This appeal is directed against order dated 28.2.2003 passed by the Ist Addl. District Judge, Jammu whereby an application for condonation of delay filed by the Union of India under section 5 of the Limitation Act has been dismissed and consequently under Order 9 Rule 13 CPC was also dismissed being barred by time.

2. Mr. J.P. Singh, learned counsel appearing for the respondents has raised a prelimnary objection regarding maintainability of the appeal. According to him no appeal lies against an order dismissing application for condonation of delay. Such an order is not appealable either under Section 96 or Order 43 Rule 1 CPC, which specifies the appealable orders. Reliance is placed on AIR 1986 P&H 3 and 1990 KLJ 280. This contention of Mr.Singh is contested by Mr.Nanda, appearing for the appellant and he submits that rejection of an application under section 5 of the Limitation Act and consequently rejection of Order 9 Rule 13 CPC application is an appealable order under Order 43 (d).

3. I have heard the learned counsel for the parties.

An interesting issue has been raised by Mr.Singh regarding maintainability of the appeal. It is true that an order passed on an application under section 5 of the Limitation Act seeking condonation of delay is not appealable, in both the situations where the application is allowed or where it is rejected, if considered in isolation. The relevant question is that falls for consideration is what the impact of this order on the lis and the rights of the parties as alos the consequences that follow the order. The provisions of the Limitations Act only govern the question of limitation, whereas the rights of the parties are decided under other substantive laws.R ight of appeal is also governed under the provisions of the Code of Civil Procedure and not by the Limitation Act.

4. In the present case for the purpose of considering the controversy involved in this petition, section 3 and section 5 of the J&K Limitation Act are relevant.The same are accordingly re-produced:-

"3. Dismissal of suits, etc. instituted, etc. after period of limitation-Subject to provisions contained in sections 4 to 25 (inclusive) every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefore by the first schedule shall be dismissed, although limitation has been set up as a defence.

5. Extension of period of certain cases-An appeal or an application for a review of a judgemnet or for leave to appeal or an application to set aside an order of dismissal of a suit for plaintiffs default or an application to set aside a decree passed exparte in an original suit or appeal or an application to bring the heirs of a deceased party on the record or an application to set aside an order of abatement of a suit or appeal or any other application to which this section may be made applicable by or under an enactment for the time being in force may be admitted after the period of limitation prescribed therefore, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period."

5. Section 3 provides that every suit, appeal and application instituted, preferred or made after the period of limitation prescribed, therefore, shall be dismissed. Section 5 empowers the Court to entertain, an appeal and application beyond the period of limitation as prescribed under law subject to the condition that the Court is satisfied that there had been sufficient cause for not preferring an appeal or application, within the prescribed time. Section 5 is therefore, an exception to the general rule contained in Section 3. In the present case, I am not concerned with the suit where appeal or application is preferred beyond the period of limitation and no application under section 5 is preferred seeking condonation of delay, every such appeal/application is required to be dismissed under section 3 of the Act.

6. Now the question

Click Here to Read the rest of this document