[2023:RJ-JD:32475]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Civil Second Appeal No. 93/2023

Rohit Kumar S/o Ratanlal, Aged About 40 Years, By Caste

Agarwal, Resident Of Near Hisariya Market, Ward No. 21,

Hanumangarh Town, Tehsil And District Hanumangarh. (Raj.)

----Appellant

Versus

Anju Devi W/o Pawan Kumar, By Caste Agarwal, Resident Of

Near Hisariya Marke, Ward No. 21, Hanumangarh Town, Tehsil

And District Hanumangarh. (Raj.)

----Respondent

For Appellant(s)

:

Mr. J. Gehlot

For Respondent(s)

:

Mr. Rajat Dave

HON'BLE MS. JUSTICE REKHA BORANA

Judgment

04/10/2023

1.

The present second appeal has been preferred against the

order dated 04.05.2023 passed by the Additional District Judge

No.2, Hanumangarh in Civil Appeal No.07/23 whereby the

application under Section 5 of the Limitation Act as filed by the

appellant has been rejected. As a consequence thereof, the

regular first appeal also stood dismissed.

2.

The application under Section 5 of the Limitation Act has

been rejected by the first Appellate Court on the sole ground that

the same was not filed along with the memorandum of appeal.

The first Appellate Court while relying upon the judgments of

Hon’ble Bombay High Court in the case of Khatunbi & Ors vs.

Aminabai, 2007 (1) CCC 169 (BOMBAY) and Hon’ble Delhi

High Court in the case of RC Chawdhary vs. M/s Prestige

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(2 of 4)

[CSA-93/2023]

Finance and Chit Fund Co.(P) Ltd., 1997 (1) CCC 698

(DELHI) held that, if the application under Section 5 of the

Limitation Act has not been filed along with memorandum of

appeal, the appeal itself loses its existence and hence, the same

cannot be entertained/admitted.

3.

Counsel for the appellant submitted that the conclusion as

arrived by the first appellate Court while relying on the two above

mentioned judgments is totally erroneous being in contravention

to the Full Bench judgment of this Court in the case of Dilip Bhai

Gajrota & Ors. vs. Contractor Lime Gotan, RLR 1995 (1)

page 602.

4.

The following substantial question of law arises in the

present appeal :

Whether the rejection of the application under

Section 5 of the Limitation Act by the first appellate

Court solely on the ground of the same having not

been filed along with the memorandum of appeal is

erroneous and contrary to law?

5.

In view of the submissions made, Admit.

As the respondent is represented by the counsel who has put

in appearance in caveat, notices need not be issued.

6.

With the consent of both the counsels, the appeal is heard

finally at this stage itself on the above substantial question of law

as framed.

7.

In Dilip Bhai (supra), the Full Bench of this Court was

considering the following two questions which were referred to it

for decision:-

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(3 of 4)

[CSA-93/2023]

“1. Whether, in view of Rules 132 and 134, a time barred

appeal when filed, must accompany along with memo of

appeal, an application under Section 5 of the Limitation

Act, 1963 along with affidavit or condonation application

can be filed later on, if so, what is the effect of the

relevant rules?

2. Whether the provision of O.41 Rule 3-A C.P.C. is

mandatory and the application under Section 5 of the

Limitation Act, 1963 for the condonation of delay in filing

afterwards?”

The Hon’ble Full Bench decided the above two questions as

under:-

“(1) An appeal which is apparently barred by limitation

can be filed without an application under section 5 of the

Limitation Act, 1963 and the provisions of Rules 132 and

134 requiring filing of such application are directory in

nature.

(2) The provisions of Order 41 Rule 3-A of the Code of

Civil Procedure are not mandatory and, therefore, filing of

an application under Section 5 of the Limitation Act, 1963

for condonation of delay in filing the appeal at a later

stage is permissible.”

8.

In view of the above settled position of law, the question