Madhya Pradesh High Court
Ajitsingh And Anr. vs Bhagwanlal Master And Ors. on 30 July, 1988
Equivalent citations: AIR1989MP302, AIR 1989 MADHYA PRADESH 302, (1989) MPLJ 6
JUDGMENT Dr. T.N. Singh, J.
1. A learned single Judge of this Court has referred the following question of law for opinion of this Bench :
"Whether the present appeal, as a second appeal, lies to the High Court or not, in the particular circumstances of the case as set out in paras 6 and 7 above."
2. In view of the terms of reference, it has become necessary for us to quote also paras 6 and 7 of the order of reference:
"6. Now, in the present appeal the facts are: the learned appellate Judge dismissed the appellants' application, purporting to be under Order 41, Rule 3A, C. P. Code read with Sec. 5 of the Limitation Act and then made the following observations in the order sheet:--
"Since the appeal by the order of I.A. No. 2, has been held to have been filed after prescribed period of limitation, the same is also dismissed automatically."
7. No decree was ordered to be drawn up and when the appellant made an application for drawing up of a decree the Court rejected the application after observing that there was no necessity for framing a decree."
3. What is also stated in the order makes it clear that the learned single Judge had made the reference for the reason expressed precisely in para 5 that there were two views of Single Benches of this Court which wereof conflicting nature and it was not possible to reconcile them. He considered the decisions cited at the Bar in support of the two views, one propounded in the case of Balkishan v. Tulsabai, AIR 1987 Madh Pra 120 and the other, in a short-noted decision of this Court in Munsisingh v. Tularam, (1980) 2 MPWN 128 mainly, besides other decisions of this Court noted in the order. Munshisingh (supra), it was noted, found support in Panditram v. Atmaram, 1961 Jab LJ (SN) 199 and Lalitlal Purohit v. Ghanshyam, 1965 MPLJ(SN) 98 and the decision in Sonba Keshao v. Rodrigues, AIR 1938 Nag 322. Balkishan (supra) had the support of the decision of another Single Bench of this court in the case of Chhitu v. Mathuralal, AIR 1981 Madh Pra 13. It was also noted that in support of the view in Balkishan and Chhitu, decisions of other Courts were cited, viz., Deshraj v. Om Prakash, AIR 1986 Punj and Har 3 and the Full Bench decision in the case of Mamuda Khatin, AIR 1976 Cal 415.
4. True, Munshisingh (1980-2 MPWN 128) (supra) was cited before the Bench deciding Balkishan (AIR 1987 Madh Pra 120) (supra); but it was distinguished. We propose to look first, therefore, at Munshisingh. Indeed, there is little to be read in the short-note except to observe that the view of the learned single Judge in that case was founded on the premise that a decree had been drawn up when the application under Section 5 of the Limitation Act for condonation of delay in filing the appeal was rejected and the appeal was dismissed as time-barred. What else can be read is only that the learned single Judge relied on a decision of Tripura Judicial Commissioner's Court in the case of. Mangal Ballav v. Smt. Nihar, AIR 1959 Tripura. 6 for the view expressed, referring also to the decision in the cases of Banwarilal v. Neelakantham, AIR 1965 Orissa 102 and Bhagirathi Padhan v. Achuta Padhan, AIR 1965 Orissa 193; while distinguishing the decisions reported in 1979 Jab LJ (SN) 41, Lakhan v. Laxminath and in AIR 1979 Raj 76, Hajari Ram v. Mantri Khadi Mandir.
5. Let it, however, be made clear that in Munshisingh (1980-2 MPWN 128) (supra), Civil Revision was filed and that was held not maintainable on the ground that the order challenged, was an appealable, order and, as earlier observed, for the sole reason that a decree had been drawn up. There was no occasion for the Court to consider at all the effect and implications of Rule 3A inserted in Order 41 by C.P.C. Amendment Act, 1976, w.e. from 1-2-1977. That is what appears clearly on the face of the order reproduced in the concerned law report. In the Tripura decision relied on, there was obviously no occasion in 1959 to refer to or consider new Rule 3A. In that case, it was held that order of dismissal of appeal as time-barred, was "decree" as defined in Section 2(2) and it was, therefore, appealable.
6. In the two Orissa cases of 1965, referred in Munshisingh(1980-2 MPWN 128) the same view was taken and the same reason was given. Importance was attached in Banwarilal (AIR 1965 Orissa 102) (supra) to the definition of the term "decree" in Section 2(2) in taking the view that the order of dismissal of the Memorandum on the ground of limitation must be regarded as a "decree", because the "decree" of the. Court of first instance was confirmed by that order and rights of the parties with regard to matters in controversy were finally determined. The later case, Bhagirathi (AIR 1965 Orissa 193) (supra), silently approved the earlier view. Of the other three decisions referred in Munshisingh (supra) the decision in Jagannath Prasad, (1977) 2 MPWN379, might have been miscited inasmuch as that that was a case under Hindu Marriage Act, wherein it was held that the application for dissolution of marriage could not be dismissed on the ground of limitation. The other two cases, Lakhan (1979 Jab LJ (SN) 41) and Hajari Ram (AIR 1979 Raj 76) (supra) were on the scope of Section 5 of the Limitation Act.
7. In this matter, before the learned single Judge, other decisions were cited to buttress Munshisingh's view. Reference was made to Section 96, C.P.C. in Panditram, 1961 Jab LJ (SN) 199 (supra) to take the view that an order dismissing appeal on the ground of limitation amounted to decree and the order was, therefore, appealable as a "decree". The same view was expressed in Lalitlal Purohit (1965 MPLJ (SN) 98) (supra). Somba Keshav (AIR 1938 Nag 122) (supra) was considered in Balkishan (AIR 1987 Madh Pra 120) (supra), but we may still point out that nothing else but the definition of Section 2(2), C.P.C. was 7 considered in that case.
8. It is crystal clear that Munshisingh's view (1980 2 MPLJN 128) and other decisions of that group are founded on a simple and single consideration flowing from the definition of the term "decree" in Section 2(2) or its use in Section 96, C.P.C. Not only Sonba Keshav, (AIR 1938 Nag 322) (supra) which was not cited in Munshisingh's case (supra), both Orissa cases and the Tripura case were of pre-amendment era and in none of those cases, the impact of new Rule 3A of Order 41, C.P.C. came to be considered On the other hand, in Balkishan, (AIR 1987 Madh Pra 120) an effort was made to harmonise Section 2(2) and Order 41, Rule 3-A, C.P.C. Be it also mentioned in this connection that the Orissa cases above referred must be deemed overruled by a recent Full Bench decision of that Court in Ainthu v. Sitaram, AIR 1984 Orissa 230 and that was noted in Balkihan.
9. We may now examine the Balkishan, (AIR 1987 Madh Pra 120) (supra) view and analyse the foundation thereof. It was held that merely because there existed some order captioned "decree", drawn up even in the form of decree, that would not make such an order a "decree" unless the requirement of Section 2(2), C.P.C. were satisfied. It was also held that the bar of limitation was a threshold bar to be invoked even suo motu by Court under Section 3 of the Limitation Act and that bar would operate against final and conclusive determination of "rights of parties with regard to all or any of the matters in controversy in the suit "and unless that happened a "decree"
would not come into being. When an appeal is dismissed, it was further held, deciding only the question of limitation and not deciding any matter finally and conclusively the decision would not amount to a "decree"
and drawing up a formal "decree" would not change this position. A Division Bench decision of this Court in Bisandas, AIR 1959 Madh Pra 34 and another decision in Amsingh v. Jethmal, AIR 1957 Raj 173, it was observed, supported the propositions. Support for the view taken was also derived from Chhitu, (AIR 1981 Madh Pra 13) (supra) and Full Bench decision of Orissa High Court in Ainthu, (AIR 1984 Orissa 230) (supra).
Reliance was also placed on Deshraj, (AIR 1986 Punj and Har 3) (supra) and (AIR 1976 Cal 415) Mamuda Khatin (supra) decided respectively by Punjab and Haryana High Court and Calcutta High Court
10. In the premises aforesaid, we are of the opinion that Munshisingh (1980-2 MPWN 128) was rightly distinguished in Balkishan, (AIR 1987 Madh Pra 120( inasmuch as new Rule 3A of Order 41, C.P.C. was not considered in that case. As we have earlier observed, other decisions supporting the Munshisingh view having been rendered prior to the amendment of 1976, had no occasion similarly to consider Rule 3A and those are to be regarded of little or no assistance.
11. We are of the considered opinion that the new Rule 3A of Order 41 enacts in itself an exclusive provision, in derogation of the existing law. New Rule 3A has to be read as a complete code of procedure for presentation and disposal of a time barred appeal. We quote :
"3A. Application for condonation of delay.-- (1) When an appeal is preferred after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period.
(2) 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 3, as the case may be.
(3) Where an application has been made under Sub-rule (1), the Court shall not make an order for the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under Rule 11, decide to hear the appeal."
It contemplates that the question of limitation shall be decided first and also "finally" if the presentation of the appeal is found to be out of time. There would be no jurisdiction in the Court to deaf in any manner with "rights of parties" agitated in the appeal as Sub-rule (3) debars even stay of execution of the impugned decree. Indeed, there will be no jurisdiction in Court even to draw up any "decree" inasmuch as the Court cannot "decide to hear the appeal", albeit on merits, after "finally deciding against the appellant the question of limitation. Even if no formal and' final order is rendered in the appeal after decision against the appellant is rendered on the application under Section 5 of the Limitation Act, the appeal would abate automatically dying a natural death. Indeed, even when a formal order dismissing the appeal is passed in any case holding the appeal to be time-barred, that order cannot decide anything, much less determining "conclusively" in that appeal "the rights of the parties with regard to all or any of the matters in controversy in the suit" contemplated under Section 2(2), C.P.C.
12. We have no doubt that the definition clause, Section 2(2), cannot and does not, control new Rule 3A of Order 41, C.P.C. which prescribes the code of procedure for preferring appeal. The status and character of an order passed under Rule 3A has to be determined in terms of the new provision because there is no scope thereunder for substantive "rights of the parties" to be decided, for reasons aforesaid, when the question of limitation is decided against the appellant and the appeal is dismissed as time-barred. It is Section 96, C.P.C. which contemplates that "an appeal shall lie from every decree passed by any court exercising original jurisdiction to the Court authorised to hear appeal from the decisions of such Court." It is also contemplated under Section 96(1) that express provision to the contrary can be made in C.P.C. Therefore, if Rule 3A(2) mandates that courts of appeal shall not proceed to deal with the appeal under Rule 11 or 13" without "finally" deciding the question of limitation that would be an express bar and the appellate Court would be deemed not "authorised" to hear the appeal under Section 96. Merely because a "decree" passed in a suit by the court below is impugned in appeal, the appellate Court, in which an appeal is presented against such a decree cannot be said to possess jurisdiction in virtue of the presentation of the appeal to deal therewith and "authorised" to hear and dispose of the appeal. As observed in Balkishn (AIR 1987 Madh Pra 120) (supra). Section 96 itself, according to us, contemplate existence of circumstances negating right of appeal as new Rule 3A manifests that contingency.
13. The object of new Rule 3A in the general context of amendment of C.P.C. in 1976 also supports the view we have expressed. It appears clear to us that new R. 3A has implications referable directly to the contemperaneous amendment of Section 100. Therefore, the two provisions are to be read together to appreciate the object of 1977 amendment of those two provisions. The scope of a second appeal has been further curtailed by the requirement posited in Sub-sections (4) and (5) of Section 100 mandating formulation of "substantial question of law" at the time of admission of the appeal and enabling further the respondent, at the time of hearing of the appeal, "to argue that the case does not involve such question". Even when the Court exercises its power under the proviso to Sub-section (5), that power too is circumscribed by another requirement, "for reasons to be recorded". According to Sub-section (3), the appellant is required to "precisely state" in the memorandum of appeal "the substantial questions of law" involved in the appeal. We have no doubt the single and singular object of the plural requirement to discourage presentation of fruitless second appeals. Indeed, then the lower appellate Court exercises its jurisdiction to dismiss as appeal as time-barred, under new Rule 3-A it merely decides the question as to whether the appellant had "sufficient cause for not presenting the appeal" within the period prescribed by the law of limitation and that question evidently would be a pure question of facts. From that order, therefore, if a second appeal is allowed, that would tantamount to allowing deliberately the workload of the High Court to increase illogically and irrationally. Inasmuch as, there would be no occasion for the High Court in such a case to deal with any question of law. On the other hand, the High Court being debarred under Section 100 itself from dealing with pure questions of fact, and empowered merely to deal with "substantial questions of law", it would have to undertake an exercise in futility when dealing with a second appeal preferred from an order passed by lower appellate Court under Rule 3A.
14. What new Sub-section (2) of Section 100 indicates adds to the logic of our conclusion. A second appeal is allowed against "an appellate decree passed ex parte". Under Sub-rule (2) of new Rule 3A, the question of limitation has to be "finally" decided thereunder after noticing the respondent and hearing him on that question. That would not be an ex parte order. When an ex parte "decree" is passed by the lower appellate Court, that Court will be supposed to deal with the substantive rights of the parties agitated "in the suit". Evidently, only such disposal of the appeal by the lower appellate Court would attract Section 2(2). C.P.C. and an order of such nature passed in appeal by the lower appellate Court could be challenged under Section 100(2) as such an order would be an ex parte "decree" if the respondent has not been heard. We have no doubt that reading new Section 100 in its entirety conjointly with the new Rule 3-A, if is difficult to resist the conclusion that the legislature made contemporaneous changes in cognate provisions in C.P.C. to achieve the object of reducing the work-load of overburdened High Court, fulfilling, at the same lime, the cherished goal of securing a reasonably early end to endless litigation which has proved to be the bane of poverty-stricken populace of our country.
15. For the reasons aforesaid, we are of the opinion that Munshisingh, (1980-2 MPWN 129) (supra) has not decided the law correctly. We accept the view expressed in Balkishan, (AIR 19S7 Madh Pra 120) that a second appeal is not competent when the lower appellate Court has dismissed appellant's application purporting to be made under Order 41, Rule 3A, C.P.C. read with Section 5 of the Limitation Act and that the position would be same, whether or not any decree was drawn up thereafter.
16. We accordingly answer the question referred to us in the negative, holding that the instant appeal, in the circumstances mentioned in paras 6 and 7 of the order of reference is incompetent.
17. Because we have taken the view that the appeal is not maintainable, we do not see any point in directing the matter to go once again to the learned single Judge for rendering decision on any contention to be raised in the appeal on merits.
18. The appeal is accordingly dismissed as not maintainable, but there shall be no order as to costs