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2005 DIGILAW 1631 (RAJ)

Kamal Khan v. Rahim Khan

2005-06-01

KAMAL NAYAN SHRIMAL, M.D.KAURANI, M.L.JAIN

body2005
Poorna Shanker Dashora, J.P. Mathur, Dunichand and Ashok Nath, as Interveners KAURANI, CHAIRMAN–The facts in nut shell giving rise to this reference are:– An appeal No. 44/98 was filed by Kamal Khan, Janu Khan against Rahim Khan before the Revenue Appellate Authority, Jodhpur. As the appeal was filed after 12 years of the judgment and decree dated 14.2.1986 passed by the Additional Collector, Phalodi, an application under Section 5 of the Limitation Act was also filed with the appeal for condonation of the delay in filing the appeal. The Revenue Appellate Authority did not find sufficient reasons to condone the delay in filing the appeal. As such he rejected the application filed under Section 5 of the Limitation Act, 1963 and also dismissed the appeal vide judgment and decree dated 28.8.1999. Being aggrieved of the above noted judgment and decree Kamal Khan and Janu Khan filed an appeal before the Board of Revenue for Rajasthan on 11.10.1999, which was admitted on 22.2.2001 and came up for hearing on 10.5.2001. The learned counsel appearing on behalf of the non-applicant raised preliminary objection that the appeal was not maintainable and only revision could be entertained as the appeal was dismissed by the lower Court on the point of limitation alone. The Honble Division Bench placing reliance on the judgment Chelaram vs. Manak, AIR 1997 Raj 284 held that the appeal was not entertainable as such it may be converted as revision. (2). In pursuance to the direction the case was listed for decision before the Single Bench. Honble Single Member noticed that in the cases decided by the Board of Revenue placing reliance on the judgment of Chelaram ( AIR 1997 Raj. 284 ) (supra), it has been held that revision is maintainable in cases dismissed on the ground of limitation alone and the appeal cannot be entertained whereas in the judgment decided on 10.5.2001, (reported in RRT 2005(1) page 151), delivered by the Division Bench, it has been held that the appeal is maintainable against the dismissal of a case on the ground of limitation alone after rejection of the application filed under Section 5 of the Limitation Act, 1963. (3). (3). In the opinion of the learned Judge there was apparent conflict between the judgments of different Division Benches of the Board of Revenue Rajasthan, as such he referred the case to Honble Chairman, Board of Revenue for constituting a larger bench to resolve the conflict of opinion after framing the question ``Whether an order passed rejecting an applications u/s 5 of Limitation Act, 1963 in an appeal and dismissing the appeal, is appealable as decree or such an order is revisable? The Honble Chairman has been pleased to constitute the Larger Bench. As such, the case has come up for decision before us. (4). As the question referred is of considerable importance and there are conflict of views before different High Courts, we have allowed the other Advocates besides the Advocates appearing on behalf of the parties to assist the Court. (5). The learned counsel for the applicant submitted that against the judgment and decree dated 20.8.99 his client had filed appeal which was registered as Jodhpur/Appeal/TA/Decree/257/99. It was rightly filed but the other party Rahim Khan raised a preliminary objection that as the first Appellate Court had decided the appeal on the ground of limitation alone as such appeal was not maintainable and only revision could be filed as held by Honble Rajasthan High Court in Chelaram vs. Manik, AIR 1997 Raj. 284 . The above noted argument was accepted and the appeal was converted into revision. But applicant does not support this view and submitted it should be decided as appeal on merits. (6). The learned counsel for non-applicant has urged that the judgment of the 1st Appellate Court did not decide any thing on merit. The application under Section 5 of the Limitation Act, 1963 was rejected and consequently appeal was dismissed. Drawing of the decree does not change the nature of decision and only revision is maintainable. (7). The learned intervener Shri Poorna Shanker Dashora urged that the question referred for the decision has wrongly been framed. This court has jurisdiction to correct the same and he placed reliance on RRD 1977 Page 1. His further contention is that against the order dated 28.8.99 whether appeal under Section 224 or 225 of the Rajasthan Tenancy Act, 1955 is maintainable is to be decided. This court has jurisdiction to correct the same and he placed reliance on RRD 1977 Page 1. His further contention is that against the order dated 28.8.99 whether appeal under Section 224 or 225 of the Rajasthan Tenancy Act, 1955 is maintainable is to be decided. The learned Member in his order dated 12.4.2005 himself has referred the judgment of the Honble Supreme Court reported in AIR 2005 SC 226 . He was bound by the judgment of Supreme Court and ought not to have referred the matter to larger Bench and placed reliance on Motiyan vs. State of Rajasthan, 1981 RLW 448. (8). The intervener Shri J.P. Mathur stated that the question in dispute has been finally decided by three judges bench of the Honble Supreme Court in AIR 2005 SC 226 (supra). As such the reference should have been decided according to the judgment pronounced by the Honble Supreme Court. (9). The learned intervener Shri Ashok Nath urged that appeal No. 257/99 was converted as revision TA/108/2001 by the order of division bench order dated 10.5.2001 and therefore it was listed before Single Bench. The Single Bench had no jurisdiction to refer the question to larger Bench which amounts to disagreement with the decision of Division Bench. The learned Member was bound to follow the Division Bench direction given in the same case and the Single Bench was not correct in making the reference. In support of the argument the learned intervener relied upon AIR 1961 SC 182 . (10). The learned intervener Shri Dunichand has opposed the argument advanced by intervener Shri Ashok Nath. He submitted that the judgment delivered in Bhopal Sugar Industries Ltd. ( AIR 1961 SC 182 ) (supra), does not apply to the facts of the case in hand. (11). We have given thoughtful consideration to the arguments advanced by the Advocates appearing on behalf of the parties as well as by the interverners. (12). There is no dispute on the point that the question involved in the reference has been the subject matter of controversial judgments of many High Courts. A full bench of the Calcutta High Court in Mamuda Khateen & Ors. vs. Beniyan Bibi & Ors., AIR 1976 Cal. 415 held 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 appealable order. A full bench of the Calcutta High Court in Mamuda Khateen & Ors. vs. Beniyan Bibi & Ors., AIR 1976 Cal. 415 held 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 appealable order. (13). In Ratansingh vs. Vijaysingh and Others, AIR 2001 SC 279 , the Division Bench of the Honble Supreme Court held that dismissal of an application for condonation of delay would not amount to a decree and therefore dismissal of an appeal as time-barred would not also be a decree. (14). Contrary to the above noted views, the Privy Council in Nagendra Nath Dey vs. Suresh Chand Dey, AIR 1932 PC 165 held :– ``there is no definition of appeal in the Civil Procedure Code, but their Lordships have no doubt that any application by a party to an appellate court, asking it to set aside or revise a decision of a subordinate court, in an appeal within the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or incompetent. (15). The specific question involved, came to be considered by Honble Supreme Court in Messrs Mela Ram and Sons vs. Commissioner of Income Tax, Punjab, AIR 1956 SC 367 . Honble Supreme Court held that an appeal presented out of time is an appeal and an order dismissing it as time barred is one passed in an appeal. (16). In Sheodan Singh vs. Daryao Kunwar, AIR 1966 SC 1332 , rendered by four learned Judges of Honble Supreme Court, one of the questions that arose was whether the dismissal of an appeal from a decree on the ground that the appeal was barred by limitation was a decision in the appeal. Honble Supreme Court held :– ``We are, therefore, of opinion that where a decision is given on the merits by the Trial Court and the matter is taken an appeal and the appeal is dismissed on some preliminary ground like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the Trial Court on the merits, itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal. (17). (17). In Thambi vs. Mathew, AIR 1988 Kerala 48 the court held an appeal filed out of time is required to be dealt with by the appellate court under Section 3 of the Limitation Act and an order dismissing the appeal is a decree that can be subject of second appeal. (18). It will be profitable to note here that before the Single Bench of Honble Rajasthan High Court who decided the case of Chelaram (AIR 1997 Rajasthan 284) the earlier decision M/s Boards & Pvt. Ltd. petitioner vs. M/s. Himalaya Paper (Machinery) Pvt. Ltd., New Delhi, AIR 1990 Raj. 128 was not cited, as such was not considered. The Rajasthan High Court in case of M/s Boards & Pvt. Ltd. (supra), held :– ``Order by Trial Court that suit is barred by limitation and is liable to be ``dismissed-Amounts to final adjudication-Appeal lies and not revision. (19). Honble the Supreme Court in Shyam Sunder Sharma vs. Panna Lal Jaiswal and Ors. (2005) 1 S.C.C. 436 discussed the entire law on the subject. The three judges bench explained the judgment delivered in Ratan Singh vs. Vijay Singh (2001) 1 S.C.C. 469 . (20). The Honble Supreme Court approved the full bench decision of the Kerala High Court delivered in Thambi vs. Mathew, AIR 1988 Kerala 48 (supra). The relevant portion of the judgment has been quoted at Paragraph 10 of the judgment of Shyam Sunder Sharma vs. Panna Lal Jaiswal which reads as under:– ``The question was considered in extenso by a Full Bench of the Kerala High Court in Thambi vs. Mathew. Therein, after referring to the relevant decisions on the question it was held that an appeal presented out of time was nevertheless an appeal in the eye of the law for all purposes and an order dismissing the appeal was a decree that could be the subject of a second appeal. It was also held that Rule 3-A of Order 41 introduced by Amendment Act 104 of 1976 to the Code, did not in any way affect that principle. An appeal registered under Rule 9 of Order 41 of the Code had to be disposed of according to law and a dismissal of an appeal for the reason of delay in its presentation, after the dismissal of an application for condoning the delay, is in substance and effect a confirmation of the decree appealed against. An appeal registered under Rule 9 of Order 41 of the Code had to be disposed of according to law and a dismissal of an appeal for the reason of delay in its presentation, after the dismissal of an application for condoning the delay, is in substance and effect a confirmation of the decree appealed against. Thus, the position that emerges on a survey of the authorities is 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. (21). The case of Bhopal Sugar Industries Ltd. (supra), is not applicable to the facts of the case in hand. In that case the question of Supreme Court Judgment being contrary to direction issued by the Tribunal did not arise and the direction had become final. Yet the income-tax officer subordinate refused to carry out the direction of the Tribunal. Such a situation has not arisen in the case at hand. The appeal is still pending As the Honble Supreme Court has finally laid down the law in Shyam Sunder Sharma (supra), all subordinate courts in India are bound to follow the same. The argument raised by intervener Shri Ashok Nath has no legs to stand. In view of the authoritative decision of the Honble Supreme Court which is binding on the Board of Revenue for Rajasthan, Ajmer the other decisions contrary to it need not be followed. The Rajasthan High Court in Motiyan vs. State of Rajasthan, 1981 RLW 448 (supra), held that :– ``Precedental Law-Decision of Larger Bench of Rajasthan High Court-Contrary decision of Supreme Court on same question-Same Question before Single Bench of Rajasthan High Court-Single Judge not bound to follow law laid down by Larger Bench in view of judgment of Supreme Court. (22). The net result in our considered opinion is :– (I) The order passed rejecting an application under Section 5 of the Limitation Act 1963 in an appeal and dismissing the appeal is appealable. (II) That the order passed rejecting an application under Section 5 of the Limitation Act 1963 in appeal and dismissing the appeal is decree and the order is not revisable. (23). The reference is decided as mentioned above. The Revision No. 108/01 is hereby ordered to be converted into appeal. (II) That the order passed rejecting an application under Section 5 of the Limitation Act 1963 in appeal and dismissing the appeal is decree and the order is not revisable. (23). The reference is decided as mentioned above. The Revision No. 108/01 is hereby ordered to be converted into appeal. This case be listed as appeal and be placed before the Division Bench for disposal according to law on merits. Pronounced in the open Court.