Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 2418 (ALL)

GANGA PRASAD v. BABU LAL

2016-07-13

ATTAU RAHMAN MASOODI

body2016
JUDGMENT Hon’ble Attau Rahman Masoodi, J.—A suit for cancellation of sale-deed was filed by the appellants bearing civil suit No. 209 of 1996 which was dismissed by the trial Court vide judgement/order dated 31.3.2004 and against which first appeal registered as civil appeal No. 24 of 2004 was filed and the same was dismissed in default by order dated 26.7.2008. The application for recall of the said order was belatedly filed by the appellants on 24.11.2010 before the first appellate Court which was accompanied with an application under Section 5 of the Indian Limitation Act, 1963. The application under Section 5 was registered as misc. case No. 61 of 2010. 2. The present first appeal from order has been filed against the order passed by the first appellate Court whereby the application filed under Section 5 of the Indian Limitation Act, 1963 was rejected on 17.10.2011 as well as the order dated 26.7.2008 dismissing the first appeal in default. 3. Sri Anoop Srivastava-II, learned Counsel for the respondent has raised a preliminary objection against the maintainability of present first appeal from order on the ground that such an appeal is not conceived within the purview of Order XLIII Rule 1 (t) of the Code of Civil Procedure, 1908 which only permits an appeal from order to be filed against an order of refusal passed under Rule 19 of Order XLI or an order passed under Rule 21 Order XLI Code of Civil Procedure. The operative part of the impugned order dated 17.10.2011 reads as under: vkns'k izkFkZuk i= 3&[k fnukafdr 24-11-10 vUrxZr /kkjk 5 fe;kn vf/kfu;e fujLr fd;k tkrk gSA 4. The submission proceeds that an order passed on an application filed under Section 5 of the Indian Limitation Act, 1963 is not in the nature of an order against which first appeal from order can be entertained under Order XLIII Rule 1 (t) of the Code of Civil Procedure, 1908. The relevant extract of Order XLIII Rule 1 (t) of the C.P.C. is reproduced below : “1. Appeal from orders.—An appeal shall lie from the following orders under the provisions of section 104, namely : (a)............................ (t) an order of refusal under rule 19 of Order XLI to re-admit, or under rule 21 of Order XLI to re-hear, an appeal;” 5. Appeal from orders.—An appeal shall lie from the following orders under the provisions of section 104, namely : (a)............................ (t) an order of refusal under rule 19 of Order XLI to re-admit, or under rule 21 of Order XLI to re-hear, an appeal;” 5. From a plain reading of the aforesaid provision it is clear that the rejection of application filed under Section 5 of the Indian Limitation Act, 1963 does not fall within the scope of aforesaid provision as such the objection has force and deserves consideration. 6. Learned Counsel for the appellants being confronted with the objection raised in unable to persuade the Court on the strength of any legal provision to support the present first appeal from an order passed on Section 5 application. Although the rejection of an application under Section 5 of the Indian Limitation Act, 1963 would result into rejection of the application for recall of appeal by implication, but the consequential order passed on the recall application is neither said to have been passed nor is placed on record and is also not challenged by the appellants. True that the technicalities have not to intercept the course of justice but unless the orders passed on the two applications are duly challenged, the appeal against the impugned order dated 17.10.2011 being passed under an independent statute from a plain reading would not lie. The appellants while filing the application for recall of the order dated 26.7.2008, do appear to have made a mention to a wrong provision i.e. Order IX Rule 13 but even if the said application is assumed to have been filed under Order XLI Rule 19, the appellants on the strength of the reasons stated in the application filed under Section 5 of the Limitation Act, had to cross the hurdle of limitation failing which the reasons stated for restoration howsoever just they may be, do not precipitate for being considered on merit. The Court below has clearly recorded that there was absolutely no reason stated for justifying the delay of two and a half years and this finding of the Court below unless challenged before the competent Court having jurisdiction, cannot be gone into in the present appeal. The Court below has clearly recorded that there was absolutely no reason stated for justifying the delay of two and a half years and this finding of the Court below unless challenged before the competent Court having jurisdiction, cannot be gone into in the present appeal. The appellants may have a good case for restoration of appeal but unless the case for condonation of delay is set up and made out, the hurdle of jurisdiction to entertain the appeal under Order XLIII Rule 1 (t) cannot be overlooked. The scope of Section 5 application under the Limitation Act, 1963 is compartmentalized and once the statutory objection is raised, the same constitutes an independent cause for which the remedy of appeal under Order XLIII Rule 1 (t) is neither provided nor conceived and the bar under Section 104 CPC comes into play. Section 104 CPC being relevant is reproduced below: “104. Orders from which appeal lies: (1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders: (ff) an order under Section 35-A; (ffa) an order under Section 91 or Section 92 refusing leave to institute a suit of the nature referred to in Section 91 or Section 92, as the case may be; (g) An order under Section 95; (h) An order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree; (i) Any order made under rules from which an appeal is expressly allowed by rules: Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of less amount, ought to have been made. (2) No appeal shall lie from any order passed in appeal under this section.” 7. (2) No appeal shall lie from any order passed in appeal under this section.” 7. Though the FAFO, by virtue of Section 104 (2) would not lie against the order dated 26.7.2008, yet the argument of the learned appellants’ counsel that the restoration application in the absence of being dealt with independently and a consequential order not passed, therefore, the impugned order dated 27.10.2011 ought to be treated to be an order passed under Order XLI Rule 19, in fact, strengthens the contention of the respondents, who vehemently argued that the impugned order passed on 17.10.2011 has to be tested within the ambit of Section 5 of the Limitation Act alone, inasmuch as, the occasion for consideration of the restoration application would arise only when the delay is condoned prior to which the reasons for restoration would remain in limbo. The argument of the counsel for the respondents deserves to be sustained and proposition advanced by the learned counsel for the appellants is overruled looking to the clear bar envisaged under Section 104 Code of Civil Procedure. 8. This Court may, however, clarify that once the prayer for condonation of delay in a case is found justified and the competent Court condones the delay, the Court can, in that event, proceed to consider the reasons on the basis of which the application for recall of order may be dealt with by a separate or composite order which may very well be treated to be an order passed under Order XLI Rule 19 but not otherwise as is the case at hand where the Court below while rejecting delay condonation application has refrained from passing an order on recall/restoration application which remains dormant. 9. Normally law and justice must not remain distant neighbours but for the sake of equality and cause of justice a litigant being governed by the rule of law, is legally bound by the judicial discipline which in my humble understanding is the purpose and object of the Indian Limitation Act for crystallizing legal relationship in the society. It is for this reason that the statutory objection of limitation in civil law cannot be sidelined. The provisions of appeal under various statutes like tax, revenue and service law are differently couched and the law laid down on that premise may not be attracted. It is for this reason that the statutory objection of limitation in civil law cannot be sidelined. The provisions of appeal under various statutes like tax, revenue and service law are differently couched and the law laid down on that premise may not be attracted. The Code of Civil Procedure pays full respect to the law of limitation for its definite object and purpose. Moreover, the interpretation of statute in a manner discussed above does not scuttle the remedy altogether. 10. The appellants may have a remedy elsewhere which he is at liberty to avail. In nutshell the objection raised is not of limitation alone but it goes to touch upon the jurisdiction of this Court to entertain the FAFO, therefore, the provisions of statute have to be construed on its plain reading particularly when the rule is unambiguous. 11. The appellants’ remedy open to them against an order passed on the application filed under Section 5 of the Indian Limitation Act, 1963 lies elsewhere, but a first appeal from order within the scope of Order XLIII Rule 1 (t) of the Code of Civil Procedure, 1908 would not be maintainable against such an order. 12. In view of the aforesaid discussion, I am of the considered opinion that the first appeal from order passed on Section 5 application filed under Limitation Act, 1963 would not be maintainable within the ambit of Order XLIII Rule 1 (t) which lends support to the contention of the learned Counsel for the respondents, as such, the objection raised is upheld. 13. The first appeal from order filed by the appellants not being maintainable under Order Order XLIII Rule 1 (t) of the Code of Civil Procedure, 1908 against the orders dated 17.10.2011 as well as 26.7.2008 is therefore rejected as not maintainable. 14. However, it is open to the appellants to avail the remedy open to him under law. 15. Since an order of status quo was passed by this Court at the initial stage of filing of this first appeal from order which is operating till date therefore in the interest of justice, the benefit of this order shall be available to the appellants for a period of three weeks from today subject to availing the remedy open to them under law. ——————