The Patna High Court, while allowing a petition filed by the petitioner under Article 227 of the Constitution of India against the order dated 06.09.2018 passed by the learned District Judge by which he had admitted the appeal, held that if the appeal has been filed beyond the period of limitation, mandatorily the notice is required to be issued to the respondent; issuance of notice to the respondent is for giving an opportunity to the respondent.
Brief Facts:
The petitioner along with Respondents nos. 4 to 10 filed a title Suit. The matter proceeded and the issues were settled, evidence recorded and after hearing the parties, the learned Sub-Judge decreed the suit. Being aggrieved with the aforesaid judgment, the defendants/respondents filed an appeal in the court of the learned District Judge which was dismissed. Thereafter, the defendants/respondents filed a fresh appeal against the judgment along with a separate application for condonation of delay in filing the appeal. The learned District Judge admitted the appeal. This order has been challenged in the present petition.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner submitted that the impugned order dated 06.09.2018 is not sustainable as it is an illegal order passed without consideration of the provisions of law. As the law is well settled that if the appeal is barred by law of limitation, then the court is duty bound to hear on the point of limitation first, that too, only after giving an opportunity of hearing to the other side, in the present case the petitioners, then only the court can proceed with the appeal on merits.
Contentions of the Respondent:
The Learned Counsel for the Respondent submitted that the impugned order is legal and there is no need to interfere with the same. He argued that there is no specific bar that restrains the appellate court from hearing and deciding the appeal along with the application for condonation of delay. He further contended that the law does not bar the filing of a fresh suit appeal if the previously filed appeal was dismissed for default.
Observations of the Court:
The Court noted that hearing of appeal under Section 96 of the Code would be subject to such conditions of limitations as prescribed which includes conditions under Order 41 Rule 3A of the Code. If an appeal is filed after the expiry of the period of limitation specified therefor, the same shall be accompanied by an application supported by an affidavit stating the facts on which the appellant relies to satisfy the court that he had sufficient cause for not preferring the appeal within such period.
The Court observed that if the appeal has been filed beyond the period of limitation, mandatorily the notice is required to be issued to the respondent; issuance of notice to the respondent is for giving an opportunity to the respondent. Issuance of notice only would not suffice but an opportunity for an effective hearing is to be given to the respondent otherwise the provision would be meaningless. The Court said that the learned first appellate court should not have proceeded in the matter for hearing the appeal on merits keeping the issue of limitation pending till the final judgment of the appeal.
The decision of the Court:
The Patna High Court, allowing the petition, held that the impugned order passed by the learned District Judge is not sustainable and, hence, it is set aside.
Case Title: Basil Michael Quadros v The State of Bihar & Ors.
Coram: Hon’ble Justice Arun Kumar Jha
Case no.: CIVIL MISCELLANEOUS JURISDICTION No.596 of 2022
Advocate for the Petitioner: Mr. Ranjan Kumar Dubey
Advocate for the Respondents: Mr. Sanjay Prasad
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