Smt. Jagdamba vs Prem Chand Jain

1) By means of present writ petition, the petitioner seeks writ in the nature of certiorari quashing the order dated 01.12.2015, passed by First Addl. District Judge, Dehradun, in Misc. case no. 417 of 2015, Jagdamba vs Prem Chand, granting an opportunity of hearing of appeal on merits.

2) Two original suits, bearing numbers 313 of 1995 and 232 of 2001 were filed by the wife of respondent for permanent prohibitory injunction against the present petitioner. Both the suits were consolidated and decided by a common order on 30.10.2010. Both the suits were decreed. Regular civil appeal no. 94 of 2010 was filed against the judgment rendered in O.S. no. 232 of 2001. Time barred civil appeal was filed against the judgment rendered in O.S. no. 313 of 1995, which was registered as misc. case no. 798 of 2010.

3) Said misc. case was dismissed in default on 27.05.2011. Re-admission application was filed on 15.05.2015 along with delay condonation application. Such delay condonation application was dismissed on merits vide order dated 01.12.2015. Aggrieved against refusal to condone the delay, the appellant (petitioner herein) filed present writ petition, which according to learned Senior Counsel for the respondent, in not maintainable.

4) The following was observed by Hon''ble Apex Court in para 10 of the judgment rendered in the case of Shyam Sunder Sarma vs Pannalal Jaiswal and others, AIR 2005 SUPREME COURT 226. The same reads as under:

"The question was considered in extenso by a Full Bench of the Kerala High Court in Thambi vs Mathew [1987 (2) KLT 848]. Therein, after referring to the relevant decisions on the question it was held that an appeal presented out of time was nevertheless an appeal in the eye of law for all purposes and an order dismissing the appeal was a decree that could be the subject of a second appeal. It was also held that Rule 3A of Order XLI introduced by Amendment Act 104 of 1976 to the Code, did not in any way affect that principle. An appeal registered under Rule 9 of Order XLI 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, after the dismissal of an application for condoning the delay is in substance and effect a confirmation of the decree appealed against. Thus, the position that emerges on a survey of the authorities is that an appeal filed along with an application for condoning the delay in filing that appeal when dismissed on the refusal to condone the delay is nevertheless a decision in the appeal."

5) Hon''ble Allahabad High Court in para nos. 6, 7, 8, 11, 12, 13 and 14 of the judgment rendered in the case of Aruna Sahkari Awas Samiti Ltd., Agra through its Member / Authorized Agent Raju Hussain vs Prem Singh & another, [2016 (116) ALR 56] has observed thus:

"6. In Sheodan Singh vs Daryao Kunwar, AIR 1966 SC 1332, 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 Trial 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. 7. This Court in Prem Wati and another v. Munni Devi @ Minakshi and another, 2009 (74) ALR 886, 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. 8. Similar view was taken in Smt. Geeta Bala Goyal and anohter vs Kailash Chandra and others, 209 (74) ALR 405, 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. 11. 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. 12. For the reasons stated herein above, the petition is dismissed being not maintainable. 13. However, dismissal of the petition shall not preclude the applicant from approaching the appropriate court for redressal of his grievance. 14. 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."

6) Para nos. 8 to 11 and 16 of the judgment rendered by Hon''ble Allahabad High Court in the case of Smt. Geeta Bala Goyal and another vs Kailash Chandra (dead) and others, [2009 (74) ALR 405] are important in the context of deciding the controversy in hand and are being reproduced here-in-below for convenience:

"8. The Supreme Court held that an application made by a party praying to set aside or revise a decision of the Subordinate Court was an appeal within the ordinary acceptance of the term and that it was no less an appeal because it was irregular or incompetent for whatever reason.

In Mela Ram and Sons vs Commissioner of Income Tax, Punjab, Punjab CIT, AIR 1956 SC 367, the Court held -

"an order dismissing an application as barred by limitation after rejecting an application under Section 5, Limitation Act to excuse the delay in presentation was held to be one "passed on appeal" within the meaning of section 109, Civil P.C. On the principles laid down in these decision, it must be held that an appeal presented out of time is an appeal, and an order dismissing it as time- barred is one passed in appeal." 10. The Supreme Court held that an appeal presented out of time was an appeal and an order dismissing it as barred by time was an order passed on the appeal.

In Sheodan Singh vs Daryao Kunwar, AIR 1966 SC 1332, the Supreme Court held -

"We are therefore of the opinion that where a decision is given on the merits by the Trial Court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing, it must be held 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."

In view of the aforesaid, the present writ petition is not maintainable and is dismissed. It would be open to the petitioner to take such legal recourse as required under the law."

7) It is therefore, held that second appeal will lie against the rejection of application under Section 5 of Limitation Act, in regular civil appeal. Present writ petition is, therefore, not maintainable. Writ petition is, accordingly, dismissed. However, dismissal of the petition shall not preclude the applicant from approaching the appropriate court for redressal of his grievances.