Uttarakhand High Court
Mr. Siddhartha Sah vs Ghanshayam Das Gupta on 1 May, 2025
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
Office Notes,
reports, orders
or proceedings
SL.
Date or directions COURT'S OR JUDGE'S ORDERS
No.
and Registrar's
order with
Signatures
SA No.68 of 2018
Hon'ble Rakesh Thapliyal, J.
1. Mr. Siddhartha Sah, learned counsel for
the appellants.
2. Mr. S.K. Jain, learned Senior counsel,
assisted by Mr. Siddharth Jain, learned counsel
for the respondent.
3. On 29.04.2025, the matter was posted for
today in order to enable the counsel for the
parties to address on the issue as to whether
the order of dismissal of the application under
Section 5 of the Limitation Act in the first
appeal amounts to confirmation of the decree of
the trial Court. Today, both the counsels placed
reliance on several judgements, the first
judgment, which has been relied upon by
Mr. Siddhartha Sah, learned counsel for the
appellants, is in the case of Rajkumar versus
Ghanshayam Das Gupta, 2022, SCC, OnLine
Del 2353 and he particularly placed reliance in
para Nos.2, 5, 6 and 7, wherein there is a
reference of the judgment of Constitutional
Bench of the Hon'ble Apex Court in the case of
Sheodan Singh versus Daryao Kunwar, 1966,
SCC OnLine SC 98 and by referring this
judgment, Mr. Siddhartha Sah argued that
dismissal of the first appeal on the ground of
delay amounts to the appeal being heard and
finally decided on the merits, whatever may be
the ground for dismissal of the appeal.
4. Surprisingly, Mr. S.K. Jain, learned
Senior Counsel also relied upon the same
judgement of Delhi High Court in the case of
Rajkumar versus Ghanshayam Das Gupta
(Supra) by referring para Nos.10 to 17. By
referring this judgment, he submits that the
ultimate question which has been decided by
the Delhi High Court is confined to the issue as
framed in para No.10, which reads as under:-
"Whether the decision of the learned First
Appellate Court, to refuse to condone the
delay on the part of appellate in preferring
the First Appeal and, thereby, denying the
appellant his right to First Appeal, is not
perverse?"
This question was answered in Para
No.13 onwards to Para No.16 and the question
was answered by holding that the Court should
be lenient in it's approach and matter was
remanded for consideration on merits.
5. In addition to this, Mr. S.K. Jain, learned
Senior counsel also relied upon the another
judgment of the High Court of Madhya Pradesh
in the case of Bhanwarlal and Others versus
Toofan Singh and Another, 2022 SCC
OnLine MP 5947 and placed reliance on para
No.7 and 8, which are being extracted herein-
below:-
7. When a First Appeal is dismissed
by the First Appellate Authority solely
upon rejection of an application for
condonation of delay in filing the same
and Second Appeal is preferred against
that order, then the jurisdiction of Second
Appellate Authority is confined to
consideration of question as to whether
the First Appellate Authority has rightly
refused to condone the delay. If it holds
that delay has rightly been refused to be
condoned, then the appeal before it would
be dismissed. If it holds that delay has
wrongly been refused to be condoned,
then it may allow the appeal, condone the
delay in preferring the First Appeal and
remand the matter back to the First
Appellate Authority to decide the Appeal
on merits or may pass such appropriate
orders as it may deem fit. However, under
any circumstance the Second Appellate
Authority has no jurisdiction whatsoever to
enter upon merits of the matter and to
adjudicate upon the validity of the order
passed by the original authority. This is
more so since the First Appellate Authority
has itself not decided the appeal on merits
but has dismissed the same only on
ground of delay.
8. The appeal preferred by the
respondents before the Sub Divisional
Officer had been dismissed by him as
barred by time upon rejection of their
application under section 5 of the
Limitation Act, 1963 for condonation of
delay in filing the same. The appeal had
not been dismissed on merits. Thus, the
only question for consideration before the
Additional Commissioner was as to
whether the Sub Divisional Officer had
rightly refused to condone the delay. If he
had come to the conclusion that the Sub
Divisional Officer had erred in refusing to
condone the delay, then the only course
available to him would have been to
remand the matter back to the Sub
Divisional Officer for decision of the First
Appeal on merits. If he had come to the
conclusion that the Sub Divisional Officer
had rightly refused to condone the delay
and had correctly dismissed the appeal as
barred by time, he ought to have
dismissed the appeal. In any case he had
no jurisdiction whatsoever to have himself
entered into the merits of the case and to
have considered the legality and validity
of the partition order passed by the
Additional Tehsildar. In doing so he has
exercised jurisdiction not vested in him.
The order passed by him hence cannot
stand judicial scrutiny and is
consequentially set aside.
6. After hearing at length to the learned
counsel for the parties, for proper adjudication
of the instant second appeal in place of the
earlier substantial questions of law, framed at
the time of admission of the instant second
appeal on 26.11.2019, following questions of
law are being framed for determination.
(i). Whether the First Appellate Court
adopt a liberal approach in considering
application for condonation of delay on ground
of substantial cause under Section 5 of the
Limitation Act?
(ii). Whether dismissal of the First Appeal
as barred by time amounts to confirmation of
the decree passed by the trial Court, if no, what
would be the effect?
(iii). If order of the First Appellate Court
amounts to the confirmation of the decree then
whether the interest as awarded by the trial
Court was in conformity with the provision of
"The Interest on Delayed Payments to Small
Scale and Ancillary Industrial Undertakings
Act, 1993", (Act No.32 of 1993).
7. On the joint request, put up this matter
on 14.05.2025 at 2:00 pm for final disposal.
(Rakesh Thapliyal, J.)
01.05.2025
R.Bisht
