Jammu & Kashmir High Court - Srinagar Bench
Abdul Aziz Mir vs Suhail Nabi & Ors on 31 October, 2018
Bench: Ali Mohammad Magrey, Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
LPAC No. 259/2017
IA No. 01/2017
Date of Order: 31st of October, 2018
Abdul Aziz Mir
Vs.
Suhail Nabi & Ors.
Coram:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge.
Hon'ble Mr Justice Sanjeev Kumar, Judge.
Appearance:
For the Appellant(s): Mr J. H. Reshi, Advocate.
For the Respondent(s): Mr M. A. Qayoom, Advocate.
i) Whether approved for reporting in Yes/No
Law Journals etc.:
ii) Whether approved for publication
in Press: Yes/No
Per Magrey: J (Oral);
01. This Letters Patent Appeal is directed against the order dated 12th of October, 2017, passed by the learned single Judge in COD No. 105/2015, whereby the condonation of delay application filed by the appellant seeking condonation of delay in filing the civil first appeal against the judgment and decree dated 24th of June, 1997, passed by the Court of learned Additional District Judge at Srinagar, has been rejected.
LPAC No. 259 of 2017 IA No.01/2017 Page 1 of 902. The brief facts leading to the filing of the instant appeal, put in a nutshell, are that the appellant, being aggrieved of the judgment and decree dated 24th of June, 1997, passed by the Court of learned Additional District Judge, Srinagar, challenged the same, in an appeal, before the learned single Bench of this Court. The appeal, being time barred, compelled the appellant to file an application seeking condonation of delay in filing the same. The learned single Bench, on appreciation of the facts and after hearing the learned counsel for the parties, vide judgment dated 12th of October, 2017, has rejected condonation of delay application in filing the appeal.
03. Mr Reshi, the learned counsel, appearing on behalf of the appellant, submits that the order under challenge is bad in law as the remedies availed by the appellant were not alternate remedies available to him under the law, but the same are concurrent and independent in nature and, therefore, he was free to avail these remedies, simultaneously, and that the doctrine of election was not applicable to the facts of this case. The learned counsel further submits that the learned single Bench, in terms of the impugned order, has only decided the application seeking condonation of delay in filing the appeal and, therefore, there is no question of merger of the decision of the condonation of delay application and that of the main appeal. The learned counsel has also proceeded to state that the order impugned, dismissing the condonation of delay application, does not come within the purview of Section 100(A) of the Civil Procedure Code. In support of his arguments, the learned counsel has made reference to various judicial pronouncements ruling the roost on the subject.
LPAC No. 259 of 2017 IA No.01/2017 Page 2 of 904. Per Contra, Mr Qayoom, the learned counsel, appearing on behalf of the respondents, while raising a preliminary objection with regard to the maintainability of the instant letters patent appeal, submits that, in fact, is a decision on the appeal as well because the view of the learned single Bench rejecting the condonation of delay in filing the appeal amounts to confirming the judgment and decree of the civil Court and that the judgment and decree of the civil Court merges with the decision of the single Bench in the condonation of delay application. The learned counsel further submits that the point in issue is squarely covered by the judicial dictums of the Hon'ble Apex Court and various High Courts of the country.
05. We have heard the learned counsel for the parties, perused the record and considered the matter.
06. Without going into the merits of the case, it shall be appropriate to first consider the preliminary objection with reference to maintainability of the instant appeal under Letters Patent clause, as raised before us by the learned counsel for the respondents viz., whether, in view of the mandate of Section 100-A of the Civil Procedure Code, the order passed by the learned Single Bench, impugned herein this appeal, is or is not an appealable one under the Letters Patent clause.
07. Section 100-A of the Civil Procedure Code reads as under:
"100-A No further appeal in certain cases: - Notwithstanding anything contained in any Letters Patent of the High Court or in any instrument having the force of law or in any other law for the time being in force in the State, where any appeal from an original or appellate decree or order is heard and decided by a single Judge of LPAC No. 259 of 2017 IA No.01/2017 Page 3 of 9 a High Court, no further appeal shall lie from the judgment and decree of such Single Judge."
08. While going through the Section aforesaid of the Civil Procedure Code, what comes to the fore is that there is no scope in filing a letters patent appeal against a decision of a Single Judge of a High Court rendered on any appeal arising out of an original or appellate decree or order.
09. The only question that arises for consideration, at this stage, is whether the order passed by the learned single Bench in the condonation of delay application amounts to an order which falls within the contours of Section 100(A) and, in our opinion, the answer to this question is in the affirmative. It is so because an appeal filed alongwith an application seeking condonation of delay in filing that appeal, when dismissed on the refusal to condone the delay, is nevertheless a decision in the appeal. The conclusion, so arrived by us, is strengthened by the law laid down by a constitutional Bench of the Hon'ble Supreme Court in case titled "Shyam Sunder Sarma v. Pannalal Jaiswal & Ors.", reported in "AIR 2005 Supreme Court 226", wherein at paragraph Nos. 12 to 15, their Lordships have observed as under:
"11. Learned counsel for the appellant relied on the Full Bench decision of the Calcutta High Court in Mamuda Khateen and others vs. Beniyan Bibi and others ( AIR 1976 Calcutta 415 ) to contend that an order rejecting a time barred memorandum of appeal consequent upon refusal to condone the delay in filing that appeal was neither a decree nor an appellable order. On going through the said decision it is seen that though the Full Bench referred to the divergent views on that question in the Calcutta High Court prior to the rendering of the decision of this Court in Messrs Mela Ram and Sons (supra) had not considered the decisions of this Court in Raja Kulkarni (supra) and in Messrs Mela Ram and Sons (supra), in coming to that conclusion. In fact it is seen that there was no discussion on that aspect as such, though there was a reference to the conflict of views in the decisions earlier rendered by the Calcutta High Court. Since the ratio of that decision LPAC No. 259 of 2017 IA No.01/2017 Page 4 of 9 runs counter to the principle laid down by this Court in Messrs Mela Ram and Sons (supra), obviously the same could not be accepted as laying down a correct law.
12. Learned counsel placed reliance on the decision in Ratansingh vs. Vijaysingh and others [(2001) 1 SCC 469 ] rendered by two learned Judges of this Court and pointed out that it was held therein that dismissal of an application for condonation of delay would not amount to a decree and, therefore, dismissal of an appeal as time barred was also not a decree. That decision was rendered in the context of Article 136 of the Limitation Act, 1963 and in the light of the departure made from the previous position obtaining under Article 182 of the Limitation Act, 1908. But we must point out with respect that the decisions of this Court in Messrs Mela Ram and Sons and Sheodan Singh (supra) were not brought to the notice of their Lordships. The principle laid down by a three Judge Bench of this Court in M/s Mela Ram and Sons (supra) and that stated in Sheodan Singh (supra) was, thus, not noticed and the view expressed by the two Judge Bench, cannot be accepted as laying down the correct law on the question. Of course, their Lordships have stated that they were aware that some decisions of the High Courts have taken the view that even rejecting an appeal on the ground that it was presented out of time is a decree within the definition of a decree obtaining in the Code. Thereafter noticing the decision of the Calcutta High Court above referred to, their Lordships in conclusion apparently agree with the decision of the Calcutta High Court. Though the decision of the Privy Council in Nagendra Nath Dey vs. Suresh Chandra Dey (supra) was referred to, it was not applied on the ground that it was based on Article 182 of the Limitation Act, 1908, and there was a departure in the legal position in view of Article 136 of the Limitation Act, 1963. But with respect, we must point out that the decision really conflicts with the ratio of the decision in Messrs Mela Ram and Sons and Sheodan Singh (supra) and another decision of this Court rendered by two learned Judges in Rani Choudhury Vs. Lt.-Col. Suraj Jit Choudhury [(1982) 2 SCC 596]. In Essar Constructions vs. N.P. Rama Krishna Reddy [(2000) 6 SCC 94) brought to our notice two other learned Judges of this Court, left open the question. Hence, reliance placed on that decision is of no avail to the appellant.
13. In the context of the explanation to Order IX Rule 13 of the Code, the question was squarely considered by this Court in Rani Choudhury's case (supra). The High Court, in our view, has rightly held that the decision of this case is directly covered by that decision. Therein, the plaintiff, the wife, obtained an ex parte decree for divorce against the husband, the defendant. The husband preferred an appeal in the High Court against the decree and also made an application under Section 5 of the Limitation Act for condoning the delay in filing that appeal. The High Court dismissed the appeal as being time barred. The husband, the defendant, then filed a petition under Order IX Rule 13 of the Code for setting aside the ex parte decree along with an application under Section 5 of the Limitation Act. The trial court dismissed the application holding that no sufficient cause was made out for condoning the delay in filing the petition under Order IX Rule 13 of the Code. The husband filed a Civil Miscellaneous Appeal in the High Court challenging the LPAC No. 259 of 2017 IA No.01/2017 Page 5 of 9 said order of the trial court. The High Court took the view that the explanation to Order IX Rule 13 of the Code did not create a bar to the maintainability of the petition under that Rule as the appeal against the ex parte decree had been dismissed not on merits but on the ground of limitation by not accepting the application for condonation of delay which meant that no appeal was preferred in the eye of law. This view of the High Court was challenged in appeal before this Court. It was argued that the High Court has misunderstood the scope and ambit of the explanation to Order IX Rule 13 of the Code and that in the circumstances, the High Court should have held that the petition under Order IX Rule 13 of the Codewould not lie. This Court accepted that contention. This Court held that where there has been an appeal against an ex parte decree and the appeal has not been withdrawn by the appellant and had been disposed of on any ground, the application under Order IX Rule 13 of the Code would not lie and should not be entertained. Hence, even though the appeal against the ex parte decree was disposed of on the ground of limitation and not on merits, the explanation to Order IX Rule 13 of the Code was attracted and hence no petition under Order IX Rule 13 of the Code would lie. On the scope of the explanation, it was stated that the disposal of the appeal as contemplated in the explanation was not intended to mean or imply a disposal on merits resulting in the merger of the decree of the trial court with a decree, if any, of the appellate court on the disposal of the appeal. The disposal of the appeal may be on any ground and though the withdrawal of an appeal by an appellant is also to be considered a disposal of the appeal, the same has been expressly exempted by the explanation. It was also observed that the legislative intent incorporated in the explanation to Order IX Rule 13 of the Codewas to confine the defendant to a single course of action and to discourage the prolonging of the litigation on the ex parte decree, namely, by preferring an application to the trial court under Order IX Rule 13 of the Code for setting aside the decree and by filing an appeal to a superior court against it. If he did not withdraw the appeal filed by him or allowed the appeal to be disposed of on any other ground, he was denied the right to apply under Order IX Rule 13 of the Code. The Court also clarified that by the introduction of the explanation, the area of operation of the doctrine of merger was enormously extended. By virtue of the explanation, the disposal of the appeal on any ground whatever, apart from its withdrawal, constituted sufficient reason for bringing the ban into operation. In the light of this, it was held that though in that case the appeal filed by the husband against the ex parte decree was dismissed on the ground of it being barred by limitation, it was a disposal of the appeal and the petition under Order IX Rule 13 of the Code was hit by the explanation. In P. Kiran Kumar vs. A.S. Khadar and others [(2002) 5 SCC 161] this Court followed the decision in Rani Choudhury (supra) and held that the dismissal of the appeal against an ex parte decree as barred by limitation, prevented the trial court which passed the ex parte decree, from exercising its power under Order IX Rule 13 of the Code in view of the explanation.
14. It was sought to be argued on behalf of the appellant that the above decisions were distinguishable in view of the fact that in those cases, the appeals against the decrees were filed first, followed by the petitions under Order IX Rule 13 of the Code, whereas in the present case the petition under LPAC No. 259 of 2017 IA No.01/2017 Page 6 of 9 Order IX Rule 13 of the Code was filed first and only during its pendency, an appeal against the decree was filed, with an application for condoning the delay in filing it. In our view, this would not make any difference to the principle enunciated by this Court in Rani Choudhury's case (supra). Moreover, on the day the trial court was called upon to consider and dispose of the petition under Order IX Rule 13 of the Code, an appeal, though belated, had been filed against the decree by the appellant and the same had been dismissed as barred by limitation and had not been withdrawn. It is not possible to accept the argument that the application of the explanation should be confined to cases where an appeal had already been filed against the ex parte decree and it should be held not to apply to cases where an appeal is subsequently filed. The acceptance of such an argument, in our view, would tend to defeat the legislative scheme as noticed in Rani Choudhury's case (supra). In the light of the object sought to be achieved by the introduction of the explanation to Order IX Rule 13, such an argument cannot also be accepted.
15. We are not impressed by the argument of learned counsel for the appellant that the decision in Rani Choudhury's case (supra) requires reconsideration. On going through the said decision in the light of the objects and reasons for the introduction of the explanation to Order IX Rule 13 and the concept of an appeal as indicated by the Privy Council and this Court in the decisions already cited, the argument that an appeal which is dismissed for default or as barred by limitation because of the dismissal of the application for condoning the delay in filing the same, should be treated on a par with the non-filing of an appeal or the withdrawal of an appeal, cannot be accepted. The argument that since there is no merger of the decree of the trial court in that of the appellate court in a case of this nature and consequently the explanation should not be applied, cannot also be accepted in the context of what this Court has earlier stated and what we have noticed above."
10. Again, the High Court of Orissa, while dealing with a similar issue, in case titled "D. Tarini Patro & Ors. v. M. Jagannath Rao", reported as "AIR 2018 ORISSA 53", held as under:
"3. The sole question that hinges for consideration of this Court is as to whether the order dated 17.04.2017 is a decree?
4. The subject matter of dispute is no more res integra. In the case of Fakir Mishra v. Biswanath Mishra & Others, 2015 (II) CLR- 599, this Court held as follows:
"3. A Full Bench of this Court, in the case of Ainthu Charan Parida v. Sitaram jayanarayan Firm represented by Ramnibas and another, 58 (1984) CLT 248 (F.B) : (AIR 1984 Ori 230), held that an order rejecting a memorandum of appeal LPAC No. 259 of 2017 IA No.01/2017 Page 7 of 9 or dismissing an appeal following the rejection of an application under Section 5 of the Limitation Act for condonation of delay in preferring the appeal is not a decree within the meaning of Section 2(2) of the Code of Civil Procedure. But then, the Apex Court, in the case of Shyam Sunder Sarma v. Pannalal Jaiswal and others, AIR 2005 SC 226, held that an appeal filed along with an application for condoning the delay in filing that appeal when dismissed on the refusal to condone the delay is nevertheless a decision in the appeal.
4. In Shyam Sunder Sarma (Supra), the view of the Full Bench of the Calcutta High Court, in the case of Mamuda Khateen and others v. Beniyan Bibi and others, AIR 1976 Calcutta 415, that an order rejecting a time barred memorandum of appeal consequent upon refusal to condone the delay in filing that appeal was neither a decree nor an appellable order, was held to be not laying down a correct law.
5. Further, the Full Bench decision of the Kerela High Court, in the case of thambi v. Mathew, 1987 (20 KLT 848: (AIR 1988 SC 48), that an appeal presented out of time was nevertheless an appeal in the eye of law for all puroses and an order dismissing the appeal was a decree that could be the subject of a second appeal, was approved by the Apex Court.
Be it noted that the aforesaid decision of the Calcutta High Court was approved by the Full Bench of the Orissa high Court in the case of Ainthu Charan Parida (supra).
6. In view of the authoritative pronouncement of the Apex Court in the case of Shyam Sunder Sarma (supra), the Full Bench decision of this Court in t6he case of Ainthu Charan parida (supra) has been impiedly overruled, the same being contrary to the enunciation of law laid down by the Apex Court.
7. Thus the logical sequitur of the analysis made in the preceding paragraphs is that an appeal filed along with an application for condonation of delay in filing that appeal when dismissed on refusal to condone the delay is a decree within the meaning of Section 2(2) of the Code of Civil Procedure. In the ultimate analysis the petition fails, as the same is not maintainable."
5. In view of the authoritative pronouncements of this Court in the case of Fakir Mihsra (supra), the inescapable conclusion is that impugned order is a decree. It is open to the petitioners to challenge the same in a Second Appeal. Accordingly, the petitioner is dismissed."
[ LPAC No. 259 of 2017 IA No.01/2017 Page 8 of 9
11. For all that has been said and done above, coupled with the enunciations of law, as discussed hereinabove, we are of the view that this appeal is not maintainable. It being so, the same is dismissed, alongwith all connected IA(s). However, the appellant shall be liberty to work out his remedy, as may be available to him under law.
(Sanjeev Kumar) (Ali Mohammad Magrey)
Judge Judge
Srinagar
October 31st, 2018
"TAHIR"
LPAC No. 259 of 2017
IA No.01/2017 Page 9 of 9