Rohit Kumar vs Anju Devi (2023:Rj-Jd:32475)
2023 Latest Caselaw 7847 Raj

[2023:RJ-JD:32475]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Second Appeal No. 93/2023

Rohit Kumar S/o Ratanlal, Aged About 40 Years, By Caste Agarwal, Resident Of Near Hisariya Market, Ward No. 21, Hanumangarh Town, Tehsil And District Hanumangarh. (Raj.)

----Appellant Versus Anju Devi W/o Pawan Kumar, By Caste Agarwal, Resident Of Near Hisariya Marke, Ward No. 21, Hanumangarh Town, Tehsil And District Hanumangarh. (Raj.)

----Respondent

For Appellant(s) : Mr. J. Gehlot For Respondent(s) : Mr. Rajat Dave

HON'BLE MS. JUSTICE REKHA BORANA

Judgment

04/10/2023

1. The present second appeal has been preferred against the

order dated 04.05.2023 passed by the Additional District Judge

No.2, Hanumangarh in Civil Appeal No.07/23 whereby the

application under Section 5 of the Limitation Act as filed by the

appellant has been rejected. As a consequence thereof, the

regular first appeal also stood dismissed.

2. The application under Section 5 of the Limitation Act has

been rejected by the first Appellate Court on the sole ground that

the same was not filed along with the memorandum of appeal.

The first Appellate Court while relying upon the judgments of

Hon'ble Bombay High Court in the case of Khatunbi & Ors vs.

Aminabai, 2007 (1) CCC 169 (BOMBAY) and Hon'ble Delhi

High Court in the case of RC Chawdhary vs. M/s Prestige

[2023:RJ-JD:32475] (2 of 4) [CSA-93/2023]

Finance and Chit Fund Co.(P) Ltd., 1997 (1) CCC 698

(DELHI) held that, if the application under Section 5 of the

Limitation Act has not been filed along with memorandum of

appeal, the appeal itself loses its existence and hence, the same

cannot be entertained/admitted.

3. Counsel for the appellant submitted that the conclusion as

arrived by the first appellate Court while relying on the two above

mentioned judgments is totally erroneous being in contravention

to the Full Bench judgment of this Court in the case of Dilip Bhai

Gajrota & Ors. vs. Contractor Lime Gotan, RLR 1995 (1)

page 602.

4. The following substantial question of law arises in the

present appeal :

Whether the rejection of the application under

Section 5 of the Limitation Act by the first appellate

Court solely on the ground of the same having not

been filed along with the memorandum of appeal is

erroneous and contrary to law?

5. In view of the submissions made, Admit.

As the respondent is represented by the counsel who has put

in appearance in caveat, notices need not be issued.

6. With the consent of both the counsels, the appeal is heard

finally at this stage itself on the above substantial question of law

as framed.

7. In Dilip Bhai (supra), the Full Bench of this Court was

considering the following two questions which were referred to it

for decision:-

[2023:RJ-JD:32475] (3 of 4) [CSA-93/2023]

"1. Whether, in view of Rules 132 and 134, a time barred appeal when filed, must accompany along with memo of appeal, an application under Section 5 of the Limitation Act, 1963 along with affidavit or condonation application can be filed later on, if so, what is the effect of the relevant rules?

2. Whether the provision of O.41 Rule 3-A C.P.C. is mandatory and the application under Section 5 of the Limitation Act, 1963 for the condonation of delay in filing afterwards?"

The Hon'ble Full Bench decided the above two questions as

under:-

"(1) An appeal which is apparently barred by limitation can be filed without an application under section 5 of the Limitation Act, 1963 and the provisions of Rules 132 and 134 requiring filing of such application are directory in nature.

(2) The provisions of Order 41 Rule 3-A of the Code of Civil Procedure are not mandatory and, therefore, filing of an application under Section 5 of the Limitation Act, 1963 for condonation of delay in filing the appeal at a later stage is permissible."

8. In view of the above settled position of law, the question of

law as framed is answered in the manner that the dismissal of the

application under Section 5 of the Limitation Act by the first

Appellate Court on the ground that it was filed after 27 days of

filing of memorandum of appeal, cannot be held to be tenable and

hence, set aside.

9. Learned counsel for the appellant submitted that even

otherwise in the present matter, an amended decree was passed

subsequently and hence, the limitation would commence from the

date of passing of the amended decree and not the original

decree.

10. Learned counsel for the respondent in response to the said

argument relied upon certain judgments wherein it has been held

[2023:RJ-JD:32475] (4 of 4) [CSA-93/2023]

that the limitation would not commence afresh in cases where an

amended decree is passed.

11. This Court is not inclined to go into the said ground as the

first Appellate Court has not given any specific finding on the said

ground although the same was raised before it.

12. In view of the same, the present second appeal is allowed.

The order impugned dated 04.05.2023 is set aside and the matter

is remanded back to the first Appellate Court for decision afresh

on the application under Section 5 of the Limitation Act as filed by

the appellant.

It is made clear that the appellant would not be entitled to

file any fresh application under Section 5 of the Limitation Act to

raise any extra grounds in addition to those already raised in the

application filed earlier. The Court below would decide the

application afresh after hearing both the parties/counsels. Both

the parties shall appear before the first Appellate Court on

18.10.2023. The Court would not be required to issue any afresh

notice/summon to any of the parties.

13. Record of both the Courts be sent back forthwith.

14. Stay petition and all pending applications, if any, stand

disposed of.

(REKHA BORANA),J 151-KashishS/-

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