by both the learned Counsel appearing on either side and it is proper to advert to sum of them to deal with this question which is of a recurring nature to clarify the position of law that has to be applied not only for the purpose of this case, but to be observed in future also.

(3.) Reliance has been placed by the learned Counsel for the Petitioner on, Mamuda Khateen v. Berdyan Bihi, 1976 AIR(Cal) 415 wherein a Full Bench of the Calcutta High Court held that an order rejecting the memorandum of appeal following the rejection of an application under Section 5 of the Limitation Act for condonation of the delay in filing the appeal is not a decree but an incidental order against which an application in revision under Section 115 of the Code may lie but no appeal under Order 43, Rule 1 of the Code can be preferred Ainthu Charon Panda v. Sitaram Jayanarayan Firm, 1984 AIR(Ori) 230 a Full Bench of the Orissa High Court, after exhaustive analysis of the relevant case law on the subject, held that an order rejecting a memorandum of appeal or dismissing an appeal, following the rejection of an application under Section 5 of the Limitation Act for condonation of delay in preferring an appeal is not a decree within the meaning of Section 2 (2) of the Code of Civil Procedure and it is only an order against which an application in revision under Section 115 of the Code may lie but no appeal under Order 43, Rule 1 of the Code can be preferred. In Des Raj v. Om Prakash, 1986 AIR(P&H) 3 a Division Bench of the said High Court has held that an order dismissing an appeal after dismissal of an application under Section 5 of the Limitation Act for condoning the delay in filing the appeal is not a decree within the meaning of Section 2 (2) of the Code. It does not amount to confirment of the decree of the trial Court and, therefore, cannot be held to be a decree within the meaning of Section 2 (2) of the Code. An appeal filed in that case also seems to have been treated as a revision petition and dealt with. In coming to such a conclusion the learned Judges of the Division Bench after adverting to the provisions noticed in Order 41, Rule 3-A, which obliged an Appellant at the time of filing of appeal which is barred by limitation to file an application giving the reasons that he had sufficient cause for not filing the appeal within the period of limitation observed that it was incumbent also upon the Court to decide the application before it proceeds to decide the appeal on merits. It was observed further therein that the Court can dismiss the application without issuing notice or after issuing notice to the Respondent and in case the Court accepts the application only then it can proceed under Order 41, Rules 11 and 13 to dispose of the appeal and if for any reason the application for condoning the delay is dismissed, the question of registration of the appeal under Rule 9 and its consideration under Rule 11 does not arise Bal Krishan and Ors. v. Tulsa Bed and Anr, 1987 AIR(MP) 120 a learned Single Judge of the said High Court held that when an appeal alongwith an application for condonation of delay under Section 5 of the Limitation Act has been filed and an order is passed dismissing it as time barred, it does not amount to a decree and, therefore, a second appeal against such an order is not maintainable even if the lower Court treats it as a decree and the same is drawn up as such. In coming to such a conclusion in addition to adverting to the other decisions earlier noticed above, reliance has been placed by the learned Single Judge on the principles laid down in the decisions reported in AIR 1954 SC 73 Raja Kulkarni v. State of Bombay and, Diwan Bros. v. Central Bank of India, 1976 AIR(SC) 1503 that where a statutory entitlement is non-existent no act of any Court embodying any order in the form of a decree by itself can make a final order of any Court appealable if the order was really, in fact and law, not a decree. In, Ajit Singh v. Bhagwanlal, 1989 AIR(MP) 302 a Division Bench of the Madhya Pradesh High Court, while placing strong reliance upon the insertion of Rule 3-A of Order 41, Code of Civil Procedure, held that if Rule 3-A (2) of Order 41 mandates that Courts of appeal shall not proceed to deal with the appeal under Rule 11 or 13 without finally deciding the question of limitation that would constitute an express bar on the appellate Court to hear the appeal under Section 96 and, therefore, when the lower appellate Court exercises its jurisdiction to dismiss the appeal as time barred under new Rule 3-A of Order 41 it merely decides the question as to whether the Appellant had sufficient cause for not presenting the appeal within the period prescribed by the law of limitation and that question evidently would be a pure question of fact and the fact that the Court below has drawn up any decree as though it is an appeal, is wholly immaterial in adjudicating the maintainability or otherwise of a further appeal against such an order.