Madhya Pradesh High Court
Narayan Singh vs Hadmat Singh on 3 March, 2025
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
NEUTRAL CITATION NO. 2025:MPHC-IND:5580
1 MP-7086-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 3rd OF MARCH, 2025
MISC. PETITION No. 7086 of 2024
NARAYAN SINGH
Versus
HADMAT SINGH AND OTHERS
Appearance:
Mr. Harish Joshi, counsel for the petitioner.
Mr. Dattatray Kale, counsel for the respondents No.1 & 2.
ORDER
Heard on IA No.1550 of 2025.
The present miscellaneous petition has been filed by the petitioner
under Article 227 of the Constitution of India challenging the order dated
09.11.2024 by which the application under Section 5 of Limitation Act,
1963 has been dismissed. Secondly, the regular appeal filed against the
decree of trial court has also been dismissed.
The petitioner has raised preliminary objection against the order of
dismissal of the application under Section 5 of Limitation Act and the
regular appeal filed would amount to a decision on merit and therefore
the remedy available to the petitioner is to file the regular second appeal
and not the petition under Article 227 of the Constitution of India.
Counsel for the petitioner has argued that this petition is
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maintainable.
Per contra, counsel for the respondents has argued and relied upon
the judgment passed by the Hon'ble Apex Court in the case of Shyam
Sunder Sarma vs. Pannalal Jaiswal and Others reported in 2005 Vol.-1
MPLJ Page 6 and the full bench judgment of this Court in the case of
Maniram and Others vs. Mst. Fuleshwar and Others reported in 1996 JLJ
328. Paragraphs 25 and 26 of the judgment is relevant which reads as
under:-
"25. The above aspect of the matter does not appear to
have been considered by the Division Bench in Ajitsingh's
case (supra) as also in the cases of Laxmibai, Balkrishan,
Rambharose Singh and Chhitu (supra). In view of the
pronouncement of the Supreme Court, it is clear that appeal,
even if dismissed on the point of limitation, would amount to
a decree in which the trial court's decree has merged and,
therefore, a second appeal is not barred. We respectfully are
unable to concur with the view taken in the cases of Ajitsingh,
Laxmi Bai and Balkrishan, Rambharose Singh and Chittu
(supra) as the said decisions do not appear to have laid down
the correct law".
26. The reference is, therefore, answered as below:-
"That a Second Appeal lies to the High Court even if
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the First Appeal is dismissed as barred by limitation after
rejection of the application for condonation of delay filed
either under Section 5 of the Limitation Act or under Order 41
Rule 3A of the Code of Civil Procedure."
In rebuttal, counsel for the petitioner has argued that the aforesaid
judgments would not apply to the facts of the present case. He further
referred to para 12 of the judgment of Shyam Sunder Sarma (supra) and
has stated that the issue in this regard is left open.
After hearing counsel for the parties and considering the
judgments passed by this Court in the case of Maniram and Others
(supra), wherein it has been held that the first appeal is barred by
limitation, the dismissal on preliminary point is barred by limitation
merges with the decree and therefore the remedy to the petitioner is to
file an appeal before the High Court.
In the case of Shyam Sunder Sarma (supra), the Apex Court while
dealing with the issue has relied upon para 9 of the judgment onwards
and referring the judgments passed by the Apex Court in the case of M/s.
Mela Ram and Sons vs. Commissioner of Income Tax, 1956 SCR 166,
K.K. Porbunderwalla vs. Commissioner of Income Tax 1952 21 ITR 63
and Sheodan Singh vs. Daryao Kunwar AIR 1966 SC 1332 held that the
appeal is dismissed on the ground of application for condonation of
delay in filing the appeal, would amount to merger of decree in the
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appellate court order and therefore the remedy would be to file an appeal
and not otherwise.
In view of the aforesaid enunciation of law, it is held that the
present petition is not maintainable under Article 227 of the Constitution
of India. Accordingly, the miscellaneous petition filed by the petitioner
is dismissed. However, liberty is granted to the petitioner to resort to
remedy available to him, in accordance with law.
(VIJAY KUMAR SHUKLA)
JUDGE
Arun/-
