JUDGMENT :

Arun R. Pedneker, J.

1. Heard.

2. The present second appeals are referred to larger bench as per Rule 8 and 9 of Chapter I of the Bombay High Court Appellate Side Rules, 1960, to decide the following question:-

“Whether an order rejecting an application for condonation of delay in filing an appeal under Section 96 of CPC, is a decree within the meaning of Section 2(2) of CPC, making it appealable under Section 100 of CPC ?”

3. The brief facts giving rise to this reference can be summarized as under:-

A] In all these matters, the judgments of the trial court have been challenged in the first appeal before the Appellate Court with applications for condonation of delay in filing first appeals. The applications for condonation of delay in filing the appeals are dismissed and consequently the first appeals are also not registered or stand dismissed without registration. The orders of the First Appellate Court dismissing the delay condonation applications and consequently the dismissal of the first appeals without registration are challenged in the present second appeals and the issue in all these matters is, whether a second appeal is maintainable against an order dismissing an application for condonation of delay in filing the first appeal.

B] The reason for the reference is that there is a doubt expressed by the Hon’ble Single Judge (Gauri Godse, J.) with regard to the view taken by the earlier judgments of this court holding that the second appeal is maintainable against such an order. The doubt is expressed since the Hon’ble Single Judge was of the view that the order rejecting an application for condonation of delay in preferring appeal under Section 96 of the the Code of Civil Procedure, 1908 (CPC) is not a decree and that a second appeal would lie only against a decree passed by the first appellate court. The Hon’ble Single Judge has adverted to the various decisions of this court namely in the case of Chandrakant Somnath Melge Vs. Balasaheb Somnath Melge, 2017 (3) Mh.L.J. 668 and in the case of Radhika Sanjay Salunkhe Vs. Dada Vitthal Salunkhe and others, Second Appeal No.149 of 2017. The judgments of other High Courts were also cited before the learned Single Judge to submit that second appeal is maintainable, viz. in the case of Suresh Hadapad Vs. Jayashree Kore and another, 21.12.2020 in Regular Second Appeal No.200360 of 2017, at the High Court of Karnataka at Kalaburgi Bench and in case of Maniram Vs. Mst. Fuleshwar, 25.09.1995 in Second Appeal No.16 of 1987, at the High Court of Madhya Pradesh.

C] The learned Single Judge has also considered the judgments of the Hon’ble Supreme Court in Mela Ram and Sons Vs. Commissioner of Income Tax, Punjab, 1956 (1) Mh.L.J. 175, and in the case of Shyam Sunder Sarma Vs. Pannalal Jaiswal and others, 2005(4) Bom.C.R. 839.

D] The learned Single Judge had appointed Mr. Shailesh S. Brahme (now Judge of this High Court) as an amicus curiae in the matter. It was submitted by the amicus curiae that the second appeal has a definite and restricted jurisdiction as set out in Section 100 of CPC and there is no room for reading into the text of Section 100 of CPC, other than what is provided. The appellate jurisdiction under Section 100 of CPC do not contemplate any jurisdiction for entertaining the order which is passed by the first appellate court, without touching to the merits referable to the pleadings, evidence and findings recorded by the trial court on merits of the case and it was submitted before the court that the substantial question of law is a condition precedent for entertaining second appeal and that there can be hardly any question of law in a case of rejection of an application for condonation of delay and appreciation of evidence is beyond the scope of Section 100 of CPC. An order passed rejecting an application for condonation of delay will be only on facts and, thus, the reasons for condonation of delay can be examined only on appreciation of facts as pleaded and documen