This is a writ petition under Article 227 of the Constitution of India challenging an order dated 29.9.2018 passed by the IIIrd Addl. District & Sessions Judge/Raebareli in Misc. Case (Civil) No.R- 143 of 2011 dismissing the application of the petitioner under section 5 of the Limitation Act 1963 for extension of limitation and condonation of delay in filing the appeal under section 96 read with Order XLI of the Code of Civil Procedure 1908.
The preliminary point to be considered in this case is as to whether the remedy against such an order is by way of a petition under Article 227 of the Constitution of India or by way of a second appeal under section 100 C.P.C. This question has recently been considered and decided by this Court vide judgment dated 18.12.2019 passed in Writ Petition No. 25879 (MS) of 2019, Ram Prasad and ors. in the following terms :
"Hon'ble Rajan Roy,J.
By means of this petition under Article 227 of the Constitution of India the petitioner has challenged an order dated 24.4.2019 passed by the Additional District Judge (Court No.4)/Special Judge (E.C. Act), Sitapur, dismissing the application of the petitioner under section 5 of the Limitation Act 1963 (hereinafter referred as 'Act 1963') which was filed alongwith the appeal filed by the petitioners against the judgment and decree passed in O.S. No. 141 of 1999 allowing the suit of the private opposite parties herein. The application under section 5 was registered as Civil Misc. Case No.91 of 2014 and the same has been dismissed by the Appellate Court.
A question arose during the course of hearing as to the maintainability of this petition and whether a second appeal under section 100 C.P.C. would not lie against the impugned judgment ? In response, the learned counsel for the petitioner submitted that the order which has been impugned herein does not fall within the definition of decree under section 2(2) of the Code of Civil Procedure Code 1908, as it does not conclusively determine the rights of the parties with regard to all or any of the matters in controversy in the appeal arising out of the suit, instead it only rejects the application under section 5 of the Limitation Act 1963 which was registered as a separate miscellaneous case. As no decree of such an order is prepared, a second appeal under section 100 C.P.C. will not lie as it lies against appellate decrees.
Learned counsel for the petitioner relied upon a decision of the Supreme Court in the case of Ratan Singh v. Vijai Singh and others, AIR 2001 SC 279 in support of his contention.
At first blush the submission of the petitioners' counsel appeared to be quite attractive, especially in view of the law laid down by the Supreme Court in the case of Ratan Singh (supra) wherein, the provision contained in section 2(2), C.P.C., defining a decree, had been considered and it was held that an order dismissing an application under section 5 of the Act 1963 would not be a decree and that the order rejecting the memorandum of appeal consequent to rejection of the application under section 5 of the Act 1963 was merely an incidental order. In the said decision the Supreme Court approved the Full Bench decision of the Calcutta High Court in Mamooda Khateen & ors. V. Benian Bibi & ors., AIR 1976 Calcutta 415. The Supreme Court approved the reasoning of the Full Bench that when an appeal is barred by limitation, it cannot be admitted at all until the application under section 5 of the Act 1963 is allowed and until then the appeal, even if filed, will remain in limbo. If the application is dismissed, the appeal becomes otiose. Approving the said view, the Supreme Court disapproved the contrary view taken by other High Courts. The Privy Council decision in Nagendra Nath Dey & anr. V. Suresh Chandra Dey & anr., AIR 1932 PC 165, was also considered in Ratan Singh (supra), but it was observed that the said decision does not help in the context of the case before it, as, it related to the scope and interpretation of Article 182 of the old Limitation Act and in this regard it noticed serious departure made by the Parliament in the existing Limitation Act.
However, this court finds that in a subsequent decision in the case of Shyam Sunder Sharma v. Pannna Lal Jaiswal & ors., AIR 2005 SC 226, a three Judge Bench of the Supreme Court did not approve of the earlier view taken in the case of Ratan Singh (supra) and it held that an order passed on an application under section 5 of the Act 1963 rejecting the same is nevertheless an order passed in appeal. It disapproved the Full Bench decision of the Calcutta High Court in Mamooda Khateen & ors. (supra) and approved another Full Bench decision of the Kerala High Court in Thambi v. Mathew, AIR 1988 Ker. 48, wherein it was held that an appeal presented out of time was nevertheless an appeal in the eyes of law for all purposes and an order dismissing the appeal was a decree and that could be the subject of a second appeal.
It is fruitful to refer to the decision of the Full Bench of the Kerala High Court in Thambi's case (supra) wherein their Lordships noticed the provision of Order XLI Rule 3-A C.P.C. and then held as under :
"It is clear from sub-rule (1) that there is a proper presentation of the appeal filed out of time if it is accompanied by an application to condone delay supported by an affidavit setting forth the grounds for the condonation of delay. Sub-rule (2) requires the application to be finally decided by the court before it proceeds to deal with the appeal under rule 11 or rule 13, as the case may be. A dismissal of the application for condonation of delay results in the dismissal of the appeal which can only be under R. 11. S. 3 of the Limitation Act also requires an appeal filed after the prescribed period of time to be dismissed subject to the provisions contained in Ss. 4 - 24. Sub-rule (3) of R. 3A does not render an appeal properly presented under sub-rule (1), a proposed appeal. Sub-rule (3) in spite of its language would only mean that no stay of the execution of the decree appealed against shall be granted before the court after hearing the appeal under R. 11 decides to admit the same. An appeal presented out of time is nevertheless an appeal in the eye of law for all practical purposes (vide Musala Annaji Rao v. Boggarapu Papaiah Setty, AIR 1975 Abdg Ora 73). The question, whether an appeal properly presented with a petition to condone the delay can be admitted or not, is at the second stage and to reach that stage the application has to be disposed of finally. Sec. 3 of the Limitation Act also makes it obligatory on the part of the court to dismiss an appeal presented out of time subject, of course, to the provisions of Ss. 4 - 24. In a case, where an appeal has been admitted and then dismissed on a preliminary objection raised at the hearing disclosing the fact that the appeal was filed out of time, is it possible to say that the order dismissing the appeal, though on the ground of limitation, is not a decree? The question is whether a dismissal of the appeal after considering an application to condone the delay should be treated differently. An appeal filed out of time is required to be dealt with by the appellate court under S. 3 of the Limitation Act and an order dismissing the appeal is a decree that can be subject of a second appeal as held by the Full Bench in Haji Hassan Rowther's case (AIR 1972 Ker 56). Sub-rule (4) of R. 11 of O. 41, CPC requires an appellate court, not being the High Court, dismissing an appeal under sub-rule (1) to deliver a judgment and a decree is to be drawn up in accordance with the judgment. It is thus clear that the dismissal of an appeal under O.41, Rule 11 postulates the drawing up of a decree which can be the subject of a further appeal under Order 41, Rule 1 read with O. 42, CPC. Sub-rule(4) of R. 11 does not dispense with the need of a decree when the High Court dismisses an appeal under sub-rule (1). The only exception is that it need not deliver a judgment recording its reasons for dismissing the same. It seems to us clear that R. 3A of O. 41 introduced by the CPC. Amendment Act, 1976 does not in any way affect the principle laid down by the Full Bench in Haji Hassan Rowther's case and by Viswanatha lyer, J. in Kunhiraman's case (1979 KLT 718)."
Their Lordships also took note of a Division Bench of the Allahabad High Court rendered as early as in 1884 in Gulab Rai v. Mangli Lal, ILR (1884) Allahabad 42, wherein it was held as under :
"In the Civil Procedure Code there is no separate provision which allows the appellate court to "reject" a memorandum of appeal on the ground of its being barred by limitation. S. 543 is limited to cases in which the memorandum of appeal is not drawn up in the manner prescribed by the Code, and it is only by applying S. 54(c), mutatis mutandis, (as provided by the last part of S. 582), to appeals that the Code can be understood to make provision for rejection of appeals as barred by limitation. However, S. 4 of the Limitation Act clearly lays down that every "appeal presented after the period of limitation prescribed therefor shall be dismissed." It is, therefore, clear that the order of the District Judge in this case must be taken to be one which falls under the definition of "decree" within the meaning of S. 2 of the Code, as the order, so far as the Judge was concerned, disposed of the appeal."
The Full Bench also noticed decision of the Supreme Court in Mela Ram & sons (supra) v. the Commissioner of Income Tax, Punjab, (1956) 29 ITR 607 (SC), wherein inter alia the Supreme Court affirmed the decision of the Madras High Court in Commissioner of Income v. Shahzadi Begum AIR 1952 Madras 232, which had held that if the appeal is dismissed as incompetent or is rejected as it was filed out of time and no sufficient cause was established, it results in an affirmation of the order appealed against.
The Supreme Court in Mela Ram (supra) also affirmed another decision of the Calcutta High Court reported in AIR1954 Cal. 468, in which it had been held that an appellate order may not, directly and by itself, confirm or reduce or enhance or annul an assessment and may yet dispose of the appeal. If it does so, it is immaterial whether the ground is a finding that the appeal is barred by Limitation or a finding that the case is not fit one for extension of time or both.
Referring to the aforesaid cases the Supreme Court in Mela Ram (supra) concluded, as observed by the Full Bench, that there is, thus, abundant authority for the position that section 31 should be liberally construed so as to include not only orders passed on a consideration of the merits of the assessment, but also orders which dispose of the appeal on preliminary issues such as limitation and the like.
The Full Bench also noticed the decision of the Supreme Court in the case of Rani Chaudhari v. Lt. Col. Suraj Jit Choudhary, (1982) 2 SCC 596, which had been followed in Mela Ram's case (supra) wherein it had been held as under:
"In the present case, the appeal was dismissed as barred by limitation. That it was an appeal even though barred by time is clear from Mela Ram & Sons v. C.I.T. (AIR 1956 SC 367) where Venkatarama Ayyar J., speaking for the Court, after referring to Nagendra Nath Dey v. Suresh Chandra Dey, (AIR 1932 PC 165), Raja Kulkarni v. State of Bombay (AIR 1954 SC 73) and Promotho Nath Roy v. W. A. Lee (AIR 1921 Cal 415) held that "an appeal presented out of time is an appeal, and an order dismissing it as time-barred is one passed in appeal". There can be no dispute then that in law what the respondent did was to file an appeal and that the order dismissing it as time-barred was one disposing of the appeal."
The Full Bench of the Kerala High Court went on to observe that disposal of an appeal filed out of time can only be by way of dismissal as provided for in section 3 of the Limitation Act. An appeal registered under Rule 9 of Order LXI C.P.C. is to be disposed off according to law and a dismissal of the appeal for the reason of delay in its presentation after the dismissal of an application for condonation of delay is in substance and effect a confirmation of the decree appealed against. This Full Bench decision was affirmed by the Supreme Court in Shyam Sunder Sharma's case(supra).
With regard to its earlier decision in Ratan Singh's (supra) the Supreme Court in Shyam Sunder Sharma's case (supra) held that it was in conflict with the ratio of the decision in the case of Mela Ram (supra) and the decision in Rani Chaudhary v. Lieutenant Col. Suraj Jeet Chaudhary, 1982 (2) SCC 586, as also, the Privy Council's decision in Nagendra Nath Dey (supra), which, though referred, was not applied on the ground that it was based on Article 182 of the Old Limitation Act 1908. The Supreme Court was of the view that the decision in Sheodon Singh v. Dariao Kunwar, AIR 1966 SC 1332 wherein also it was held that dismissal of an appeal from a decree on the ground that the appeal was barred by limitation, was a decision in the appeal and that 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, was also not noticed in Ratan Singh's case (supra) and latter was in conflict with the said decision. Thus, the earlier decision in Ratan Singh's case (supra) was impliedly overruled.
Now in view of the Three Judge Bench decision of the Supreme Court in Shyam Sunder Sharma's case (supra) two things are clear, one, that an order dismissing an application under section 5 of the Limitation Act 1963 for extending limitation for filing the appeal is also an order passed in appeal and the Full Bench of the Calcutta High Court when it held that an order rejecting a time-barred memorandum of appeal consequent upon refusal to condone the delay in filing that appeal was neither a decree nor appealable, did not lay down a correct law. In this view of the matter the irresistible conclusion is that a second appeal would lie against such an order as has been impugned in this writ petition as referred hereinabove.
Similar view has also been expressed by two coordinate Benches of this Court in the case of Smt. Premwati & anr. V. Smt. Munni Devi, (2009) 106 RD 697 and Rajendra Pal Singh v. Addl. District Judge, Ghaziabad 2016 (2) ADJ 699. In the latter case a specific plea was raised that the order impugned therein merely dismissed the section 5 application but it nowhere stated that the appeal would also stand dismissed, therefore, the argument advanced was that the petition under Article 227 of the Constitution of India would be maintainable against such an order, but, this argument was repelled in view of the authoritative pronouncements discussed in the said judgment, as have also been referred hereinabove.
There is another three Judges Bench decision of the Supreme Court in the case of S. Kalawati v. Durga Prasad & anr., AIR 1975 SC 1272, wherein, a similar issue as to whether an order passed not on merits of the appeal but otherwise such as on an application for condonation of delay in filing the appeal, non-prosecution or for any other reason, would amount to an order passed in appeal was considered, and it was held that unless the Court had applied its mind to the case and after consideration affirmed it the order cannot be said to be one of affirmance and after noticing the decision of the Privy Council in Abdul Mazid v. Jawahar Lal, ILR 1904 (36) Allahabad 350; decision of the Bombay High Court in Kursondas Dharamse v. Gangabai, ILR 1907 (32) Bombay 108 and the decision in Gulab Chand v. Kudi Lal, AIR 1952 MB the Supreme Court opined that the principle behind majority of decisions is thus to the effect that where an appeal is dismissed on the preliminary ground that it was not competent or for non-prosecution or for any other reason the appeal is not entertained, the decision cannot be said to a "decision, on appeal" nor of affirmance. It is only where the appeal is heard and the judgment delivered thereafter, the judgment can be said to be a judgment of affirmance. However, in view of the later decision by a Three Judges' Bench of the Supreme Court in Shyam Sunder Sharma (supra) the legal position at present is as discussed earlier i.e. such an order is an order passed in the appeal, hence appealable under section 100 C.P.C.
There are, however, certain practical difficulties in filing a second appeal in such circumstances notice of which needs to be taken by the Court. In the State of U.P. when a time-barred first appeal is filed under the Code of Civil Procedure alongwith an application under section 5 of the Limitation Act 1965 for extension of limitation and condonation of delay, it is the application which is registered as a miscellaneous case, as has happened in this case and is decided first. Only when the delay is condoned the appeal is registered. If the delay is not condoned, the application under section 5 is dismissed and the matter is laid to rest. More often then not no consequential orders are passed on the appeal, dismissing it. As the order rejecting the application under section 5 is not treated as one passed on the appeal, but, is treated as an order passed in the miscellaneous case, no decree is prepared in terms of section 2(2) C.P.C. This creates a practical difficulty in filing a second appeal against such an order under section 100 C.P.C. There was consensus at the Bar that against such an order dismissing the application for condonation of delay under section 5 of the Act 1963 without any consequential order for dismissal of the appeal a decree is not prepared by the Civil Courts in this State under the existing provisions of section 2(2) the Code of Civil Procedure 1908.
It is not out of place to refer to Section 3 of the Limitation Act 1963 which reads as under :
"Section 3. Bar of limitation.- (1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence."
This provision also mandates dismissal of the appeal itself if it is time-barred and application under section 5 for extension of limitation/condonation of delay is rejected.
In this view of the matter, as, considering the decision of the Supreme Court in Shyam Sunder Sharma (supra), even such orders passed on application under section 5 of the Act 1963, are to be treated as not only disposing the said application but are also to be treated as an order passed in appeal, rejecting it, irrespective of the fact whether or not a consequential order of dismissal is passed in such appeal and a second appeal would lie under section 100 C.P.C. against such an order, a decree of such an order should also be prepared treating it an order passed on the appeal itself, resulting in consequential dismissal of the appeal. This is the ratio of the Full Bench of the Kerala High Court om Thambi's case (supra) wherein the provisions of the C.P.C., Limitation Act and various decisions on this issue have been considered elaborately, which has been approved by the Supreme Court in Shyam Sunder's case (supra). In fact, it would be in the fitness of things if the Civil Courts while dismissing an application under section 5 of the Act 1963 also pass consequential orders dismissing the appeal itself, as is also mandated under section 3 of the Limitation Act 1963, as, in such a scenario, a decree of such an order would necessarily be prepared in terms of the existing provisions of the C.P.C. and this would facilitate filing of a second appeal or its hearing and decision thereon. It is ordered accordingly.
In view of the above this petition under Article 227 of the Constitution of India is dismissed as not maintainable subject, however, to the observations made hereinabove.
Based on this judgment petitioner can apply for preparation of a decree of the order impugned. In the meantime he can prefer a second appeal relying upon Rule 6-A of Order XX C.P.C. He should annex the original decree of the Trial Court to facilitate valuation etc. of the second appeal.
Let a copy of this judgment be circulated amongst District Judges in the State of U.P., who in turn shall circulate the same amongst other Judges of the District so that the practical difficulty being faced in filing second appeal as pointed out by the Members of the Bar, is removed.
The Registrar General of this Court shall take necessary steps for circulation of this judgment as aforesaid.
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(Rajan Roy, J.)"
As the issue involved is the same and in this case also order impugned merely dismisses the application under section 5 with the observation that no further proceedings are required for the reasons already mentioned in the judgment quoted hereinabove this petition is also dismissed in the same terms with liberty to the petitioner to avail the remedy of second appeal, as this petition under Article 227 of the Constitution of India is not maintainable.
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(Rajan Roy, J.) Order Date :- 19.12.2019 A.Nigam