Allahabad High Court
Jokhan vs Murtuja And 9 Others on 23 March, 2023
Bench: Syed Aftab Rizvi
HIGH COURT OF JUDICATURE AT ALLAHABAD
Judgment reserved on 16.02.2023
Judgment delivered on 23.3.2023
Court No. - 89
Civil Misc. Review Petition No. 466 of 2021
In
Case :- SECOND APPEAL No. - 584 of 2021
Appellant :- Jokhan
Respondent :- Murtuja And 9 Others
Counsel for Appellant :- Kashi Nath Shukla,Sneh Ranjan Shukla
Counsel for Respondent :- Santosh Kumar Rai,Surendra Kumar Chaubey
Hon'ble Syed Aftab Husain Rizvi,J.
Heard learned counsel for the parties.
This Civil Misc. Review Petition has been filed for review of judgment and order dated 26.11.2021 passed in Second Appeal No. 584 of 2021 Jokhan Vs. Murtuja and 9 others.
Vide order dated 26.11.2021 Second Appeal No. 584 of 2021 was dismissed on the ground that the impugned order does not come under the purview of decree and it being a formal order, the second appeal will not be maintainable against the impugned order. The second appeal was filed against the order of the Additional District Judge, Court No. 4, Mau in Misc. Case No. 103 of 2018 (Jokhan and others Vs. Murtaza and others) rejecting an application to condone the delay in preferring an appeal from the judgment and decree of the Additional Civil Judge (Jr. Div.), Court No. 8, Azamgarh dated 24.1.1998 passed in Original Suit No. 540 of 1986.
learned counsel for the petitioner contended that rejection of an application for condonation of delay in filing appeal under section 96 C.P.C. is a decision in the first appeal. It will amount to decree, hence, the second appeal against the same would be maintainable. Learned counsel placed reliance on the following citations:
1. Shyam Sundar Sarma Vs. Panna Lal Jaiswal and others (2005) 1 SCC page 436.
2. Rajendra Pal Singh Vs. A.D.J. Court No. S 7, Ghaziabad and another Matters Under Article 227 No. 7365 of 2015 Judgment and order dated 16.12.2015 Alld. High Court.
Learned counsel also relied on the division bench judgment of this Court in Mahendra Kumar Gond Vs. District Inspector of School, Azamgarh and others 2016 (5) All WC 5025.
Learned counsel for the respondents submitted that there is no error in the impugned judgment and order, hence, review application is liable to be rejected.
Brief facts are that an original suit for cancellation of sale deed and injunction was filed before the trial court. In the original suit a counter claim was also filed seeking relief of possession and injunction. Learned trial court vide judgment and decree dated 24.1.1998 dismissed the original suit as well as the counter claim. This judgment and decree was challenged by the plaintiff-respondents in Civil Appeal No. 64 of 1998 which was later on transferred to District Mau and numbered as Civil Appeal No. 20 of 2014 and is still pending. The appellants-defendants preferred an appeal belatedly under section 96 C.P.C. against dismissal of the counter claim before the District Judge, Mau and to condone the delay also moved an application U/s 5 of Limitation Act on 4.2.2018. The matter was assigned to the Additional District Judge, Court No. 4, Mau and its number is 103 of 2018. The application for condonation of delay was rejected vide order dated 24.1.1998. The petitioner filed a second appeal no. 584 of 2021 against the impugned order dated 4.2.2018. The second appeal has been dismissed vide order dated 26.11.2021 on the ground that the impugned order does not come under the purview of decree, hence, second appeal will not be maintainable.
In the case of Shyam Sunder Sarma Vs. Panna Lal Jaiswal and others (supra) the Apex Court has held that an appeal when dismissed on refusal to condone the delay is nevertheless a decision in the appeal. This court also in the case of Rajendra Pal Singh Vs. A.D.J. Court No. S 7, Ghaziabad (Supra) has held 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 what could be subject to the second appeal. An appeal registered under Rule 9 of 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 delay is in substance and effect the confirmation of the decree appealed against. Thus, 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.
In the light of the law laid down by Apex Court in the case of Shyam Sundar Sarma Vs. Panna Lal Jaiswal and others (Supra) the order rejecting an application to condone the delay in filing appeal will amount to decree, so the impugned order dated 26.11.2021 is liable to be reviewed.
A division bench of this court in Mahendra Kumar Gond Vs. District Inspector of School, Azamgarh (Supra) has also held that review application filed on the ground that the judgment rendered without noticing the relevant law as already declared is sufficient for review of the judgment.
In view of the above the review application is allowed and the impugned order dated 26.11.2021 passed in Second Appeal No. 584 of 2021 is hereby recalled. The second appeal no. 584 of 2021 is restored to its original number and be listed before appropriate bench for hearing.
Order Date:- 23.3.2023
Masarrat
