Research › Search › Judgment

Madhya Pradesh High Court · body

2004 DIGILAW 428 (MP)

Shaligram v. Nagar Palika

2004-05-06

A.K.GOHIL, S.S.JHA

body2004
Judgment ( 1. ) THIS revision has been referred by Single Bench to the Larger Bench on the following question of law:- "whether a revision against an order rejecting the application under Section 5 of the Limitation Act and consequential dismissal of the appeal is revisable or not ? ( 2. ) AN appeal was preferred under Section 96 of the Civil Procedure Code challenging the judgment passed by 4th Additional District Judge, Vidisha. Appeal was barred by limitation, therefore, an application under Section 5 of the Limitation Act was filed. Appellate Court has dismissed the application under Section 5 of the Limitation Act holding therein that the appellant has failed to explain each days delay and no sufficient cause is made out for condoning the delay and application under Section 5 of the Limitation Act was dismissed and after dismissal of the application appeal is dismissed as barred by limitation. ( 3. ) QUESTION requires to be determined in the case is whether the order passed by the Appellate Court is revisable ? ( 4. ) IN the case of Ratansingh v. Vijaysingh and Ors. , AIR 2001 SC 279 , it is held that rejection of application for condonation of delay and consequent dismissal of appeal as time barred is not a decree. Thus, order so passed by the Appellate Court dismissing the application for condoning the delay as barred by limitation is not appealable as decree but this order will be an order under the Code of Civil Procedure. ( 5. ) ORDER dismissing the application for condoning delay which results into dismissal of appeal is not an appealable under Section 104 of the Code of Civil Procedure as no appeal against such order is provided under Order XLIII Rule 1 of the Code of Civil Procedure. Thus, the order will be an order under Section 105 of the Code of Civil Procedure. Section 115 of the Code of Civil Procedure as amended w. e. f. 1st July, 2002 by amending Act of 1999 provides that no revision shall be entertained unless if Revisional Courts interferes with the order passed by the Trial Court will amount to final adjudication of the dispute. ( 6. ) ADMITTEDLY even if revision is entertained and allowed will not finally adjudicate the appeal before First Appellate Court and appeal will require hearing. ( 7. ( 6. ) ADMITTEDLY even if revision is entertained and allowed will not finally adjudicate the appeal before First Appellate Court and appeal will require hearing. ( 7. ) COUNSEL for the appellant submitted that in fact there is no appeal before the First Appellate Court. Before appeal could be considered by the First Appellate Court, application has been rejected. Counsel for the appellant invited attention to the provisions of Order XLI Rule 3-A of the Code of Civil Procedure and submitted that unless delay in filing appeal is condoned, there is no appeal before the Trial Court and only application was filed before the Trial Court. Therefore, if the application is allowed, then the application under Order XLI Rule 3-A will be finally disposed of. ( 8. ) COUNSEL for the respondents submitted that impugned order is not revisable and he submitted that even if revision is allowed, then also it will not finally adjudicate the appeal pending before the Trial Court. Number of judgments have been referred by the Counsel for parties. Counsel for the petitioners has referred to the judgment in the case of Shiv Shakti Co-operative Housing Society v. Swaraj Developers and Ors. ( AIR 2003 SC 2434 ), The Commissioner Hubli-Dharwad Municipal Corporation v. Shrishail and Ors. (AIR 2004 Karnataka 75), Surajmal and Anr. v. Sunderlal and Ors. [2003 (3) M. P. H. T. 158], Chandrakant Govind Sutar v. M. K. Associates and Anr. (2003 AIHC 1743 ). For the subject-matter of controversy the judgment in the case of Simplex Engineering and Foundry Works Ltd. v. Bhubaneswar Pattnaik (AIR 2003 Orissa 149) has been referred by the Counsel for the petitioner. He also invited attention to the judgment in the case of Twentieth Century Fox Film Corporation v. NRI Film Production Associates (P) Ltd. (AIR 2003 Karnataka 148) and in the case of Madhavan v. Narayana Das (AIR 2003 Kerala 103 ). ( 9. ) THE main question which is required to be answered is that whether the order in favour of party applying for revision in the Court shall give finality to suit or other proceedings. If answer is in affirmation, then application for revision is maintainable otherwise not. ( 10. ( 9. ) THE main question which is required to be answered is that whether the order in favour of party applying for revision in the Court shall give finality to suit or other proceedings. If answer is in affirmation, then application for revision is maintainable otherwise not. ( 10. ) ORDER XLI Rule 3-A (1) has been inserted in CPC to put an end to the practice of admitting an appeal subject to the decision on the question of limitation at the time of final adjudication. Scope of the provision inserted by amending Act of 1976 in order to prescribe the procedure for securing the final determination of the question as to limitation even at the stage of admission of the appeal. Condonation of delay is not a matter of right. ( 11. ) QUESTION of dismissal of an application was considered by this Court in the case of Bal Kishan v. Tulsa Bai ( AIR 1987 MP 120 ) and in another case it is held that when the Appellate Court dismisses the appeal under Order XLI Rule 3-A read with Section 5 of Limitation Act, consequent appeal is not competent, even if decree is drawn up after the dismissal. Thus, intention of legislature is to decide the application for limitation at the final stage before proceeding further to decide the appeal on merits. Legislative mandate is that the appeal should not be heard unless Court is satisfied that sufficient cause is made out for condoning the delay in filing the appeal. Question of limitation can not be adjourned till the final decision of appeal. Thus, consequence of rejection of an application results into dismissal of appeal as barred by limitation. Therefore, the contention of Counsel for the appellant that the revision will be maintainable as the application under Order XLI Rule 3-A is dismissed and the appeal is not heard on merits. Division Bench of this Court in the case of Ajitsingh and Anr. v. Ghagwanlal Master and Ors. ( AIR 1989 MP 302 ) has held that the definition of Section 2 (2) of the Code and does not control new Rule 3-A of Order XLI, CPC, which prescribes the Code of Procedure for preferring appeal. The procedure contemplates that the question of limitation shall be decided first and also "finally" if the presentation of the appeal is found to be beyond the period of limitation. The procedure contemplates that the question of limitation shall be decided first and also "finally" if the presentation of the appeal is found to be beyond the period of limitation. There would be no justification in the Court to deal in any manner with "rights of parties" agitated in the appeal as Sub-rule (3) debars even stay of execution of the impugned decree. Therefore, there will be no jurisdiction with the Court even to draw up any "decree" in as much as the Court can not "decide to hear the appeal", albeit on merits, after "finally" deciding against the appellant the question of limitation. The provision of Rule 3-A (2) mandates that Courts of appeal shall not proceed to deal with the appeal under Rule 11 or 13 of Order XLI 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 or 100, Merely because a "decree" passed in the Appellate Court, in which an appeal is presented against such decree can not 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 and considering the scope of Rule 3-A it is held that the order rejecting the application under Section 5 of Limitation Act read with Order XLI Rule 3-A, CPC is not appealable as no decree is drawn. ( 12. ) THEREFORE, contention of Counsel for the appellant that revision will lie against the rejection of application under Order XLI Rule 3-A, CPC has no force. Even if application is allowed, then the order will not finally adjudicate the appeal. ( 13. ) IF the order is interim in nature and does not dispose of the lis, the revision application is not maintainable. As per proviso to Section 115 after amendment by Act No. 46of 1999 w. e. f. 1-7-1992, interim orders are no longer revisable under Section 115. ( 14. ) IN this case the order passed will not dispose of the appeal finally. Even if the application is allowed, then also appeal will not be disposed of finally. In the said facts of the case and in the light of judgment in the case of Shiv Shakti Co-op. Housing Society v. Swaraj Developers, (2003) 6 SCC 659 , revision is not maintainable. Even if the application is allowed, then also appeal will not be disposed of finally. In the said facts of the case and in the light of judgment in the case of Shiv Shakti Co-op. Housing Society v. Swaraj Developers, (2003) 6 SCC 659 , revision is not maintainable. In the case of Surya Dev Rai v. Ram Chander Rai (2003) 6 SCC 675 , it is held that the amendment in the Code of Civil Procedure can not and does not in any manner affect the said jurisdiction under Articles 226 and 227 of the Constitution of India. The power of the High Court under Articles 226 and 227 of the Constitution is always in addition to the revisional jurisdiction conferred on it. The curtailment of revisional jurisdiction of the High Court under Section 115, CPC by Amendment Act 46 of 1999 neither takes away the constitutional jurisdiction of the High Court to issue a writ in the nature of certiorari to Civil Court, nor the power of superintendence conferred on the High Court under Article 227 of the Constitution is taken away or whittled down. The power exists, untrammeled by the amendment in Section 115, CPC, and is available to be exercised subject to rules of self-discipline and practice which are well settled. We therefore in the light of the aforesaid judgment we hold that remedy of revision is not available to the petitioner, however, he has remedy under Article 226/227 of the Constitution of India for exercising powers of superintendence before this Court. Application under Section 115 of the Code of Civil Procedure is not maintainable. Contention of Counsel for the petitioner that this revision be converted into petition under Article 227 can not be accepted as this question has been decided in the case of Vishesh Kumar v. Shanti Prasad, AIR 1980 SC 892 . ( 15. ) IN the result reference is answered that the order rejecting application for condonation of delay in filing the appeal is not revisable. However, party can not be left remediless, as party has remedy to challenge the order under Article 227 of the Constitution of India under power of superintendence. Reference is answered accordingly. Consequently, revision is dismissed as not maintainable with liberty to the petitioner to avail remedy available to him under law.