Gujarat High Court
State Of Gujarat vs Narendra Narbheram Thakar Since ... on 1 April, 2024
NEUTRAL CITATION
C/SA/151/2024 ORDER DATED: 01/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 151 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/SECOND APPEAL NO. 151 of 2024
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STATE OF GUJARAT
Versus
NARENDRA NARBHERAM THAKAR SINCE EXPIRED THROUGH HIS
LEGAL HEIRS & ORS.
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Appearance:
MR. ADITYA JADEJA, AGP for the Appellant(s) No. 1
for the Respondent(s) No. 1,1.1,1.2,1.3,1.4,2,3,4
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 01/04/2024
ORAL ORDER
1. The present second appeal is filed by being aggrieved
and dissatisfied with the order dated 22.12.2023 passed by
learned 5
th
Additional District Judge, Junagadh, in Civil
Miscellaneous Application No.159 of 2023, whereby, the
application for condonation of delay is rejected in filing of the
Regular Civil Appeal against the judgment and decree dated
08.08.2019 passed in Regular Civil Suit No.38 of 2014 by the
learned Principal Senior Civil Judge, Junagadh.
2. Heard Mr. Aditya Jadeja, learned Assistant Government
Pleader for the appellant.
3. Considering the provisions of Section 100 of the Code of
Civil Procedure (C.P.C.), 1908, which reads as under:
"100. Second appeal:
(1) Save as otherwise expressly provided in the body of
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C/SA/151/2024 ORDER DATED: 01/04/2024
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this Code or by any other law for the time being in force,
an appeal shall lie to the High Court from every decree
passed in appeal by any Court subordinate to the High
Court, if the High Court is satisfied that the case involves a
substantial question of law.
(2) An appeal may lie under this section from an appellate
decree passed ex parte .
(3) In an appeal under this section, the memorandum of
appeal shall precisely state the substantial question of law
involved in the appeal.
(4) Where the High Court is satisfied that a substantial
question of law is involved in any case, it shall formulate
that question.
(5) The appeal shall be heard on the question so
formulated and the respondent shall, at the hearing of the
appeal, be allowed to argue that the case does not involve
such question:
Provided that nothing in this sub-section shall be
deemed to take away or abridge the power of the Court to
hear, for reasons to be recorded, the appeal on any other
substantial question of law, not formulated by it, if it is
satisfied that the case involves such question."
4. Also, it is apt to consider the provisions of Section 5 of
the Limitation Act, 1963, which reads as under:
"5. Extension of prescribed period in certain cases.--
Any appeal or any application, other than an application
under any of the provisions of Order XXI of the Code of
Civil Procedure, 1908 (5 of 1908), may be admitted after the
prescribed period, if the appellant or the applicant satisfies
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the court that he had sufficient cause for not preferring the
appeal or making the application within such period.
Explanation.--The fact that the appellant or the applicant
was misled by any order, practice or judgment of the High
Court in ascertaining or computing the prescribed period may
be sufficient cause within the meaning of this section."
5. The application for condonation of delay in preferring
appeal is required to be filed in view of the provisions of
Order XLI Rule 3(A), which reads as under:
"3A. Application for condonation of delay.--
(1) When an appeal is presented after the expiry of the
period of limitation specified therefore, it shall be
accompanied by an application supported by affidavit setting
forth the facts on which the appellant relies to satisfy the
Court that he had sufficient cause for not preferring the
appeal within such period.
(2) If the Court sees no reason to reject the application
without the issue of a notice to the respondent, notice hereof
shall be issued to the respondent and the matter shall be
finally decided by the Court before it proceeds to deal with
the appeal under rule 11 or rule 13, as the case may be.
(3) Where an application has been made under sub-rule (1),
the Court shall not make an order for the stay of execution
of the decree against which the appeal is proposed to be
filed so long as the Court does not, after hearing under rule
11, decide to hear the appeal."
6. Considering the fact that the impugned order is passed
for rejecting the application preferred under Section 5 of the
Limitation Act, therefore, it cannot be merged into the order
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dated 22.12.2023 which is passed by the learned 5
th
Additional District Judge, Junagadh, which cannot be
considered as decree passed by the lower Appellate Court and
it cannot be considered for final adjudication of the appeal on
merits.
7. Therefore, this Court is of the opinion that the second
appeal under Section 100 of the C.P.C. is not maintainable.
Otherwise, also looking to the grievance made in the present
second appeal, no substantial questions of law have arisen for
the consideration of this Court; however, the Court is of the
opinion about the maintainability of the second appeal
against the order passed by the lower Appellate Court by
exercising powers under the provisions of Section 5 of the
Limitation Act read with Order XLI Rule 3(A) of the C.P.C.,
and hence, the second appeal is required to be dismissed.
8. Accordingly, the present appeal is dismissed as not
maintainable in the eye of law.
9. In view of the dismissal of the main matter, connected
civil application does not survive and the same stands
disposed of accordingly.
(SANDEEP N. BHATT,J)
SLOCK BAROT
