Tengari Koeri @ Motilal and Others vs Jhagru Koeri and Others

Anwar Ahmad, J.—This appeal by the defendants is directed against the order of the then District Judge of Shahabad, who, by his composite order dated the 21st August, 1963, rejected the appellants'' application u/s 5 of the Indian Limitation Act for the condonation of the delay in filing the appeal before him and dismissed the appeal as barred by time.

This appeal was placed before U. N. Sinha, J., who, by his order dated the 29th March 1968, referred the case to a Division Bench, as the maintainability of this appeal was challenged before his Lordship and no authoritative decision of this Court was on the point. It has, therefore, to be decided whether a second appeal would lie from the order of the District Judge. It cannot be disputed that the order dismissing the appeal as barred by time conclusively determined the matter in controversy between the parties so far as the court of the District Judge was concerned. "Decree" has been defined in Section 2(2) of the CPC as:

the formal expression of an adjudication which so far as regards the court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit.

In this view of the matter, it cannot be disputed that the order of the District Judge has the force of a decree. I am fortified m this view of mine by a number of decisions to which I propose to make a short reference immediately. One of the earliest decisions on the point in a Bench decision of the Allahabad High Court reported in (Gulab Rai v. Mangli Lal ILR (1885) All 42 the judgment whereof was delivered by Mohamood, J. It was held therein that an order rejecting a memorandum of appeal as berred by limitation was a decree within the meaning of Section 2 of the Code of Civil Procedure. It was, therefore, appealable and not open to revision by the High Court u/s 622 (now Section 115) of the Code. A Bench decision of the Bombay High Court in (Raghunath Gopal v. Nilu Nathaji ILR (1885) 9Bom 452 also held that an appeal lay against the order of the District Judge dismissing the appeal as too late. The same question arose for consideration before a Division Bench of the Calcutta High Court in Ganga Das Dey v. Ramjoy Deg and Ors. ILR (1885) Cal 30 and it was held that, if an appeal was dismissed as time-barred, a second appeal would lie to the High Court. The same view was taken by a Bench of the Madras High Court in its decision in Saminatha Ayyar v. Venkatambba Ayyar ILR (1903) Mad 21. In that case, their Lordships, relying on the three decisions referred to above and on Ayyamna v. Nagabhooshanam ILR 16 Mad 285 and Zamindar of Tuni v. Bannayya ILR 22 Mad 155 overruled the preliminary objection taken by the respondent that no second appeal lay as the order of the court of appeal below was not a decree as defined in Section 2 of the Code of Civil Procedure, on the ground that the balance of authorities was against the view that no second appeal lay. This view, was reiterated by the Calcutta High Court in one of its Bench decisions in ( Adarpriya Choudhrani Vs. Ramprotap Agarwalla, ). Pollock, J., sitting singly, in AIR 1938 322 (Nagpur) following the decision referred to earlier, also held that such an order had the force of a decree and a second appeal was maintainable against it. A reference may also be made to the decision of Meredith, J. (as he then was) in Gajadhar Bhagat and Others Vs. Moti Chand Bhagat, . The following lines of his Lordship''s judgment may be usefully quoted:

It is well settled that the rejection of a memorandum of appeal as being out of time does amount to a decree and is appealable. I have been referred to two rulings on this point; Rakhal Chandra Ghosh and Others Vs. Ashutosh Ghosh and Others and Adarpriya Choudhrani Vs. Ramprotap Agarwalla, . As against this, Debt Charan Lal v. Mehdi Hussain 1 PLJ 485 has been cited for the respondent; but it is noteworthy that though in that case their Lordships held that where the court below has carefully exercised its discretion on an application u/s 5 and had held that no ground for extension existed, the High Court would not interfere in appeal, yet upon the case before them their Lordships proceeded to entertain the appeal and to allow it. That ruling, therefore, is also authority for the proposition that an appeal against such a rejection of the memorandum is maintainable and the order is a decree. It is clear that an appeal does lie.

I am in respectful agreement with the view expressed by his Lordship and the interpretation put by him on the Bench decision of this Court in Debi Charan Lal''s 1 PLJ 485 case.

The aforesaid decisions make it abundantly clear that a second appeal is maintainable from the order of the District Judge rejecting the memorandum of appeal as barred by time.

So far as the merits of the appeal are concerned, it may be stated that the appeal before the District Judge was filed five days beyond the statutory period of limitation. It was incumbent on the appellants to give a satisfactory explanation for each day''s delay (vide Smt. Ujjam Bai Vs. State of Uttar Pradesh, and this they did not care to do. The learned District Judge has refused to condone the delay in filing the appeal before him on cogent grounds. It is now settled by a long string of authorities that, where a court, after considering all the circumstances of the case, has come to the conclusion that sufficient cause has or has not been established in filing an appeal within time, the High Court in second appeal will not interfere (vide Debi Charan Lal''s 1 PLJ 485 case. He has rightly held that the reason given in the petition u/s 5 of the Indian Limitation Act for the condonation of the delay is vague. The District Judge also took into consideration the facts that no evidence was adduced on behalf of the appellants to substantiate the facts stated by them in their petition u/s 5 of the Limitation Act and that the petition was not supported by an affidavit. In this state of affairs, the refusal of the learned District Judge to condone the delay was perfectly justified and cannot be interfered with.

In the result, the appeal is dismissed, but there will be no order as to costs.