The applicant filed a suit being Suit No. 1309 of 1994 for cancellation of an agreement to sale which was decreed by judgment and order dated 23 January 2010. Aggrieved the applicant preferred a time barred appeal.
The delay condonation application under Section 5 of the Limitation Act which was registered as Misc. Case being Misc. Case No. 530 of 2011. The Lower Appellate Court rejected the Section 5 application by the impugned order dated 20 May 2013. Aggrieved, the applicant has approached this Court assailing the order passed by the appellate court/Additional District Judge, Court No. 5, Agra under Article 227 of the Constitution.
The question for determination is whether the appeal would stand dismissed upon dismissal of an application filed under Section 5 of the Limitation Act for condonation of delay.
In Shyam Sunder Sharma vs. Pannalal Jaiswal and others1 a three Judge Bench held while considering the question whether an appeal accompanied by an application for condoning the delay in filing the appeal is an appeal in the eyes of law, when the application for condoning the delay and consequently, the appeal is dismissed as being barred by limitation, in view of Section 3 of the Limitation Act. Relying upon several authorities including decision rendered by the Privy Council in Nagendra Nath Dey vs. Suresh Chandra Dey2 wherein it was held as follows:
"There is no definition of appeal in the Civil Procedure Code, but their Lordship 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 ordinary acceptation of the term and that it is no less an appeal because it is irregular or incompetent."
The observations was followed in subsequent decisions of the Supreme Court and finally the specific question came up for consideration in M/s Mela Ram and Sons vs. The Commissioner of Income Tax3 wherein, it was held that an appeal presented out of time is an appeal and an order dismissing it being time barred is one passed in an appeal. The Court quoted with approval, the observations of Chagla C.J. In K.K. Porbunderwalla vs. Commissioner of Income Tax4 to the following effect:
"......although 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."
In Sheodan Singh vs. Daryao Kunwar5, it was again reiterated that dismissal of an appeal from a decree on the ground that the appeal was barred by limitation was decision in an appeal. The Supreme Court held that where a decision is given on the merits by the trail court and the matter is taken in appeal which is dismissed on some preliminary ground like limitation or default in printing, it must be held that such dismissal confirms the decision of the trial court on the merits, whatever may be the ground for dismissal of the appeal.
This Court in Prem Wati and another vs. Munni Devi @ Minakshi and another6 relying upon the aforementioned judgments and several other judgments of various High Courts held that rejection of an application for condoning the delay in filing the appeal is a decision in appeal, therefore, even if no order is passed on the appeal while dismissing the delay condonation application would have no bearing, the appeal would automatically stand dismissed.
Similar view was taken in Smt. Geeta Bala Goyal and another vs. Kailash Chandra and others7, wherein holding that the rejection of memorandum of appeal where a decision is given on merits by the trial Court and the matter is taken in appeal and the appeal is dismissed on some preliminary grounds i.e. limitation or default in printing, it must be held that such dismissal confirms the decision of the appellate Court on merits itself.
The term appeal wherever used clearly appears to be of wide import so as to take in all types of appeals. Where the memorandum of appeal has been presented as indicated in Sub-rules (1) and (2) of Rule 1 of Order XLI and within the period of limitation prescribed therefore, it must be held that there is a valid and competent appeal. However, where the presentation of memorandum of appeal is defective on some ground or other and is not is consonance with the provisions of Sub-rules (1) and (2) of Rule 1 of Order XLI or is presented beyond the period of limitation, it may be called irregular, incompetent, unmaintainable appeal. Nonetheless, it is an appeal in eye of law for all practical purposes and it is not non-est.
The law, therefore, on the subject is clear and unequivocal that an appeal presented beyond time was nevertheless an appeal in the eyes of law for all purposes and an order dismissing the appeal on whatever ground was a decree that could be subject to second appeal. Rule 3A of Order 41 introduced by Amendment Act 104 of 1976, did not in any way affect the 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, upon dismissal of the application for condonation of the delay, is in substance and effect the confirmation of the decree appealed against. Thus, the position that emerges on a survey of the pronouncements is that an appeal filed along with an application for condonation of delay when dismissed on the refusal to condone the delay is nevertheless a decision in the appeal.
Submission of the learned counsel for the applicant that the learned Appellate Court merely dismissed the Section 5 application but has not passed an order that the appeal would also stand dismissed, therefore, the petition under Article 227 would be maintainable, against the order of rejection of an application to condone the delay. In my opinion, in view of the authoritative pronouncements referred herein above, the argument is misconceived.
For the reasons stated herein above, the petition is dismissed being not maintainable.
However, dismissal of the petition shall not preclude the applicant from approaching the appropriate Court for redressal of his grievance.
Registry is directed to return the certified copy of the judgment and decree to the learned counsel for the applicant after retaining the photo copy on record.
No cost.
Order Date :- 15.2.2016 S.Prakash