Court No. - 33
Case :- MATTERS UNDER ARTICLE 227 No. - 7920 of 2018 Petitioner :- Sobeer Singh Respondent :- Kaloo Ram Counsel for Petitioner :- Chandrajeet
Hon'ble Manoj Misra,J.
The instant petition has been filed under Article 227 of the Constitution of India challenging the order dated 11.04.2016 passed by the Civil Judge (Senior Division) 1st Hapur in Original Suit No. 406 of 2012 as also the order dated 17.07.2018 passed by the District Judge Hapur in Misc. Case No. 34 of 2016.
The order dated 11.04.2016, which has been challenged, is in fact judgment and decree passed by the trial court in Suit No. 406 of 2012 and therefore the said order can only be challenged in a regular appeal. The other order, which has been challenged, is an order by which the application of the petitioner to condone the delay, in presenting the regular appeal, has been rejected. Once the application under Section 5 of the Limitation Act in presenting the regular appeal is rejected, the appeal would stand automatically dismissed as barred by limitation.
Sri Srijan Mehrotra, who has appeared on behalf of the plaintiff-respondent, has raised a preliminary objection against the maintainability of this petition under Article 227 of the Constitution of India by stating that on rejection of the application under Section 5 of the Limitation Act, the appeal would stand dismissed as barred by limitation and therefore the petitiner could avail the remedy of second appeal under Section 100 C.P.C. He has placed reliance on a decision of this Court in the case of Smt. Geeta Bala Goyal and Anr. vs. Kailash Chandra and Ors.; reported in 2009(74) ALR 405.
In the aforesaid judgment it has been held, after noticing the decisions of the Apex Court in the case of Shyam Sundar Sharma v. Panna Lal Jaiswal and Ors.: (2005) 1 SCC 436 and Full Bench of the Kerala High Court in the case of Thambi v. Mathew and Anr.: AIR 1988 Kerala 48= (1987) 2 KLT 848(FB), which has been approved by the Apex Court in Shyam Sundar Sarma's case (supra), that the order rejecting an application under Section 5 of the Limitation Act or an application under Order XLI, Rule 3(A) of the C.P.C. is in fact an order on an appeal and therefore appealable under Section 100 C.P.C.
Learned counsel for the petitioner has not been able to site any binding precedent which may enable the Court to take a different view than what has been taken by this Court in the case of Smt. Geeta Bala Goyal and Anr. (supra).
In view of the above, this petition is dismissed as not maintainable with liberty to the petitioner to file second appeal under Section 100 of the Code of Civil Procedure.
Order Date :- 30.10.2018 Pkb/