Unknown vs Akshil Kumar Gupta
2025 Latest Caselaw 5067 UK

Uttarakhand High Court

Unknown vs Akshil Kumar Gupta on 29 October, 2025

Author: Rakesh Thapliyal

Bench: Rakesh Thapliyal

     HIGH COURT OF UTTARAKHAND AT NAINITAL

          Hon'ble Justice Sri Rakesh Thapliyal

                       29th October 2025
                Second Appeal No. 68 of 2018

M/s Zaz Sons Export Pvt. Ltd
                                           ............... Appellant
                               Vs.
Akshil Kumar Gupta
                                           ............Respondents

Counsel for the Appellant: Ms. Menaka Guruswamy, learned Senior Advocate assisted by Mr. Siddharth Sah and Mr. Sanjeev Srivastav, learned counsel.

Counsel Respondents: Mr. S.K. Jain, learned Senior Advocate assisted by Mr. Siddharth Jain, learned counsel.

(Sri Rakesh Thapliyal, J.)

1. Heard on IA No. 12988 of 2025.

2. Miscellaneous application IA No. 12988 of 2025 has been moved by the appellant proposing to add more substantial question of law as mentioned in para 16.

3. On this application, objection has been filed by the respondent/plaintiff.

4. Learned counsel for the appellant submits that she is only proposing substantial question of law no. (ii), to be framed which reads as under:-

(ii) If the answer to Question no. 1 is in the affirmative, whether the Civil Court at Dehradun had jurisdiction to entertain the suit in view of the Purchase Order conferring exclusive jurisdiction on the courts at Kanpur."?

5. Mr. S.K. Jain, learned Senior Advocate for the respondent raised serious objection on the aforesaid

proposed substantial question of law. He submits that when first appeal was 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 questions as to whether the First Appellate Authority has rightly refused to condone the delay and if it holds that delay has rightly been refused to be condoned then the appeal before it would be dismissed and if it holds that delay has wrongly been refused to be condone, 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. Mr. Jain argued that under any circumstances the Second Appellate Authority has no jurisdiction whatsoever to enter upon the merits of the matter and to adjudicate upon the validity of the order passed by the original authority, and, since, in the present case First Appellate Authority has itself not decided the appeal on merits and has dismissed the same only on the ground of delay, therefore, in any manner the proposed substantial question of law by way of moving the aforesaid misc. application cannot be framed.

6. In support of submission as above, Mr. Jain placed reliance on the judgment of the Hon'ble Apex Court in the case of Mamtaz & Ors. vs. Gulsuma @ Kulusuma, (2022) 4 SCC 555 and referred para 2 onwards to para 9 which are being reproduced herein below:-

2. The facts leading to the present appeal, which are necessary for the purpose of disposal of the present appeal in nutshell are as under:-

2.1 That the appellants herein filed a suit for declaration and possession. The Trial Court by judgment and decree dated 08.01.2018 decreed the said suit. As such the said suit proceeded ex parte and the judgment and decree passed by the Trial Court was ex parte decree.

2.2 Two remedies were available to the defendant - one, filing an application for setting aside the ex parte decree under Order IX Rule 13 of the Civil Procedure Code (hereinafter referred to as "CPC") and the other preferring an appeal against the judgment and decree passed by the Trial Court. 2.3 The defendant - respondent herein preferred the second option and preferred appeal before the First Appellate Court against the judgment and decree passed by the Trial Court.

There was a delay of 2 years and 7 months in preferring the first appeal. Therefore, the respondent herein - original defendant - the appellant before the First Appellate Court filed I.A. No. 1 of 2020 requesting to condone the delay. However, the appellant before the First Appellate Court - original defendant for whatever reason withdrew the said application for condonation of delay.

2.4 That the first appeal came up before the First Appellate Court. As there was no fresh application to condone the delay and the earlier condonation of delay application requesting to condone the delay of 2 years and 7 months was withdrawn, by order dated 10.12.2020, the First Appellate Court dismissed the first appeal on the ground that in absence of any application to condone the delay the appeal under Section 96 CPC shall not maintainable. Thus, the First Appellate Court dismissed the first appeal solely on the aforesaid ground of limitation and the First Appellate Court did not go into the merits of the case at all. 2.5 Feeling aggrieved and dissatisfied with the order passed by the First Appellate Court dismissing the appeal as not maintainable in absence of any delay condoned application, the respondent herein - original defendant - appellant before the First Appellate Court preferred second appeal before the High Court. By the impugned judgment and order, the High Court has allowed the said second appeal and has not only set aside the judgment and order passed by the First Appellate Court dismissing the appeal as not maintainable in absence of delay condoned application, but has also set aside the ex parte judgment and decree passed by the Trial Court as if the High Court was considering the order passed in an application under Order IX Rule 13 CPC and has also quashed and set aside the judgment and decree passed by the Trial Court and has remanded the matter to the Trial Court for fresh decision of the suit in accordance with law.

2.6 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the original plaintiffs have preferred the present appeal.

3. We have heard Shri Sharanagouda Patil, learned counsel appearing on behalf of the appellants and Shri S.N. Bhat, learned Senior Advocate appearing on behalf of the contesting respondent - original defendant.

4. Having heard the learned counsel for the respective parties and considering the facts narrated hereinabove, we are of the opinion that the impugned judgment and order passed by the High Court quashing and setting aside the judgment and

decree passed by the Trial Court and remanding the matter back to the Trial Court is unsustainable.

5. It is required to be noted that what was challenged before the High Court was the order/judgment and order passed by the First Appellate Court dismissing the first appeal under Section 96 of the CPC as not maintainable in absence of any delay condoned application. There was no decision by the First Appellate Court on merits. If the High Court was of the opinion that the First Appellate Court erred in not condoning the delay in appeal and dismissing the appeal on the ground of limitation, in that case the High Court could have set aside the order passed by the First Appellate Court dismissing the appeal on the ground of limitation and thereafter remand the matter to the First Appellate Court to decide the appeal on merits.

6. From the impugned judgment and order passed by the High Court, it appears that the High Court proceeded further with the hearing of the appeal as if the High Court was considering the appeal against the order passed on an application under Order IX Rule 13 CPC, whereas the appeal was against the order and decree passed by the Trial Court, which was affirmed by the First Appellate Court as barred by limitation. Therefore, the procedure adopted by the High Court is unknown to the procedure known to law under the provisions of the CPC. Therefore, the impugned judgment and order passed by the High Court is unsustainable.

7. At this stage, Shri S.N. Bhat, learned Senior Advocate appearing on behalf of the respondent herein - original defendant - appellant before the First Appellate Court has requested to permit the original defendant - appellant before the First Appellate Court to revive the application for condonation of delay being I.A. No.1 of 2020, which was withdrawn mistakenly on wrong applying the provisions of the Limitation Act. Shri Bhat, learned Senior Advocate has submitted that if the original defendant is not permitted to revive the application for condonation of delay, he would be remediless.

8. In view of the above and for the reasons stated above, present appeal succeeds. The impugned judgment and order passed by the High Court dated 21.04.2021 passed in RSA No.200073 of 2021 is hereby quashed and set aside. The matter is remanded to the First Appellate Court. The appeal before the First Appellate Court being R.A. No.22 of 2020 is ordered to be restored to the file in the Court of the First Appellate Court.

9. The respondent herein - original defendant - appellant before the First Appellate Court is permitted to move an appropriate application for revival of I.A. No.1 of 2020 and the First Appellate Court is directed to revive I.A. No.1 of 2020, which seems to have been withdrawn by the original defendant - appellant before the First Appellate Court mistakenly and thereafter the First Appellate Court to first decide and dispose of the said application for condonation of delay and if the delay is condoned in that case the First Appellate Court to finally decide and dispose of the first appeal in accordance with law and on its own merits. If for any valid reasons, the application for condonation of delay is dismissed by the First Appellate Court, it goes without saying that it will be open for the original defendant to challenge the same before a higher forum/court, which may be considered in accordance with law and on its own merits.

By referring this judgment, Mr. Jain submits that scope of the present second appeal is limited, and, since, First Appellate Court had not touched the merit of the case and the appeal was dismissed only on the ground of limitation, therefore, in the present second appeal the merit of the judgment cannot be examined. In addition to this, Mr. Jain also placed reliance on another judgment of the Hon'ble Apex Court in the case Surendra G. Shankar & Anr. Vs. Esque Finamark Pvt. Ltd & Ors., passed in Civil Appeal No. 929 of 2025 decided on 22.01.2025, 2025 INSC 102 by referring para 5, 6, 8, 9 and 10 which are being reproduced herein below:-

"5. The Appellate Tribunal, Mumbai vide order dated 1.12.2022 dismissed the appeals as barred by limitation while observing that since the order dated 23.07.2019 was passed in the presence of the parties (which includes their counsel), there was no sufficient cause to condone the delay in filing the appeal.

6. Aggrieved by dismissal of those appeals, the appellants along with other aggrieved parties separately preferred second appeal before the High Court.

8. We have heard Mr. Vinay Navare for the appellants and Mr. S. Niranjan Reddy for the respondents. Although multiple submissions were raised from both sides touching upon the merits of the case, we do not deem it necessary to refer to them as the present appeals can be allowed on a short ground, which is, that the order impugned before the High Court was of refusal to condone the delay in preferring the appeals before the Appellate Tribunal, Mumbai. Once the High Court opined that in normal circumstances the delay ought to have been condoned, it ought not to have commented upon the merits of the orders dated 23.07.2019 and 16.10.2019, particularly, when the Appellate Tribunal, Mumbai had not dealt with the correctness of those orders. In such circumstances, the High Court should have set aside the order rejecting the delay condonation application, condoned the delay and restored the appeals on the file of the Appellate Tribunal, Mumbai for consideration on merits.

9. This we say so because the scope of the appeal before the High Court was limited to examining the correctness of the order of the Appellate Tribunal, Mumbai declining condonation of delay. Only when the delay is condoned, the merits of the order could be examined by the Appellate Court.

10. We may also put on record that before the Appellate Tribunal, the appellants had disputed that the order dated 23.07.2019 was based on consent of the parties. In these circumstances, when merits of the orders impugned in the appeal was not touched upon by the Appellate Tribunal, the High Court ought not to have commented on the merits."

7. In response to this, Ms. Menaka Guruswamy, learned Senior Advocate for the appellant submits that the judgment relied upon by Mr. Jain has no relevance, particularly, in view of the judgment rendered by the Constitutional Bench of the Hon'ble Apex Court in the case of Sheodan Singh vs. Daryao Kunwar, 1966 SCC Online 98 wherein it has been held 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, 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."

Learned counsel for the appellant also placed reliance on another judgment of the Delhi High Court in the case of Raj Kumar vs. Ghanshyam Das Gupta through Legal Heirs, 2022 SCC Online Delhi 2352 by giving reference of para 6, 7, 8 and 13 which reads as under:

"6. The Supreme Court has, therefore, in the afore italicised passage from Sheodan Singh8, held that, where a Trial Court disposes of a suit on merits, and the first appeal is dismissed on limitation, the decision of the First Appellate Court must also be deemed to be on merits, inasmuch as it confirms the decision on merits returned by the Trial Court.

7. A possible sequitur to this may be that a second appeal, under Section 100, would be maintainable, on substantial questions of law which arise out of the decision of the Trial Court.

8. In the present case, however, one need not labour to that extent, as, the reasoning of the First Appellate Court, in rejecting the petitioner's application for condonation of delay, is ex facie perverse. As such, even if one were to restrict the scope of examination to the impugned order dated 9th April 2019, a case for interference does exist.

13. The right of first appeal is a sanctified statutory right. It is not to be lightly denied. Where the delay is not unconscionable, and is on the ground of indisposition, ordinarily, the court should be lenient in its approach."

Learned counsel further placed reliance to another judgment of the Hon'ble Apex Court in the case of Inder Singh vs. State of Madhya Pradesh, 2025 SCC Online SC 600, decided on 21.03.2025 and referred para 14, 15 and 18, which reads as under:-

"14. There can be no quarrel on the settled principle of law that delay cannot be condoned without sufficient cause, but a major aspect which has to be kept in mind is that, if in a particular case, the merits have to be examined, it should not be scuttled merely on the basis of limitation.

15. In the present case, the filing of the Review Petition before the First Appellate Court was with a delay of two years and four months and the Second Appeal before the High Court was delayed by about a year from the date of the dismissal of the Review Petition i.e., 30.09.2019. Pausing for a moment, it is necessary to indicate that in the present case, the dispute over title of a land is not between private parties, but rather between the private party and the State. Moreover, when the land in question was taken possession of by the State and allotted for public purpose to the Youth Welfare Department and the Collectorate and has continued in the possession of the State, the claim of the State that it is government land cannot be summarily discarded. We find, upon a perusal of the record, that the appellant had, in fact, filed an execution case for taking over possession of the land, which would demonstrate clearly the admitted position that he was not in possession thereof. Thus, the matter would, in our considered view, require adjudication on its own merits due to various reasons, inter alia, the fact that a new district has been formed after the initial claim of the appellant of being allotted the land in the years 1975- 1976/1977-1978. Therefore, the delay of 1537 days reckoned from 01.10.2015 i.e. when the First Appellate Court decreed the suit, includes two years and four months delay in filing a Review Petition (which was itself dismissed on the ground of delay by the First Appellate Court) and of about a year thereafter for filing the Second Appeal before the High Court, in the peculiar facts and circumstances of the case, which, at the cost of repetition relate to land claimed by the State as government land and in its possession, persuade us to not interfere with the Impugned Order. Relevantly, initially the suit was dismissed by the Trial Court, which decision was reversed by the First Appellate Court.

18. Considering the above pronouncements and on an overall circumspection, we are of the opinion that the Second Appeal deserves to be heard, contested and decided on merits. However, a note of caution is sounded to the respondent to exhibit promptitude in like matters henceforth and in futuro, failing which the Court may not be as liberal."

8. After hearing the arguments of the learned counsel for the parties and after perusing the judgments, as

relied upon by both the parties and also in view of the judgment of the Constitutional Bench of the Apex Court in the case of Sheodan Singh (supra) and also in view of the latest judgment of the Hon'ble Apex Court in the case of Inder Singh (supra), this Court is of the view that since the instant second appeal has already been admitted on three substantial questions of law and whether in the present second appeal the merit of the case can be examined or not, this Court is of the view that to examine this issue it is necessary to frame the substantial question of law, as proposed in IA No. 12988 of 2025.

9. Accordingly, the Misc. application IA No. 12988 of 2025 is allowed by framing following substantial question of law no. (iv):-

"(iv) Whether the Civil Court at Dehradun had jurisdiction to entertain the suit in view of the Purchase Order conferring exclusive jurisdiction on the courts at Kanpur."?

10. The Trial Court record has already been received. In such an eventuality, Registry is directed to prepare the paper book positively within ten days and supplied the same to the learned counsel for the parties on payment of usual charges.

11. List this appeal for final arguments on 10.12.2025.

(Rakesh Thapliyal, J.) Parul