JAGDISH KANWAR Vs. RAM GOPAL SINGH

JUDGEMENT

(1.) THIS writ petition under Articles 226 and 227 of the Constitution of India has been filed by the petitioners-defendants on 6. 12. 2003 against the respondents with the prayer that by an appropriate writ, order or direction, the impugned order dated 16. 10. 2003 (Annex. 5) passed by the learned District Judge, Bikaner in Civil Appeal (Decree) No. 33/2002 by which the appeal of the petitioners-defendants was dismissed as being time barred, be quashed and set aside and the appeal of the petitioner-defendants be allowed and the judgment and decree dated 3. 10. 2001 (Annex. 1) passed by the learned Civil Judge, Bikaner in original civil suit No. 684/93 by which the suit of the respondent No. 1-plaintiff for possession of the disputed property was decreed, be quashed and set aside.

(2.) THE case of the petitioners-defendants as put forward by them in this writ petition is as follows:- THE respondent No. 1-plaintiff Ram Gopal Singh filed a suit for recovery of possession and means profit against one Bhanwar Singh (hereinafter referred to as deceased), who was husband of the present petitioner-defendant No. 1 and father of the present petitioner-defendant No. 2 on 6. 5. 1988 in the Court of District Judge, Bikaner and thereafter, it was transferred to the Court of Civil Judge, Bikaner where it was received on 16. 5. 1993 and registered as Civil Original Suit No. 684/93. During the pendency of that suit, the deceased died and the present petitioners-defendants were taken on record as LRs of the deceased. THE said suit was contested by the petitioners-defendants by filing written statement and evidence was led by both the parties and thereafter, after hearing both the parties, the learned Civil Judge, Bikaner through judgment and decree dated 3. 10. 2001 (Annex. 1) decreed the suit of the respondent No. 1-plaintiff for possession and the present petitioners-defendants were directed to hand over the possession of the disputed property to the respondent No. 1 plaintiff. THE further case of the petitioner-defendants is that aggrieved from the said judgment and decree dated 3. 10. 2001 (Annex. 1) passed by the learned Civil Judge, Bikaner, they preferred first appeal under section 96 and Order 41 Rule 1 CPC before the learned District Judge, Bikaner through Annex. 2 and in that first appeal, an application under section 5 of the Limitation Act for condonation of delay was also filed through Annex. 3. THE plaintiff-respondent No. 1 also filed a reply (Annex. 4) to the application under section 5 of the Limitation Act. THEreafter, after hearing both the parties, the learned District Judge, Bikaner through impugned order dated 16. 10. 2003 (Annex. 5) rejected the application of the present petitioners-defendants filed under section 5 of the Limitation Act and thus, the first appeal of the present petitioners-defendants was treated as time barred. THE further case of the petitioner-defendants is that the impugned order Annex. 5 dated 16. 10. 2003 rejecting the application of the petitioners-defendants filed under section 5 of the Limitation Act is wholly perverse, illegal and unjustified and thus, it was prayed that it should be quashed and set aside and the first appeal of the petitioners-defendants be allowed and consequently, the judgment and decree dated 3. 10. 2001 (Annex. 1) passed by the learned Civil Judge, Bikaner be quashed and set aside. On behalf of the plaintiff respondent No. 1 and for respondent No. 2, Mr. B. K. Vyas has given his appearance and during the course of arguments, he has submitted that against the impugned order dated 16. 10. 2003 (Annex. 5) passed by the learned District Judge, Bikaner, the present petitioners-defendants preferred second appeal before this Court being S. B. Civil Second Appeal No. 282/2003 and in that second appeal, an objection was taken by the learned counsel appearing for the plaintiff-respondent No. 1 that the said second appeal was not maintainable and that objection prevailed and on the request of the learned counsel for the petitioners-defendants, that second appeal was converted into civil revision through order dated 18. 11. 2003 passed by this Court and that revision was registered as S. B. Civil Revision No. 1318/2003. It was further submitted by the learned counsel for the respondents No. 1 and 2 that after conversion of the second appeal into revision, the learned counsel for the petitioners- defendants withdrew that revision with liberty to avail appropriate remedy and thus, this Court through order dated 5. 12. 2003 dismissed that revision as withdrawn and when this being the position, the present writ petition is not maintainable at all as the remedy which was available to the present petitioners-defendants had already been exhausted by them.

(3.) THERE is also no dispute on the point that against the rejection of the application under section 5 of the Limitation Act by the learned District Judge, Bikaner through impugned order Annex. 5 dated 16. 10. 2003, the present petitioners-defendants preferred second appeal before this Court being S. B. Civil Second Appeal No. 282/2003 and when that second appeal was being heard, it was submitted by the plaintiff-respondent No. 1 that since the first appeal of the petitioners-defendants was dismissed as being time barred through impugned order Annex. 5 dated 16. 10. 2003, that order cannot partake the character of a decree and therefore, a preliminary objection was raised on behalf of the plaintiff- respondent No. 1 that the said second appeal was not maintainable. It was contended that the impugned order does not satisfy the requirement of Section 2 (2) of the CPC as the order has not conferred any statutory status affecting the right of the parties and therefore, it cannot be called a decree. Attention of the Court was invited to sub-rule 3a of Rule 41 CPC which erects a positive bar to pass any order in appeal filed without first deciding the question of limitation. That objection was prevailed on the ground that the order dismissing an appeal as time barred does not amount to decree and when it does not amount to decree, the second appeal does not lie. For that, reliance can be placed on two decisions in Bal Krishan vs. Tulsa Bai (1), and Mamuda Khateen vs. Beniyan Bibi This Court also took the similar view in Chhelaram vs. Manak (3), and observed that the order which only decides the point of limitation does not amount to decree.