Madhya Pradesh High Court
Laxmi Bai And Anr. vs Naga Ram Khilawandas on 29 June, 1992
Equivalent citations: 1993(0)MPLJ442
Author: D.M. Dharmadhikari
Bench: D.M. Dharmadhikari
ORDER D.M. Dharmadhikari, J.
1. A common order is being passed in this second Appeal No. 402 of 1988 (Ram Sahay v. Rambahoran) and Second Appeal No. 441 of 1988 (Maharani and Ors. v. Phoolrani), as a common reference has been made by the learned Single Judge, Hon. S. K. Seth, J., to resolve the conflict which has arisen due to his own dissenting opinion and the one expressed in Mehernosh Merfitie v. Paras Kumar Gangwal, C. Re. No. 63 of 80 decided on 18-6-1986, on one side and the opinion of Hon. Dr. T. N. Singh, J., at Gwalior Bench of this Court in a decision reported in Anwar v. Wahidan, AIR 1987 MP 140, on the other.
2. In regular appeals under Section 96 of the Civil Procedure Code filed by the appellants in the lower appellate Court, applications under Section 5 of the Limitation Act for extension of time in filing the appeals were filed. The first appellate Court rejected the applications for extension of time and consequently dismissed the appeals as barred by time. Against the orders dismissing the appeals, the appellants presented the present second appeals under Section 100 of the Civil Procedure Code.
3. Learned counsel appearing for the appellants in these cases do not dispute the legal position that against the order refusing to extend the period of time for filing the appeals under Section 5 of the Limitation Act and the consequent dismissal of the appeals being barred by time, the second appeal is not maintainable, because appeal is competent only against the decree and not the order. Learned counsel also does not dispute the position that in view of the local amendment in the State of M. P. to Section 115 of the Civil Procedure Code, a revision is also not maintainable against such an order, because the valuation of the claim in appeal is less than Rs. 20,000/-. The only remedy available to the aggrieved party against the order rejecting the applications under Section 5 of the Limitation Act is, therefore, to invoke writ jurisdiction of this Court under Article 227 of the Constitution of India. See :Ball Kishan and Ors. v. Tulsa Bai and Anr., AIR 1987 MP 120. Also see Ainthu Charan Purida v. Sitaram Laxminaryan Firm and Anr.. AIR 1984 Orissa 230 (F.B.)
4. The learned Single Judge, Hon. Dr. T.N. Singh. J., at Gwalior Bench in the decision of Anwar v. Wahidan (supra) took a view that an appeal or revision under Section 115 of the Civil Procedure Code filed against such an order can be allowed to be converted into a writ petition under Article 227 of the Constitution and can also be heard and disposed of by a Single Judge. The learned Single Judge, Hon. Dr. T. N. Singh, J., took a note of the decision of the Supreme Court in the case of Vishesh Kumar v. Shanti Prasad. AIR 1980 SC 892: but distinguished the same. In the order of reference made in these cases, Hon. S.K. Seth, J., has expressed a dissenting opinion. His view is that conversion of memo of revision of appeal into a writ petition is not permissible in view of the clear pronouncement of the Supreme Court in Vishesh Kumar (supra) and, in any case, the High Court Rules, framed for regulating the procedure for a writ petition under Article 227 of the Constitution of India, do not permit a Single Judge to decide a writ petition under Article 227 of the Constitution, even if entertained by him after conversion of memo of appeal or revision into a writ petition.
5. We have heard the learned counsel appearing for the appellants, who tried to support the opinion expressed by Hon. Dr. T. N. Singh, J. An alternative argument has been advanced that, in any case, the Single Judge, before whom either a memo of revision or second appeal is filed against such an order, rejecting the application under Section 5 of the Limitation Act, is competent to direct conversion of the memo of appeal or revision into a writ petition and to that extent, the jurisdiction of Single Judge cannot be questioned. Having given our due consideration to the conflicting opinions expressed by Hon. Dr. T. N. Singh, J. in the case of Anwar v. Wahidan (supra) and Hon. S. K. Seth, J. in the order of reference in these cases, we are of the opinion that the opinion expressed by Hon. Dr. T.N. Singh, J. deserves to be overruled and that of Hon. S. K. Seth, J. deserves to be confirmed. In coming to the above conclusion, we are clearly of the view that the matter is, in fact, covered by the decision of the Supreme Court in the case of Vishesh Kumar (supra) and the said case is not distinguishable for the reasons stated by observations of the Supreme Court in the case of Vishesh Kumar (supra) could not have been distinguished on the ground that therein the Supreme Court had declined only the request of remitting the revision to the High Court for its disposal as a writ petition under Article 227 of the Constitution of India. We find that the question before the Supreme Court was substantially the same as has arisen in these cases and there is clear pronouncement on the said question in the following words, which, according to us is binding on this Court : --
"It has been urged by the appellant in Vishesh Kumar v. Shanti Prasad. Civil Appeal No. 2844 of 1979 that in case this Court is of the opinion that a revision petition under Section 115, Civil Procedure Code is not maintainable, the case should be remitted to the High Court for consideration as a petition under Article 227 of the Constitution. We are unable to accept that prayer. A revision petition under Section 115 is a separate and distinct proceeding from a petition under Article 227 of the Constitution and one cannot he identified with the other."
6. Similarly the opinion of Hon. Dr. T.N. Singh, J. cannot be accepted that a Single Judge, after permitting conversion of memo of appeal or revision into a writ petition can hear and dispose of the case. Such a course is impermissible under the High Court Rules framed for disposal of a writ petition under Article 227 of the Constitution. The petition under Article 227 of the Constitution of India under the High Court Rules can only be heard and decided by a Division Bench of the Court. It is difficult to accept the view of Hon. Dr. T. N. Singh, J. that since the power under Article 227 of the Constitution can also be exercised by the High Court even suo motu. therefore, the Single Judge in a pending second appeal or civil revision, although admittedly incompetent, can exercise jurisdiction under Article 227 of the Constitution of India.
7. In conclusion, therefore, we overrule the decision of the learned Single Judge, Hon, Dr. T.N. Singh, J., reported in Anwar v. Wahidan (supra) and confirm the opinion expressed by Hon. S. K. Seth, J. in the order of reference.
8. The last question is whether the appellants are without any remedy. The apprehension expressed at the Bar is that is the conversion of second appeal is not permitted into a writ petition and a separate writ petition is filed for the same purpose, the appellants may be held guilty of laches and undue delay. In our opinion, the apprehension is without any foundation. The appellants were litigating within time throughout upto this Court. In our opinion, the right of the appellants to challenge the orders of the appellate Court rejecting their applications under Section 5 of the Limitation Act by petition under Article 227 of the Constitution of India is not, in any manner, hampered or prejudiced merely because of the long pendency of the second appeals, which we are dismissing as incompetent. We, therefore, reject these second appeals as incompetent under Section 100 of the Civil Procedure Code. We also reject the applications for conversion of memo of appeal into writ petition.
9. The second appeals are dismissed as incompetent. It is open to the appellants to prefer a writ petition under Article 227 of the Constitution of India against the impugned orders. In the circumstances, there shall be no order as to costs.