Jharkhand High Court
Ratneshwar Mishra vs Manish Kumar & Others on 27 March, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No.130 of 2020
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Ratneshwar Mishra .... .... .... Appellant
Versus
Manish Kumar & Others .... .... .... Respondents
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CORAM : HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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For the Appellant : Mr. Samir Kr. Lall, Advocate
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Order No.04 Dated- 27/03/2023
I.A. No.2979 of 2020
Heard the learned counsel for the appellant.
2. Learned counsel for the appellant submits that this interlocutory
application has been filed with a prayer to condone the delay of 152 days
in filing the instant appeal. It is next submitted by the learned counsel for
the appellant that earlier the appellant filed M.A. No.391 of 2019 and the
same was dismissed as withdrawn in terms of the order dated 08.11.2019
by a co-ordinate Bench of this Court. It is further submitted that the
appellant again filed C.M.P. No.859 of 2019, for modification of the
nonspeaking order by which M.A. No.391 of 2019, was ordered to be
dismissed as withdrawn, as the counsel for the appellant received
instructions that the appellant must have a reasoned order. The following
order was passed by a co-ordinate Bench of this Court in C.M.P. No.859 of
2019 dated 06.03.2020:-
"Heard, learned counsel for the petitioner.
Earlier the appellant/petitioner has preferred Miscellaneous Appeal No.391
of 2019 against the order dated 18.07.2019 passed in Succession Certificate Case
No.7 of 2010 passed by learned District Judge-I, East Singhbhum, Jamshedpur.
Learned counsel for the appellant has submitted that M.A. No. 391 of 2019
has been withdrawn after some argument, but subsequently instruction received
by the learned counsel for the appellant to have a reasoned order, as such, he has
filed the modification application.
Be that as it may, this Court cannot allow modification of the order dated
08.11.2019 passed in M.A. No.391 of 2019. However, if so advised the appellant
may file a separate Miscellaneous Appeal with petition for condonation of delay
and that shall be considered on its own merits.
Accordingly, the instant petition is disposed of without any modification."
3. Learned counsel for the appellant relies upon the judgment of the
Hon'ble Delhi High Court purported to have been passed in the case of
Balwant Singh & Others vs. Indraprastha Builders Pvt., the case number
of which has not been mentioned in the purported copy of the judgment
passed by the Delhi High Court placed by the learned counsel for the
appellant in this case and the learned counsel for the appellant submits
that when the question before the Delhi High Court was that can a
plaintiff having withdrawn his suit under Order XXIII Rule 1 of the Code
of Civil Procedure, seek revival of the suit through application under
Section 151 of the Code, the Delhi High Court answered the same in
affirmative.
4. Learned counsel for the appellant next relies upon the judgment of
the Hon'ble Supreme Court of India in the case of M/S Ramnath Exports
Pvt. Ltd. vs. Vinita Mehta & Another reported in 2022 LiveLaw (SC) 564
and submits that therein the Hon'ble Supreme Court of India reiterated
the settled principle of law that an appeal is a continuation of the
proceeding of the original court. It is next submitted that the appellant has
very good case and there is every chance of success in this case. Hence, the
delay of 152 days in filing this appeal be condoned. It is next submitted
that though in para-8 it has been mentioned that the appeal was filed after
a delay of 68 days but in fact there is a delay of 152 days as has rightly
been pointed out by the stamp reporter. Hence, it is submitted that the
delay of 152 days in filing the instant appeal be condoned.
5. Having heard the submission of the learned counsel for the
appellant and perusal of the record, this Court is of the considered view
that reviving of an appeal and filing a fresh appeal for the 2nd time when
the appeal against the same impugned order has already been withdrawn,
are two different things. In this case, the appellant had already filed an
appeal which was later on withdrawn by the appellant without assigning
any reason as to why the appellant is withdrawing the same and said
M.A. No.391 of 2019 was dismissed as withdrawn. As per the appellant,
the appellant filed a C.M.P. to modify the said dismissal order passed by a
co-ordinate Bench passed in M.A. No.391 of 2019 vide C.M.P. No.851 of
2019 and the said C.M.P. was disposed of on 06.03.2020 but again the
appeal from the same impugned judgment and decree for which M.A.
No.391 of 2019 has again been filed on 16.03.2020. There is absolutely no
reason assigned by the appellant as to for what reason the delay from
06.03.2020 to 16.03.2020 has occurred, if at all, the Appeal filed for the 2nd
time from the self-same impugned judgment and decree is maintainable.
6. Considering the aforesaid facts, this Court has no hesitation in
holding that there is absolutely no sufficient cause for the inordinate delay
of 152 days in filing this appeal.
7. Hence, in the absence of any sufficient cause, there is no justifiable
reason to condone the delay of 152 days in filing this appeal.
8. Accordingly, this application under Section 5 of the Limitation Act,
1963, being without any merit, is dismissed.
(Anil Kumar Choudhary, J.)
M.A. No.130 of 2020
In view of the order passed today in I.A. No.2979 of 2020, this
appeal is dismissed being barred by limitation.
Let a copy of this judgment be sent to the court concerned
forthwith.
Animesh/ (Anil Kumar Choudhary, J.)
