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1995 Supreme(MP) 838
1996 JLJ 328
(FULL BENCH)
U.L. Bhat, C.J., S.K. Dubey and V.K. Agarwal, JJ.
Maniram and others v. Mst. Fuleshwar and others
S.A. No. 16 of 1987; Decided on 25.9.1995.
K.M. Munshi with Y.K Munshi for appellants; A. Usmani for respondents.
Headnote:(1) Civil P.C., 1908 -- Ss. 100, 96 and 0.41 Rr. 3A (1) (2), 11(1) & (4) -first appeal dismissed as barred by limitation -- appellate Court has to draw a decree contemplated under 0.41 R. 11(4) -- against such order second appeal is maintainable -- purpose of R. 3A is to safeguard the interest of respondent.
From the provisions of sub-Rule (1) & (2) of Rule 3A, it is clear that the said provisions have been incorporated only to safeguard the interest of the respondents and provide for application for condonation of delay to be decided before proceeding to decide the appeal itself under Rule 11 or Rule 13 of Order 41 CPC so that the respondents may not be required to contest the appeal, in case the finding regarding application for condonation of delay is against the appellants and the appeal is consequently to be dismissed on that ground. However, these provisions do not contemplate dismissal of appeal itself which has to be done under Rule 11 or 13 of Order 41 CPC, after the decision on the application filed under Rule 3A of Order 41 CPC. In other words, only after the application for condonation of delay filed under Order 41 Rule: 3A or the CPC or section 5 of the Limitation Act is decided, the appeal can be disposed of and decided in terms of Order 41 Rule 11 or 13 CPC. AIR 1989 MP 302, 1992 JLJ 458, AIR 1987 MP 120 and 1995 (1) MPWN 65 and AIR 1981 MP 13 overruled. AIR 1984 Ori. 230 and AIR 1976 Cal. 415 (FB) dissented from. AIR 1956 SC 367, AIR 1932 PC 165, AIR 1954 SC 73 and AIR 1982 SC 1397 followed. AIR 1988 Ker. 48 and AIR 1921 Cal. 415 relied on. [Para 23
(2) Merger -- appeal dismissed on a preliminary point or as barred by limitation -- decree of trial Court still merges in appellate decree. [Para 24
(3) Limitation Act, 1963 -- S. 5 – first appeal dismissed as burred by limitation -- it is decree in which trial Court"s decree is merged -- second appeal maintainable against such decree. AIR 1966 SC 1332 and AIR 1982 SC 1397 followed. AIR 1988 Ker. 48 and AIR 1921 Cal. 415 relied on. [Para 25
¼1½ flfoy çfØ;k lafgrk] 1908 & /kkjk 100] 96 rFkk vk- 41 fu-3d ¼1½] ¼2½] 11¼1½ rFkk ¼4½ & çFke vihy ifjlhek oftZr ds :i esa [kkfjt & vihy U;k;ky; dks vk- 41 fu-11 ¼4½ esa vuq/;kr fMØh rS;kj djuk gksxh & ,sls vkns‘k ds fo#) f}rh; vihy pykus ;ksX; gS & fu-3d dk ç;kstu çR;FkhZ ds fgr dk j{kksik; gSA
fu;e 3d ds mifu;e ¼1½ rFkk ¼2½ ds mica/kksa ls Li"V gS fd ;g mica/k dsoy çR;FkhZx.k ds fgr dh lqj{kk ds fy, lfEefyr fd, x, gSaA buesa flfoy çfØ;k lafgrk ds vkns‘k 41 ds fu;e 11 vFkok 13 ds v/khu Lo;a vihy fofuf‘pr djus ds fy, vxzlj gksus ds iwoZ foyac dh ekQh ds fy, vkosnu ij fofuf‘p; djus dk mica/k fd;k x;k gS ftlls fd ml n‘kk esa tc foyac dh ekQh ds fy, vkosnu ij fofu‘p; djus dk mica/k fd;k x;k gS ftlls fd ml n‘kk esa tc foyac dh ekQh ds fy, vkosnu ds ckjs esa fu"d"kZ vihykFkhZ ds fo#) gksrk gS vkSj ifj.kkeLo:i vihy bl vk/kkj ij [kkfjt dh tkuk gksrh gS] çR;FkhZx.k dks vihy dk çfrjks/k ugha djuk iM+sA rFkkfi] bu mica/kksa esa Lo;a vihy [kkfjt fd;k tkuk vuq/;kr ugha gSa tks fl-ç-la- ds vkns‘k 41 ds fu;e 11 vFkok 13 ds v/khu fd;k tkuk gksrk gSA nwljs ‘‘kCnksa esa] fl-ç-la- ds vkns‘k 41 fu;e 3d ds v/khu vFkok ifjlhek vf/kfu;e dh /kkjk 5 ds v/khu foyac dh ekQh ds fy, vkosnu ij fofuf‘p; fd, tkus ds i‘pkr~ gh fl-ç-la- ds vkns‘k 41 fu-11 vFkok 13 ds fuca/kuksa ds vuqlkj vihy fuiVkbZ vkSj fofu‘pr dh tk ldrh gSA , vkb vkj 1989 e-ç- 302] 1992 ts ,y ts 458] , vkb vkj 1987 e-ç- 120 rFkk 1995¼1½ e-ç- ohDyh uksV~l 65 rFkk , vkb vkj 1981 e-ç- 13 myVs x,A , vkb vkj 1984 mM+hlk 230 rFkk , vkb vkj 1976 dy- 415 ¼iw.kZ U;k;ihB½ folEerA , vkb vkj 1956 ,l lh 367] , vkb vkj 1932 ih lh 165 , vkb vkj 1954 ,l lh 73 rFkk , vkb vkj 1982 ,l lh 1397 vuqlfjrA , vkb vkj 1988 dsjy 48 rFkk , vkb vkj 1921 dy- 415 voyafcrA ¿iSjk 23
¼2½ foy;u & vihy fdlh çkjafHkd ç‘u ij vFkok ifjlhek oftZr gksus ds :i esa [kkfjt & fopkj.k U;k;ky; dh fMØh dk rc Hkh vihyh fMØh esa foy;u gksrk gSA ¿iSjk 24
¼3½ ifjlhek vf/kfu;e] 1963 & /kkjk 5 &çFke vihy ifjlhek oftZr ds :i esa [kkfjt & ;g fMØh gS ftlesa fopkj.k U;k;ky; dh fMØh dk foy;u gks tkrk gS & ,slh fMØh ds fo#) f}rh; vihy pykus ;ksX; gSA , vkb vkj 1966 ,l lh 1332 rFkk , vkb vkj 1982 ,l lh 1397 vuqlfjrA , vkb vkj 1988 dsjy 48 rFkk , vkb vkj 1921 dy] 415 voyafcrA ¿iSjk 25
V.K. Agrawal, J. -- 1. The learned Single Judge has referred the following question to the Full Bench for decision :-
"Whether a second appeal lies to the High Court if the first appeal is dismissed as barred by limitation after rejection of the application for condonation of delay filed either u/s. 5 of the Limitation Act or under Order 41 Rule 3-A of the Civil Procedure Code ?"
2. The fact... leading to the present reference in brier are: that the appellants/plaintiffs had filed a Civil Suit No. 31-A/1980 for declaration and possession in the Court of Civil Judge, Class-II, Dhamtari, which was dismissed on 27.1.1982. The appellants thereafter filed an appeal registered as Civil Appeal No. 34-A/83 in the Court of IV Addi. Judge to the Court of District Judge, alongwith an application u/s. 5 of the Limitation Act, for condonation of delay in filing the appeal. The said application and the appeal were dismissed by the first appellate Court on 24.10.1986. Thereafter, the appellants preferred second appeal, which was admitted for hearing on the following substantial question of law :-
"Whether under the facts and circumstances of the instant case, the Court below committed jurisdictional error by not exercising its jurisdiction u/s. 5 of the Limitation Act, thereby condoning two days' delay in filing the appeal before it, notwithstanding, 'good and sufficient cause for condoning the same has been made out ?" At the time of hearing of the second appeal, a preliminary objection was raised before the learned Single Judge by the respondent that the second appeal is not maintainable, in view of the Division Bench judgments reported in AIR 1989 MP 302 (Ajit Singh v. Bhanwarlal) and 1992 JLJ 458 (Laxmi Bai v. N.K Das). It was urged on behalf of the respondents in this regard that since the application u/s. 5 of the Limitation Act for condonation of delay was rejected and, therefore, the appeal was dismissed otherwise than on merits, hence, in fact, there was no decree. Consequently, a second appeal against such a dismissal was not competent.
3. The learned Single Judge was of the view that the decision in Ajit Singh's case (supra) did not consider the effect of judgment of the Supreme Court in Melaram & sons v. Income Tax Commissioner (AIR 1956 SC 367), while in the case of Laxmi Bai (supra), the point was conceded. According to the learned Single Judge, the decision of the Division Bench in Ajit Singh's case (supra) did not consider if dismissal of the appeal as barred by limitation amounts to confirming the judgment and findings recorded by the trial Court, and that if a decision on the application for condonation of delay filed u/s. 5 of the Limitation Act was treated to be a decision confirming the findings of the trial Court, then an order under newly incorporated provision of Order 41 Rule 3-A C.P.C. would also amount to confirming judgment and findings of trial Court. Hence, the Division Bench case in Ajit Singh (supra) deserves reconsideration.
4. It is clear that Civil Appeal No. 34-A/83 preferred by the appellants against the judgment and decree passed in civil suit No. 31-A/1980 of the Court of Civil Judge, Class-II, Dhamtari was accompanied by an application under section 5 of the Limitation Act, as the appeal was barred by time by either two or three days. The said application was for condonation of delay in filing the appeal and consequently the appeal was dismissed by the first appellate Court.
5. It has been contended by the learned counsel for the appellants that the application u/s. 5 of the Limitation Act was an integral part of the appeal and, therefore, even if the said application was disallowed and consequently appeal dismissed as barred by limitation, it would amount to final adjudication of the matter between the parties and, therefore, the decree of trial Court would merge into the order passed in appeal. It is also urged that it is immaterial whether the decree was actually drawn up or not? Reference was al
