Jit Singh and Another vs Sarwan Singh and Others

B. Rai, J.—The facts are given in detail in the judgments of both the Courts below. Therefore, it is not necessary to recount the same. Suffice it to say, that the suit filed by Sarwan Singh, Plaintiff for specific performance of an agreement of sale, dated June 1, 1975, in respect of land measuring 11 kanals, 11 marlas situated within the revenue limits of Village Handiya fully described in the head note of the plaint, for Rs. 18,046.88, was decreed only for the recovery of Rs. 10,000/- with costs against defendants 1 and 2, vide judgment and decree, dated January 4,''1978 passed by the trial Court. It was held that though specific performance of contract of sale in question was not possible, yet the plaintiff was entitled to recover Rs. 10,000/- from defendants 1 and 2. Aggrieved by the decision of the trial Court, the defendants filed an appeal on February" 10, 1978. They also moved an application on November 29, 1978 u/s 5 of the Limitation Act, for condoning the delay in presentation of the appeal.

It was pleaded that the judgment was announced by the trial Court on January 4, 1978 and on the same day, they moved an application for getting copies of the judgment and decree. The copies were prepared on January 10, 1978 and delivered to them on January 25, 1978. They further pleaded that they were illiterate and after obtaining the copies, they consulted their counsel who informed that they would get seven days further period of limitation, Since the appellants were under the impression that they had the limitation to file the appeal till February 10, 1978, they instituted the appeal accordingly, in the Court of Additional District Judge, Barnala, with a prayer that the delay of one day in the presentation of the appeal being of the basis of bona-fide mistake, be condoned.

The application was contested by the respondents pleading, inter alia, that no application u/s 5 of the Limitation Act was presented along with the appeal and it was only after the arguments had started that the present application was made; that there was a note of the Reader of the Court that the appeal was timebarred and still no application u/s 5 of the Limitation Act was moved and a false version had been put up by them. The respondents further pleaded that the appellants were in the habit of making false statement. According to them, previously the appeal had been filed as an indigent person and a false affidavit was filed and it was only after the report of the Collector was received, the court-fee was paid; that the counsel engaged by the appellants was a senior counsel of long-standing and had vast experience of appeal work and it could not be expected of such a senior counsel that he gave a wrong advice. They pleaded that there being no sufficient grounds for condonation of delay in presentation of the appeal, the application and appeal be dismissed. Following Issue was framed.

"Whether there are sufficient grounds for condoning the delay in presentation of the appeal? C.P. Applicants."

Both the parties led evidence. Ultimately, the application for condonation of delay u/s 5 of the Limitation Act was rejected and the appeal was dismissed as time-barred by the lower appellate Court, vide its judgment, dated May 3, 1979.

Hence, this second appeal at the instance of defendant-appellants.

Before the learned counsel for the appellants started arguing the case, a preliminary objection was raised by the learned counsel for the respondents that order, dated May 3, 1979 whereby the application u/s 5 of the Limitation Act was rejected, does not culminate into a decree even if the appeal was dismissed as time-barred. Appeal lies against a decree and the order rejecting the application for condonation of delay is not appealable even under Order XLH, Code of Civil Procedure, nor this order is appealable as envisaged under Order XLIII of the Code. The appeal being incompetent deserves to be dismissed. It was further argued that even if the appeal is treated as a revision for which also 90 days period of limitation, has since elapsed and on that score too, it deserves to be dismissed.

In order to rebut the argument, the learned counsel for the appellants made a serious attempt to controvert the same urging that the appeal in the instant case was not decided on merits but was dismissed on the ground of limitation. That tantamounts to rejection of memorandum of appeal. He argued that the order of rejection of plaint on the ground of limitation under Order VII, Rule 11 of the Code of Civil Procedure, read with Section 2(2) of the Code amounts to a decree and when Rule 11 of Order VII is read with Section 107(2) of the Code, the order of rejection of memorandum of appeal will also amount to a decree, it was also argued that the appeal filed before the learned Additional District Judge having been dismissed as barred by time and decree having been drawn, second appeal is competent. It was argued that the judgment was pronounced by the trial Court on January 4, 1978 and application for obtaining certified copies was made on the same very day on which the judgment was pronounced. Therefore, the appellant-applicants before the first appellate Court were entitled to the deduction of two days, one for the day on which the judgment was pronounced and one for the day on which the application was made for obtaining the certified copies. It this way, the applicants were entitled to the benefit of counting the day of the judgment twice over and the appeal filed by them was within limitation. In support of his contention, he relied upon Kashmir Singh v. The Municipality Karnal 1983(1) AILLR 640.

I have given my thoughtful consideration to the contentions raised by the learned counsel for the parties. Similar arguments which have been raised before me were raised before a Division bench of this court in Des Raj Vs. Om Parkash and Another, The learned Judge did not agree with the view projected and came to the conclusion that it is not open to the Court to extend the meaning of the word "decree" and include in it other kind of orders though they are similar to the orders expressly included in the definition. Consequently the order of the rejection of the memorandum of appeal does not amount to rejection of the plaint and thus does not fall within the definition of the word "decree". If the Legislature intended that such an order should be treated as a decree, it would have provided so in the definition, and it was not found possible to read in the definition of the word "decree", the order of rejection of memorandum of appeal.

It was further held that Section 5 of the Limitation Act provides that an appeal may be admitted after the prescribed period if the appellant satisfies the Court that he had sufficient cause for not preferring it within limitation. From the language of the section it is clear that the appeal cannot be admitted to hearing unless the Court finds that there were sufficient grounds for not filing the appeal within time. Rule 9 of Order 41 relates to registry of memorandum of appeal and Rule 11 of the same Order to power to dismiss appeal without serving notice on the respondent or his pleader. A conjoint reading of both the rules shows that the Court can dismiss an appeal without issuing notice to the other side if the memorandum of appeal is admitted for consideration. However, if the appeal cannot be admitted for consideration for the reasons that it is barred by limitation, the question of adjudication by the Court on merits under Rule 11 cannot arise. Thus if the appeal is dismissed on the ground of limitation, the question of adjudication by the Court on merits cannot be said to have arisen. Therefore, such an order cannot be said to be a ''decree''.

In para 9 of the report, it was stated by the learned Judges that "It is clear from Sub-rule (i) of Rule 3A that an appellant at the time of filing an appeal, which is barred by limitation, is required to file an application giving the reasons that he had sufficient cause for not filing the appeal within the period of limitation. It is incumbent upon the Court to decide the application before it proceeds to decide the appeal on merits. The Court can dismiss the application without issuing notice or after issuing notice to the respondent. In case the Court accepts the application, only then it can proceed under Rule 11 or Rule 13 of Order 41. Therefore, if the application for condoning the delay in filing the appeal is dismissed, the question of consideration under Rule 11 does not arise. In such a situation it cannot be held that the order of dismissal amounts to affirmance of the decree of the trial Court and, therefore, is a decree within the meaning of Section 2(2) of the Code. In order to support this conclusion, the learned Judges relied upon a division Bench decision of Chhitu Vs. Mathuralal and Others,

In view of the decision in Des Raj''s case (supra) the decision in Kashmir Singh''s case (supra) need not be adverted to by this Court. The submission that if the appeal is not competent, it may be treated as a revision is not tenable. The scope of revision is limited one. Provisions of Section 115 of the CPC can be pressed into service when the High Court is to correct the errors of jurisdiction committed by the subordinate Courts and the High Court cannot interfere with the findings of fact arrived at by the subordinate Courts and substitute its own decision after reappraisal of the evidence which has already been done by the subordinate Courts. I find, no case is made out to invoke the revisional jurisdiction.

For the reasons recorded, the appeal fails and is dismissed. No costs.