Madhya Pradesh High Court
Ramesh vs Laxmibai on 1 March, 2021
Author: Vivek Rusia
Bench: Vivek Rusia
- : 1 :-
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
(SINGLE BENCH: HON'BLE Mr. JUSTICE VIVEK RUSIA)
M.P. No. 3930/2019
(Ramesh and others V/s. Laxmi Bai)
Date: 01.03.2021:
Shri Nitin Phadke, learned counsel for the Petitioners,
Heard on the question of admission and interim relief.
****************************
The petitioners (hereinafter referred to as plaintiffs) have filed the present petition being aggrieved by the order dated 27.04.2019 passed by II Additional District Judge, Jaora, District Ratlam.
Facts of the case in short as under:
The plaintiffs had filed Civil Suit for declaration of title and partitioned of joint family property. Vide judgment dated 24.01.2009 the suit had been decreed by Second Civil Judge Class-II Jaora District Ratlam ascertaining 1/7-1/7 share of plaintiffs as well as defendants and directed that they are entitled to partition through the court. Defendant No.1 was restrained to get a mutation in his name.
Being aggrieved by the aforesaid judgment and decree the defendants filed a first appeal in the year 2013 alongwith an application for condonation of delay under Section 5 of the Limitation Act. The presents plaintiffs filed the reply to the aforesaid application on 29.05.2013.
The appeal is pending since 2013 in the court of II Additional District Judge, Ratlam. On 24.02.2019, it came to the notice of the learned Additional District Judge that an application under Section 5 of the Limitation Act has not been decided so far. Both the parties have agreed to first argue on the aforesaid application. The arguments were heard and kept for
- : 2 :-
order on 27.04.2019. Vide order dated 27.04.2019, the learned II Additional District Judge has decided that the application filed under Section 5 of the Limitation Act would be decided along with the first appeal on merit. Since then the appeal, as well as the application for condonation of the delay, are pending.
Now the plaintiffs have filed the present petition challenging the order dated 24.04.2019, on the ground that learned Additional District Judge has committed an error of law while keeping an application under Section 5 of Limitation Act, along with the appeal for consideration while final hearing the First Appeal on merit, which is not permissible in view of the law laid down by the Apex Court as well as this Court in the case of State of Bihar & Ors Arjun Prasad Rajak 2009 SAR (Civil) 334, Shiv Kumar Vs. Padum 2001 (1) MPHT 186, Chhitu Vs. Mathuralal and Ors AIR 1981 M.P. 13.
I have perused the documents filed along with the petition. It is correct that the respondents/appellants who filed an appeal did agree on 22.04.2019 for deciding the application under Section 5 of the Limitation Act before deciding the appeal on merit and arguments were advanced, hence no notice is libel to be issued to the respondents in this writ petition.
The First Appeal is pending since 2013-14 hence same is liable to be decided expeditiously. After hearing learned counsel for the parties learned the Additional District Judge concluded that the appeal had already registered for final argument therefore, it would be proper to decide the appeal on merit as well as an application under Section 5 of Limitation Act. In the case of State of M.P. Vs. Pradeep Kumar 2000 (7) SCC 372, the Apex Court has held that the object of enacting Rule 3-A of Order 41 of the Civil Procedure Code seems to be two-fold. The first is,
- : 3 :-
to inform the appellant himself that appeal is time-barred and it would not be entertained unless it is accompanied by an application explaining the delay. The second is, to communicate to the respondent a message that it may not be necessary for him to get ready to meet the grounds taken up in the memorandum of appeal because the court has to deal with the application for condonation of delay as a condition precedent. In case of S.V. Matha Prasad Vs. Lalchand Meghraj and Others (2007) 14 SCC 772, the Supreme Court of India has held that by the impugned judgment, the Division Bench of High Court has not only condoned the delay but taken a decision on the merit as well and in the considered opinion second exercise was not justified as the only issue before the Division Bench was the question of limitation, accordingly, the judgment was set aside to the extent that it goes on to the merits of the controversy but maintained it in so far that it deals with the question of limitation. Therefore, in view of the above, the learned Additional District Judge is required to decide first the application under Section 5 of Limitation Act and if it court condones the delay then there would not be an impediment in deciding the appeal on merit and if the court dismisses the application for condonation of the delay then First Appeal it seld goes without adverting on merit.
The order-sheets of the First Appeal reflects that it has not been admitted but only registered for final argument and as per order 41 Rule 3 A sub-Rule 2 of CPC , if the Court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under rule 11 or rule 13 and
- : 4 :-
thereafter if the Court does not dismiss the appeal under Rule 11 of Order 43, then shall summon the record of the trial court and issue notice to the defendant.
Keeping in view the fact that First Appeal is not competent before the Court as the same was not filed in time and also keeping in view the amended provision and law laid down by the Hon'ble Apex Court and this though there is no specific bar which restrains the appellate Court to hear and decide the appeal alongwith the application for condonation of delay. But it is the other way round provisions puts a bar on the appellate Court to decide the appeal unless the application for condonation of delay is decided in favour of the appellant.
In view of this petition stand allowed and the impugned order passed by the learned Additional District Judge is set aside with a direction to the learned Appellate Court to decide the application filed under Section 5 of Limitation Act first before proceeding further in the pending First Appeal.
( VIVEK RUSIA ) JUDGE praveen PRAVEEN KUMAR NAYAK 2021.03.02 10:55:45 +05'30'