Jammu & Kashmir High Court - Srinagar Bench

Khaliq Lone vs A Suit For Declaration Filed By The on 3 February, 2021

Item No. 104
Admission
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
(THROUGH VIRTUAL MODE)

C M No.546/2021
in CM(M) No.24/2021
CM No.547/2021

Khaliq Lone ...Petitioner(s)

Through: Mr. Showkat Ali Khan, Advocate.

Vs.

Mst. Azi & others
Through: None.

CORAM: Hon'ble Mr Justice Sanjeev Kumar, Judge.

(ORDER)(ORAL)
03.02.2021
CM No.546/2021
Instant application seeking leave of this Court for filing the writ

petition without annexing/depositing the requisite court fee, in view of

the grounds urged therein, is allowed. The petitioner shall deposit the

requisite court fee/affidavit/stamps with the Registry of this Court within

a period of one week from the date Registry starts functioning normally.

Application is disposed of.

CM(M) No.24/2021
CM No.547/2021
1. A suit for declaration filed by the respondent No.1 against the

petitioner and proforma respondents came to be decreed by the Court of

learned Munsiff, Awantipora, vide its judgment and decree dated

12.06.2017. Feeling aggrieved, the petitioner preferred an appeal before

MOHAMMAD ALTAF BHAT Principal District Judge, Pulwama, along with an application for 2021.02.05 14:06 I attest to the accuracy and integrity of this document

condonation of delay. Principal District Judge, Pulwama (appellate

court) did not agree with the explanation tendered by the petitioner for

delay in filing the appeal and, accordingly, dismissed the application as

also the appeal along with all connected applications vide its judgment

and decree dated 2nd of December, 2020, which is impugned in this

petition.

2. The petitioner has called in question the impugned judgment and

decree of the appellate court by invoking the power of superintendence

of this Court under Article 227 of the Constitution of India.

3. Learned counsel for the appellant when confronted that impugned

judgment and decree of the court below was appealable under Section

100 of the Code of Civil Procedure and, therefore, there was no occasion

to invoke the power of superintendence of this court, submits that by

virtue of impugned order the appellate court has simply dismissed his

application for condonation of delay and such order of the appellate

court is neither appealable nor revisable under the Code of Civil

Procedure. He, therefore, argues that in the absence of any statutory

remedy available against the impugned order, the petitioner was left with

no option but to invoke the power of superintendence of this Court

vested in it by virtue of Article 227 of the Constitution of India.

4. Having heard learned counsel for the petitioner and perused the

record, I am of the considered view that the order impugned passed by

the appellate court is a decree and appealable under Section 100 of the

Code of Civil Procedure.

MOHAMMAD ALTAF BHAT 2021.02.05 14:06 I attest to the accuracy and integrity of this document

5. With a view to appreciate the contention of the learned counsel for

the petitioner, it is necessary to set out the provisions of Section 3 and 5

of the Limitation Act:

3. Dismissal of suits, etc., instituted, etc. after period of limitation. - Subject to the provisions contained in sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefor by the First Schedule shall be dismissed, although limitation has not been set up as a defence.

Explanation: -- A suit is instituted, in ordinary cases, when the plaint is presented to the proper officer; in the case of a pauper, when his application for leave to sue as a pauper is made; and, in the case of a claim against a company which is being wound up by the Court, when the claimant first sends in his claim to the official liquidator.

5. Extension of period in certain cases. -

An appeal or an application for a review of a judgment or for leave to appeal or an application to set aside an order of dismissal of a suit for plaintiff's default or an application to set aside a decree passed ex-parte in an original suit or appeal or an application to bring the heirs of a deceased party on the record or an application to set aside an order of abatement of a suit or appeal or any other application to which this section may be made applicable by or under an enactment for the time being in force may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies 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 applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of this section

6. From reading of Section 3, it is clear that every suit, appeal or

application instituted after the period of limitation prescribed, is to be

dismissed. Section 5, however, empowers the Court to entertain an

appeal and application beyond the period prescribed under law subject to

the condition that the Court is satisfied that there is sufficient cause for MOHAMMAD ALTAF BHAT 2021.02.05 14:06 I attest to the accuracy and integrity of this document

not preferring an appeal or application within time. Section 5 is, thus, an

exception to the general rule contained in Section 3. The moment an

application moved under Section 5 is rejected, Section 3 comes into

operation as a necessary consequence.

7. That being the position, when an application seeking condonation

of delay in filing the appeal preferred by the petitioner under Section 5

of the Limitation Act was rejected by the appellate court, as a necessary

consequence and by operation of Section 3, the appeal filed by the

petitioner became liable to be dismissed. This is exactly what has been

done by the appellate court. For facility of reference, it is appropriate to

reproduce the operative portion of the impugned order, which reads thus:

―I have gone through the ratio laid down in these authorities cited by the counsel for the parties. After going through the application, the objections and after hearing the ld. Counsel for the parties and also considering the ratio laid down by the authorities, it is evident that the appellant has failed to make out a case for condonation of delay. The appeal being time barred, no sufficient cause exists for condonation of delay. The application for condonation of delay is, therefore, dismissed. The result is that the appeal along with all connected applications shall stand also dismissed.

8. It is thus not correct to contend that by virtue of impugned order,

it is only the application for condonation of delay that has been

dismissed by the appellate court whereas the fact remains that as a result

of dismissal of application for condonation of delay, the appeal of the

petitioner too stood dismissed. The order and judgment dated 2 nd of

December, 2020 is, therefore, a decree and the remedy available to the

MOHAMMAD ALTAF BHAT 2021.02.05 14:06 I attest to the accuracy and integrity of this document

petitioner against such decree is Civil Second Appeal as envisaged under

Section 100 of the Code of Civil Procedure.

9. The Supreme Court in the case of M/S Essar Constructions vs.

N.P. Rama Krishna Reddy, (2000) 6 SCC 94 and Union of India and

others vs. Manager, M/S Jain & Associates, (2001) 3 SCC 277, has

clarified the position of law and has held that consequence of dismissal

of condonation application is upholding of the judgment impugned and

rejection of the belated appeal.

10. A bench of this Court in the case of Union of India vs. Nek Ram

Sharma, 2004(1) JKJ 280, considered this issue in the light of supra

judgments of the Supreme Court and held that ―an order rejecting the

application under Section 5 of the Limitation Act or for that matter

condonation under any other law merges with the order that may

ultimately be passed in the application or the appeal. The consequence of

dismissal of application of condonation of application is rejection of an

application or the appeal, as the case may be. Therefore, the outcome of

such rejection is upholding an order subject matter of appeal.‖

11. In view of the settled legal position, I have no manner of doubt

that the order impugned is appealable under Section 100 of the Code of

Civil Procedure and that being so, there is hardly any case made out by

the petitioner for exercise of the power of superintendence vested in this

Court by virtue of Article 227 of the Constitution of India. Needless to

say that the power of superintendence vested in this Court by Article 227

is to be exercised sparingly and in the rarest of rare cases and there is no MOHAMMAD ALTAF BHAT 2021.02.05 14:06 I attest to the accuracy and integrity of this document

justification to the exercise of such power when a statutory remedy is

available in law.

12. For the foregoing reason, this petition being not maintainable is,

accordingly, dismissed along with connected application(s). It shall,

however, remain open for the petitioner to work out his remedy as may

be available to him in law, if so advised.

(Sanjeev Kumar) Judge Srinagar 03.02.201 ―Bhat Altaf, PS‖

Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No

MOHAMMAD ALTAF BHAT 2021.02.05 14:06 I attest to the accuracy and integrity of this document