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2004 DIGILAW 337 (UTT)

Deen Dayal v. Ram Dutt Punetha

2004-12-01

PRAFULLA C.PANT

body2004
JUDGMENT Hon'ble Prafulla C. PankJ. This appeal is preferred under Section 100 of Code of Civil Procedure, 1908, and is directed against the judgment and order dated 25.8.2000 passed by Sri A.K. Saxena, the then learned I Addl. District Judge, Nainital, in Civil Appeal No. 52 of 1999, and also against the order dated 10.4.2002 passed by Sri Raj Krishnal the then learned Addl. District Judge/II Fast Track Court, Nainital, whereby he has rejected the review petition against the order passed in appeal. 2. Brief facts of the case are that plaintiff-respondents filed earlier S.C.C. Suit No. 42 of-1989;- against the defendant-appellant, in last round of litigation alleging the defendant to be tenant of the plaintiffs. The said S.C.C. Suit appears to have been decreed by the learned Trial Court on 10.5.1993 but the defendant went in revision and the revision (No-. 41/ 1993) was allowed vide order dated 21.7.1997, and the decree passed by the Judge S.C.C. was set aside. Again, in this round of litigation, in respect of the same property i.e. house no. 104 in ward no. 4 (old No. 69 of ward no. 2) situated at Tanakpur, another suit (Civil Suit No. 44/1997) is filed by the plaintiff-respondents against the defendant-appellant for ejectment and damages, alleging the defendant to be un-authorized occupant in the premises in suit. It appears that defendant-appellant moved an application paper no. 20-C before the trial court with the request to reject the plaint under Order VII Rule 11 of the Code of Civil Procedure 1908, to which the plaintiff-respondents filed objection, and after hearing the parties the learned trial court allowed the application 20-C and rejected the plaint under Order VII Rule 11 of the Code vide its order dated 7:10.1999. The plaintiff-respondents then preferred an appeal before the Lower Appellate Court which was registered as Civil Appeal No. 52/1999, and after hearing the parties the same was allowed, and the order directing rejection of plaint under Order VII Rule 11 of the Code of Civil Procedure was set aside vide impugned order dated 25.8.2000. It appears that a review . petition, which was registered as Misc. Case No. 7/2000, was filed before learned Lower Appellate Court. However after hearing the parties the same was also rejected vide order-dated 10.4.2002. Aggrieved by both the orders the present Second Appeal has been preferred by defendant. 3. It appears that a review . petition, which was registered as Misc. Case No. 7/2000, was filed before learned Lower Appellate Court. However after hearing the parties the same was also rejected vide order-dated 10.4.2002. Aggrieved by both the orders the present Second Appeal has been preferred by defendant. 3. I heard learned counsel for the parties and perused the record. 4. Learned counsel for the respondents raised a preliminary objection before this court that the appeal is not maintainable against the order passed in review petition. Order XLVII Rule 7(1) of the Code of Civil Procedure, 1908, is being quoted as under: "7. Order of rejection not appealable. Objections to order granting application.-(I) An order of the Court rejecting the application shall not be appealable; but an order granting an application may be objected to an once by an appeal from the order granting the application or in an appeal from the decree or order finally passed or made in the suit." In view of the said provisions the present appeal as against the order passed on review application is not maintainable. 5. Learned counse1for the plaintiff-respondents also drew my attention that the appeal against the order dated 25.8.2000 by which the Civil Appeal No. 52/1999 was allowed by the Learned Lower Appellate Court, is barred by time. The perusal of the record shows that the Civil Appeal No. 52/1999 was disposed of vide impugned order dated 25.8.2000. As per Article 116 of the Limitation Act, 1963, the Second Appeal could have been filed within a period of 90 days. The memo of the appeal filed before this court shows that it was filed only on 28.6.2002. Which is certainly more than one and a half years beyond period of limitation allowed. Certified copy of the said impugned order shows that application for copy was moved on 9.10.2000. The notice on the notice board regarding preparation of the copy was given on 10.10.2000 and on the same date copy was delivered. As such it is only one day, which can be• alleged to be added to the period of limitation. As such the second appeal is clearly barred by time. The notice on the notice board regarding preparation of the copy was given on 10.10.2000 and on the same date copy was delivered. As such it is only one day, which can be• alleged to be added to the period of limitation. As such the second appeal is clearly barred by time. Learned counsel for the appellant-defendant submitted before me that to do the substantial justice between the parties, the appeal can not be thrown on the technical ground and the court has ample powers to condone delay in its own motion. Had there been delay in filing the appeal of a day or two, this court would have certainly agreed to condone the delay instead 9f throwing the appeal on the technical ground but courts are supposed to act according to law and in a case where more than one and a half years delay has occurred in filing the Second appeal, it will be injustice to the other party if the provisions of Limitation Act, 1963, are ignored blindly. 6. In view of the above discussions, without expressing any opinion as to the final merits of the case between the parties pending before the trial court, this Second appeal is liable to dismissed. Accordingly, Second Appeal is dismissed. No order as to costs. Interim stay order, if any, stands vacated.