Riyaz Ahmed Bhat vs Abdul Majid Bhat

Syed Bashir-Ud-Din, J.—Respondents filed a suit for eviction in respect of shop situated at Batmaloo Srinagar and for recovery of arrears

of rent at against the revision petitioner-defendant. The suit was decree in ex-parte on 30.5.2002 by 2nd Additional Munsiff Srinagar. Against the

judgment and decree defendant filed an appeal alongwith an application for condonation of delay as the appeal was delayed beyond prescribed

period. The 3rd Addl; District & Session Judge dismissed the application for condonation of delay and consequently the appeal, by his order

dated 17.6.2003. This order of dismissal is under challenge in this revision petition.

Plaintiff-respondents counsel has raised a preliminary objection to the maintainability of the revision on the ground that with the dismissal of the

appeal by file appellate court the Judgment and decree of the trial court has merged with the order of the appellate court. Against the order of

dismissal of the appeal 2nd appeal would lie on grounds specified thereto u/s 100 CPC but no revision would lie against the order.

Counsel for the revision petitioner submits that the judgment and decree of the trial court has not merged with the order of dismissal of the

application for condonation of delay of the appellate court, in as much as, by dismissal of the application while holding the appeal time barred the

appeal is not upheld on merits therefore the question of merger does not arise. Against the order of dismissal of an application for condonation of

delay in filing the appeal by the appellate court revision is competent as no appeal is provided therefor. In this case as the decree is not reversed or

modified or confirmed on merits it cannot be said that the decision of the trial court has merged with the decision of appellate court. Even after the

dismissal of the application for condonation in preferring the appeal beyond prescribed time the decision of the trial court is subsisting and

operative. The Doctrine of merger does not apply to a case of the present nature wherein appellant court in exercise of its discretionary jurisdiction

has rejected the prayer for condonation of delay.

Kunhayammed and Others Vs. State of Kerala and Another, , in terms dealing with the question of doctrine of merger in the context of exercise

of special jurisdiction of Supreme court under Article 136 of the Constitution of India, is not applicable to this case.

Rejection of application for condonation of delay and consequent dismissal of time barred appeal is not a decree, in as much as, the trappings of

a decree as defined in Section 2(2) of CPC are not attached to such decision.

In Rattan Singh v. Vijay Singh, AIR 2001 SC 279 it is observed:-

In order that decision of a Court should become a decree there must be adjudication in a suit and such adjudication must have determined the

rights of the parties with regard to all or any of the matters in controversy in the suit and such determination must be of a conclusive nature. If those

parameters are to be applied then rejection of application for condonation of delay will not amount to a decree. Consequently, dismissal of an

appeal as time barred is also not a decree. We are aware that some decisions of the High Courts have taken the view that even rejecting an appeal

on the ground that it was presented out of time is a decree within the meaning of the said definition. We are also aware of the contrary decisions

rendered by High Courts on the same point......... We have no doubt that the decisions rendered by the High Courts holding the contrary view do

not lay down the correct principle of law.

Coming to the merits of the revision petition, parties are heard.

There is no dispute that the appeal against the trial court decree is time barred. The delay is about 30 days. The application for condonation of

delay is dismissed on the ground that the reveision petitioner failed to exercise due care and diligence to file appeal, when he was although aware

and had the knowledge, about the suit proceedings and of decree and judgment. He has grossly failed to make out sufficient cause for condonation

of delay. The revision petitioner's contention is that during pendency of the suit parties settled the matter at P/s Batmaloo. Petitioner paid the

outstanding rent of Rs. 9100/- on 24.4.2001 and the plaintiff respondents under took to withdraw the suit. Petitioner has placed on record

Photostat copies of two memos in Urdu and English to evidence the payment of arrears of rent and settlement of the lis. However, on reading

between the lines it is seen that apart from the question of admissibility of these memos, on their face they disclose that Rs. 19100/- is stated to

have been given as arrears of rent to plaintiffs Ab. Majid Bhat on 22.4.2001 and not Rs. 9100/- as stated in the revision petition. Besides the Co-

plaintiff Ab. Hamid Bhat is not a party to either of the two memos. The memo in urdu shows over writing in respect of the figures regarding the

actual payment of arrears of rent. Obviously these circumstances coupled with the fact that the understanding, is started to have been arrived at P/s

without any explanation as to the circumstances in which the concerned parties had to reach the understanding in Police Station, makes the whole

transaction doubtful and there is a big question mark as to the genuineness of the so-called memos/receipts.

Contextually the appellate court also took into consideration the circumstances that after 22.4.01, the date on the memo, revision petitioner-

defendant appeared before trial court through counsel on 11.5.01 to seek an adjournment for filing written statement without mentioning anything

of the sort that the other party had agreed to withdraw the suit, as is being given out now at the appellate stage. The appellate court on scrutiny of

the record and on evaluation and consideration of circumstances and facts on record came to the conclusion that the petitioner has not made out

sufficient cause"" to qualify for condonation of delay. Due care and deligence is wanting on his part. Therefore, the appellate court in its discretion

rejected the application for condonation. Notwithstanding the liberal approach of the courts in the matter of condonation of delay, yet it cannot be

at the cost of defeating the provisions of Section 5 of the limitation of the Act. It is imperative that delay has to be explained

satisfactorily/sufficiency of cause is to be made out.

In P.K. Ramachandran Vs. State of Kerala and Another, it is observed:-

Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribe and the courts have

no power to extend the period of limitation on equitable grounds"".

In absence of any reasonable or satisfactory explanation for the delay it cannot be said that the court below has failed to record its satisfaction

in this case.

Looking at the case even from the angle of substantial Justice being preferred over technical justice on avoidance of pedantic approach, it

cannot be said that the impugned order suffers from any jurisdictional error or is marred by any legal infirmity. 11The exercise of discretion is not

shown vitiated. It is not even a case of failure of justice.

In the aforesaid view of the matter, revision petition is dismissed. Inform court below of this order and send back the record. Disposed of.