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2008 Supreme(All) 2711
ALLAHABAD HIGH COURT
Ran Vijai Singh
MAHENDRA DHAR DUBEY
Versus
PRASHU RAM PANDEY
Decided On : 05 December 2008
Second Appeal No. 778 of 2008
S.A.Lari, SANKATHA RAI, Santosh Kumar Mishra, V.D.OZA, Vijay Kumar Rai, Vinod Kumar Rai,
The main legal point established in the judgment is the determination of the maintainability of the Second Appeal and the direction for the appellant to file a First Appeal From Orders under Order XLIII Rule 1 (w) of the C. P. C.
Headnote:
Second Appeal - Abatement of Suit - U. P. Consolidation of Holdings Act - Section 5 (2)
Fact of the Case:
The case involved a suit for cancellation of a sale deed, application for abating the suit under section 5 (2) of U. P. Consolidation of Holdings Act, subsequent appeal and review application.
Finding of the Court:
The court found that the Second Appeal was not maintainable against the judgment and decree dated 29. 3. 2008, and directed the appellant to file a First Appeal From Orders under Order XLIII Rule 1 (w) of the C. P. C.
Issues: The issues included the maintainability of the Second Appeal, the abatement of the suit under section 5 (2) of U. P. Consolidation of Holdings Act, and the remedy available to the appellant.
Ratio Decidendi: The court determined that the Second Appeal was not maintainable against the judgment and decree dated 29. 3. 2008, and directed the appellant to file a First Appeal From Orders under Order XLIII Rule 1 (w) of the C. P. C.
Final Decision: The court disposed of the appeal and allowed the appellant to file an application for conversion of the Second Appeal into First Appeal From Orders within a week.
This Second Appeal has been filed against the judgment and decree dated 29. 3. 2008 passed by Additional District Judge, Court No. 2, Deoria in appeal No. 8 of 1976, Parashumm Pandey and others v. Mahendra Dlwr Dubey and others, and also against the judgment and decree dated 28. 5. 2008 passed by the same Court in review petition No. 6 of 2008 Parashumm Pandey and others v. Rajendra and others, by which the original suit No. 433 of 1972 has been abated under section 5 (2) of the U. P. Consolidation of Holdings Act.
2. The Stamp Reporter has raised two objections namely:-
(1) If the limitation for filing Second Appeal is counted from the date of the order of review then the appeal is well within time and if the limi tation is counted from the date of original decree passed by the Lower Appellate Court then the appeal is barred by time.
(2) The Second Appeal is not main tainable against the order passed in Review Application.
3. Sri V. D. Ojha, learned Counsel who has filed caveat on behalf of the plain tiffs respondents has also raised the same preliminary objection. In his submissions in case the appeal is treated against the order dated 28. 5. 2008 passed on the review ap plication then Second Appeal is not main tainable and the remedy is to file miscella neous appeal under Order XLIII Rule 1 (w) of the Code of Civil Procedure (in short C. P. C.) and in case, it is treated an appeal against the judgment and decree dated 29. 3. 2008 then the appeal is barred by time. Since there is no application under section 5 of the Indian Limitation Act for condon ing the fl:lay in filing Second Appeal therefore, it should be dismissed as barred by time. He has further submitted that both the orders cannot be challenged together in one Appeal.
4. Sri Sankatha Rai, learned Counsel for the appellants has submitted before the Court that the limitation will be counted from the date of the last order passed in the review application and not from the date of original judgment dated 29. 3. 2008. In his submissions the Second Appeal is well within time and it is maintainable.
5. I have heard Sri Sankatha Rai learned Counsel for the appellants, Sri V. D. Ojha and Sri S. A. Lari, learned Counsel for the respondents.
6. This case has got a chequered history. The respondents plaintiffs have filed a suit for cancellation of the sale deed on 22. 4. 1972 before the IIIrd Additional Munsif, Deoria. In the said suit the defen dants appellants have filed an application for abating the suit under section 5 (2) of U. P. Consolidation of Holdings Act on 8. 1. 1975. The plaintiffs respondents have raised an objection that the case should not abate before the Consolidation Authority, as it is the suit for cancellation of the sale deed on voidable ground. The application of the defendants appellants was rejected by the Trial Court on 30. 5. 1975. This order has never been challenged.
7. However, later on after contest the suit was dismissed by the Trial Court on 27. 11. 1975. Aggrieved from that order the plaintiffs-respondents have filed an appeal. The appeal was also dismissed by the IVth Additional District Judge, Deoria on 20. 9. 1977.
8. It appears that the aforesaid ap peal was decided on merit in absence of the plaintiffs-respondents.
9. The plaintiffs-respondents have filed a Second Appeal challenging the judgment and decree of the Lower Appel late Court dated 20. 9. 1977 before the High Court. This appeal was numbered as Sec ond Appeal No. 2646 of 1977 and was al lowed by this Court vide judgment and order dated 28. 10. 2005 holding that in view of the explanation to Order XLI Rule 1. 7 (1) of C. P. C. , in absence of appellant Counsel the appeal could not be decided on merit. Hence the judgment and decree dated 20. 9. 1977 was set aside and the matter was remanded back to the Lower Appellate Court for deciding the case afresh.
10. After the case was remanded an application was filed by the plaintiffs-respondents under Order VI Rule 17
