Allahabad High Court
Rajendrapal Singh vs A.D.J., Court No.S 7, Ghaziabad ... on 16 December, 2015
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 58
Case :- MATTERS UNDER ARTICLE 227 No. - 7365 of 2015
Petitioner :- Rajendrapal Singh
Respondent :- A.D.J., Court No.S 7, Ghaziabad And Another
Counsel for Petitioner :- Awadhesh Kumar Singh,Sachichida Nand Singh
Hon'ble Suneet Kumar,J.
Heard learned counsel for the parties.
The plaintiff/applicant instituted a suit for permanent injunction against the defendant/second respondent in respect of the suit property described in the plaint. The suit was dismissed, aggrieved the applicant preferred Civil Appeal along the the delay condonation application under Section 5 of the Limitation Act. The respondents filed objections to the delay condonation application. The appellate Court/Additional District Judge rejected the application vide order dated 9 October 2015. The applicant is assailing the aforementioned order in a petition being under Article 227 of the Constitution.
An objection has been raised by the learned counsel appearing for the respondents that since the application for condonation of delay has been rejected consequently, the appeal would stand dismissed, therefore, the remedy available to the applicant is to approach the second Appellate Court under the Code.
In Shyam Sunder Sharma vs. Pannalal Jaiswal and others1 a three Judge Bench held while considering the question whether an appeal accompanied by an application for condoning the delay in filing the appeal is an appeal in the eyes of law, when the application for condoning the delay and consequently, the appeal is dismissed as being barred by limitation, in view of Section 3 of the Limitation Act. Relying upon several authorities including decision rendered by the Privy Council in Nagendra Nath Dey vs. Suresh Chandra Dey2 wherein it was held as follows:
"There is no definition of appeal in the Civil Procedure Code, but their Lordship have no doubt that any application by a party to an appellate Court, asking it to set aside or revise a decision of a subordinate court, is an appeal within the ordinary acceptation of the term and that it is no less an appeal because it is irregular or incompetent."
The observations was followed in subsequent decisions of the Supreme Court and finally the specific question came up for consideration in M/s Mela Ram and Sons vs. The Commissioner of Income Tax3 wherein it was held that an appeal presented out of time is an appeal and an order dismissing it being time barred is one passed in an appeal. The Court quoted with approval, the observations of Chagla C.J. In K.K. Porbunderwalla vs. Commissioner of Income Tax4 to the following effect:
"......although the Appellate Assistant Commissioner did not hear the appeal on merits and held that the appeal was barred by limitation his order was under Section 31 and the effect of that order was to confirm the assessment which had been made by the Income-tax Officer."
In Sheodan Singh vs. Daryao Kunwar5, it was again reiterated that dismissal of an appeal from a decree on the ground that the appeal was barred by limitation was decision in an appeal. The Court held that where a decision is given on the merits by the trail court and the matter is taken in appeal which is dismissed on some preliminary ground like limitation or default in printing, it must be held that such dismissal confirms the decision of the trial court on the merits, whatever may be the ground for dismissal of the appeal.
The law, therefore, on the subject is clear and unequivocal that an appeal presented beyond time was nevertheless an appeal in the eyes of law for all purposes and an order dismissing the appeal on whatever ground was a decree that could be subject to second appeal. Rule 3A of Order 41 introduced by Amendment Act 104 of 1976 to the Court, did not in any way affect the principle. An appeal registered under Rule 9 or Order 41 of the Code had to be disposed of according to law and a dismissal of an appeal for the reason of delay in its presentation, upon dismissal of the application for condonation of the delay, is in substance and effect the confirmation of the decree appealed against. Thus, the position that emerges on a survey of the pronouncements is that an appeal filed along with an application for condonation of delay when dismissed on the refusal to condone the delay is nevertheless a decision in the appeal.
Submission of the learned counsel for the applicant that the learned Appellate Court merely dismissed the Section 5 application but has nowhere stated that the appeal would also stand dismissed, therefore, the petition under Article 227 would be maintainable, against the order of such dismissal, in my opinion, in view of the authoritative pronouncements stated herein above, the argument is misconceived.
For the reasons stated herein above, the petition is dismissed being not maintainable.
However, dismissal of the petition shall not preclude the applicant from approaching the appropriate Court for redressal of his grievance.
No cost.
Order Date :- 16.12.2015
S.Prakash
