Jharkhand High Court
Ashok Kumar Tiwary vs Shiwli Gorai on 23 November, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 204 of 2022
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1. Ashok Kumar Tiwary
2. Krishna Chandra Tiwary @ Krishna Charan Tiwari
3. Anidhir Tiwary
4. Ashwani Kumar Tiwary .... .... .... Petitioners
Versus
1. Shiwli Gorai
2. Sundar Kumar Gorai
3. Rupesh Gorai
4. Smt. Sabita Gorai
5. Subhendu Gorai
6. Birendra Nath Gorai
7. Smt. Sandhya Gorain
8. Sanjeev Gorai
9. Safeli Gorai
10. Kalyan Gorai
11. Kartik Gorai
12. Poornima Gorai
13. Minor Debojit Gorai
14. Maya Gorai
15. Minor Subhojit Gorai
16. Minor Raina Gorai
17. Chandana Gorain
18. Minor Manga Gorain
19. Harimoti Tiwary
20. Madan Tiwary .... .... .... Opposite Parties
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
For the Petitioner : Mr. Naresh Prasad Thakur, Advocate
For the Opp. Parties :
Oral Order
03/ Dated :23.11.2022
Instant petition has been filed for quashing of order dated 22.02.2022
passed by learned Principal District Judge, Dhanbad in Civil Appeal No.156
of 2020 whereby and whereunder the Civil Appeal has been dismissed on the
ground of limitation.
2. The petitioner preferred appeal before the Principal District Judge
against the judgment by the Land Acquisition Officer, Dhanbad. The learned
Court below held the First Appeal to be barred by limitation and dismissed the
appeal.
3. Aggrieved by this said order of dismissal the instant civil
miscellaneous petition has been preferred under Article 227 of the
Constitution of India.
4. This Court is of the view that an appeal will lie against the said order
and not a civil miscellaneous petition. Limitation is always a mixed question
of fact and law, which cannot be entered into by Court exercising supervisory
jurisdiction under Article 227 of the Constitution of India. Further, the
dismissal of appeal on limitation is also a decree and second appeal shall be
maintainable against the order of dismissal. It has been held in Shyam Sundar
Sarma v. Pannalal Jaiswal; (2005) 1 SCC 436
10. The question was considered in extenso by a Full Bench of the Kerala
High Court in Thambi v. Mathew [(1987) 2 KLT 848 (FB)]. Therein, after
referring to the relevant decisions on the question it was held that an appeal
presented out of time was nevertheless an appeal in the eye of the law for all
purposes and an order dismissing the appeal was a decree that could be the
subject of a second appeal. It was also held that Rule 3-A of Order 41
introduced by Amendment Act 104 of 1976 to the Code, did not in any way
affect that principle. 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, after the dismissal of an application for
condoning the delay, is in substance and effect a confirmation of the decree
appealed against. Thus, the position that emerges on a survey of the
authorities is that an appeal filed along with an application for condoning the
delay in filing that appeal when dismissed on the refusal to condone the delay
is nevertheless a decision in the appeal.
Under the circumstance the instant petition is dismissed as not
maintainable.
(Gautam Kumar Choudhary, J.)
Anit
