Ramadhar Sharma vs The State Of Madhya Pradesh
2021 Latest Caselaw 2232 MP

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         THE HIGH COURT OF MADHYA PRADESH
                    MCC No.382/2021
          Ramadhar Sharma vs. State of M.P. & Ors.

                Heard through Video Conferencing

Gwalior, Dated : 10.06.2021

      Shri Prashant Sharma, Counsel for the applicant.

      Shri Deepak Khot, Government Advocate for the State.

      This MCC has been filed for restoration of Second Appeal

No.287/2013 which was dismissed as a consequence of dismissal of

application for condonation of delay for want of prosecution, on

5.11.2014

.

The necessary facts are that the appellant had suffered a decree

on 18.4.2006 in Civil Appeal No.27-A/2005 by which the judgment

and decree passed by Civil Judge Class-I, Dabra, District Gwalior on

29.1.2005 was affirmed. Thereafter the appellant filed an appeal with

a delay of seven years along with an application for condonation of

delay. On 5.1.2014, the Second Appeal No.287/2013 was listed for

consideration of I.A.No.3351/2013. Since none appeared for the

appellant despite call in the second round, therefore, the application

was dismissed for want of prosecution after taking note of the fact

that the appeal has been filed with the delay of more than seven years

and as a consequence, the appeal was also dismissed.

In the application for restoration of the appeal, the only reason

which has been assigned by the applicant is as under:

3. That, the second appeal was listed on 5-11- 2014 for hearing on I.A. No. 3351/2013 i.e., the

THE HIGH COURT OF MADHYA PRADESH MCC No.382/2021 Ramadhar Sharma vs. State of M.P. & Ors.

application filed under Section 5 of the Limitation Act, 1963. The appellant did not approach the counsel's office and since there were no instructions from the appellant therefore the counsel did not appear before this Hon'ble Court.

Thus it is clear that even according to the applicant, the

applicant himself was responsible for not giving any instructions to

his counsel and accordingly, the counsel for the appellant did not

appear when the case was called for consideration of application for

condonation of delay.

One thing is clear that after dismissing the application filed

under Section 5 of the Limitation Act, the Court has also dismissed

the appeal.

The Supreme Court in the case of Shyam Sundar Sarma vs.

Pannalal Jaiswal and others reported in (2005) 1 SCC 436 has held

as under:

8. The first question to be considered is whether an appeal accompanied by an application for condoning the delay in filing the appeal is an appeal in the eye of the law, when the application for condoning the delay in filing the appeal is dismissed and consequently the appeal is dismissed as being time-barred by limitation, in view of Section 3 of the Limitation Act. There was conflict of views on this question before the High Courts. But the Privy Council in Nagendra Nath Dey v. Suresh Chandra Dey held: (AIR p. 167) "There is no definition of appeal in the Civil Procedure Code, but Their Lordships have no doubt that any application by a party to an appellate court, asking it to set aside or revise a decision of a subordinate court, is an appeal within

THE HIGH COURT OF MADHYA PRADESH MCC No.382/2021 Ramadhar Sharma vs. State of M.P. & Ors.

the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or incompetent."

8.1. These observations were referred to with approval by this Court in Raja Kulkarni v. State of Bombay.

9. The specific question involved came to be considered by this Court in Mela Ram and Sons v. CIT. This Court held that an appeal presented out of time is an appeal and an order dismissing it as time-barred is one passed in an appeal. This Court referred to and followed the view taken by the Privy Council and by this Court in the two respective decisions above-referred to. This Court quoted with approval the observations of Chagla, C.J. In K.K. Porbunderwalla v. CIT (ITR p. 66) to the following effect: (SCR p. 176) "[A]lthough the Appellate Assistant Commissioner did not hear the appeal on merits and held that the appeal was barred by limitation his order was under Section 31 and the effect of that order was to confirm the assessment which had been made by the Income Tax Officer." 9.1. In Sheodan Singh v. Daryao Kunwar rendered by four learned Judges of this Court, one of the questions that arose was whether the dismissal of an appeal from a decree on the ground that the appeal was barred by limitation was a decision in the appeal. This Court held: (SCR pp. 308 H-309 B) "We are therefore of opinion that where a decision is given on the merits by the trial court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial court on the merits itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal."

9.2. In Board of Revenue v. Raj Bros. Agencies this Court approved the decision of the Madras High Court which had applied the principle stated in Mela Ram and Sons.

THE HIGH COURT OF MADHYA PRADESH MCC No.382/2021 Ramadhar Sharma vs. State of M.P. & Ors.

10. The question was considered in extenso by a Full Bench of the Kerala High Court in Thambi v. Mathew. 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.

11. Learned counsel for the appellant relied on the Full Bench decision of the Calcutta High Court in Mamuda Khateen v. Beniyan Bibi to contend that an order rejecting a time-barred memorandum of appeal consequent upon refusal to condone the delay in filing that appeal was neither a decree nor an appealable order. On going through the said decision it is seen that though the Full Bench referred to the divergent views on that question in the Calcutta High Court prior to the rendering of the decision of this Court in Mela Ram and Sons it had not considered the decisions of this Court in Raja Kulkarni and in Mela Ram and Sons in coming to that conclusion. In fact it is seen that there was no discussion on that aspect as such, though there was a reference to the conflict of views in the decisions earlier rendered by the Calcutta High Court. Since the ratio of that decision runs counter to the principle laid down by this Court in Mela Ram and Sons obviously the same could not be accepted as laying down a correct law.

THE HIGH COURT OF MADHYA PRADESH MCC No.382/2021 Ramadhar Sharma vs. State of M.P. & Ors.

12. Learned counsel placed reliance on the decision in Ratansingh v. Vijaysingh rendered by two learned Judges of this Court and pointed out that it was held therein that dismissal of an application for condonation of delay would not amount to a decree and, therefore, dismissal of an appeal as time-barred was also not a decree. That decision was rendered in the context of Article 136 of the Limitation Act, 1963 and in the light of the departure made from the previous position obtaining under Article 182 of the Limitation Act, 1908. But we must point out with respect that the decisions of this Court in Mela Ram and Sons and Sheodan Singh were not brought to the notice of Their Lordships. The principle laid down by a three-Judge Bench of this Court in Mela Ram and Sons and that stated in Sheodan Singh was, thus, not noticed and the view expressed by the two- Judge Bench, cannot be accepted as laying down the correct law on the question. Of course, Their Lordships have stated that they were aware that some decisions of the High Courts have taken the view that even rejecting an appeal on the ground that it was presented out of time is a decree within the definition of a decree obtaining in the Code. Thereafter, noticing the decision of the Calcutta High Court above-referred to, Their Lordships in conclusion apparently agree with the decision of the Calcutta High Court. Though the decision of the Privy Council in Nagendra Nath Dey v. Suresh Chandra Dey was referred to, it was not applied on the ground that it was based on Article 182 of the Limitation Act, 1908, and there was a departure in the legal position in view of Article 136 of the Limitation Act, 1963. But with respect, we must point out that the decision really conflicts with the ratio of the decisions in Mela Ram and Sons and Sheodan Singh and another decision of this Court rendered by two learned Judges in Rani Choudhury v. Lt.-Col. Suraj Jit Choudhury. In Essar Constructions v. N.P. Rama Krishna Reddy brought to our notice, two other learned Judges of this Court left open the question. Hence, reliance placed on that decision is of no avail to the

THE HIGH COURT OF MADHYA PRADESH MCC No.382/2021 Ramadhar Sharma vs. State of M.P. & Ors.

appellant.

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15. We are not impressed by the argument of learned counsel for the appellant that the decision in Rani Choudhury case requires reconsideration. On going through the said decision in the light of the objects and reasons for the introduction of the Explanation to Order 9 Rule 13 and the concept of an appeal as indicated by the Privy Council and this Court in the decisions already cited, the argument that an appeal which is dismissed for default or as barred by limitation because of the dismissal of the application for condoning the delay in filing the same, should be treated on a par with the non-filing of an appeal or the withdrawal of an appeal, cannot be accepted. The argument that since there is no merger of the decree of the trial court in that of the appellate court in a case of this nature and consequently the Explanation should not be applied, cannot also be accepted in the context of what this Court has earlier stated and what we have noticed above.

16. Thus, in the case on hand we find that the trial court, the appellate court and the High Court have rightly held that petition under Order 9 Rule 13 of the Code would not lie in view of the filing of an appeal against the decree by the appellant and the dismissal of the appeal though for default, since a dismissal for default or on the ground of it being barred by limitation cannot be equated with a withdrawal of the appeal. Consequently, the decision of the High Court is affirmed and this appeal is dismissed. In the circumstances of the case we make no order as to costs.

Once an appeal is dismissed as barred by time, then it would

amount to decree.

Under these circumstances, the application for restoration of

second appeal is not maintainable.

THE HIGH COURT OF MADHYA PRADESH MCC No.382/2021 Ramadhar Sharma vs. State of M.P. & Ors.

Accordingly, the application fails and is hereby dismissed.

                                                      (G.S. Ahluwalia)
(alok)                                                    Judge




 ALOK KUMAR
 2021.06.11 10:32:44 +05'30'