Writ Petition No.2729 of 2012

22nd October, 2013

Petitioner Counsel: Mr. C.V. DHARURKAR
Respondent Counsel: Mr. G.K. NAIK-THIGLE

Cases Cited:
Shyam Sundar Sarma Vs. Pannalal Jaiswal and ors., 2005(5) ALL MR 152 (S.C.)=(2005) 1 SCC 436 [Para 4,5,6]
Namdeo s/o. Kishan Sakhare Vs. Sow. Dwarkabai w/o Jija Sakhare & Ors., SA No.502/2009, Dt.8/12/2010 [Para 4]
Chandu s/o. Jagannath Ambekar and anr. Vs. Digambar s/o Kisanrao Kulkarni and ors., 2004 BCI (0) 69 [Para 4,10]
Smt.Bhagwati Devi & Ors., Vs. Smt.Angoori Devi & Ors., First Appeal From Order No.1371/1999 [Para 5]

JUDGMENT

JUDGMENT :- This writ petition is directed against the order dated 17.1.2012 passed by District Judge-II, Beed in Miscellaneous Civil Application No.192/2006 in R.C.A.No.100/2002.

2. Respondents filed R.C.S.No.32/1993, against the petitioners for possession of the suit land. The said suit was decreed by judgment and order dated 26.7.2002 by Civil Judge, Junior Division, Gevrai. The said judgment and order dated 26.7.2002 was challenged by the present petitioners by filing R.C.A.No. 100/2002. Said Regular Civil Appeal was dismissed for default on 1.9.2005 by V Ad hoc Additional District Judge, Beed. The petitioners thereafter filed application for restoration and readmission of the said appeal. However, there was delay of 10 months and 5 days for filing the application for restoration of the appeal and, therefore, a separate application for condonation of delay was filed. Both the applications were heard and the District Judge-2, Beed, by order dated 17.1.2012 dismissed the said application for condonation of delay. Hence, this petition.

3. Learned Counsel for the respondents, at the outset, raised objection to the maintainability of this petition. Learned Counsel for both the sides advanced their arguments on this point and by consent, requested the Court to decide this issue first.

4. Learned Counsel for the respondents submitted that by impugned order, the application for condonation of delay for filing application for setting aside the order of dismissal of the appeal is dismissed, which, in fact, amounts to the dismissal of the appeal itself. He submitted that the petitioners, therefore, should not have filed the petition challenging the said orders, but considering the final result of the dismissal of these applications, it was necessary for the petitioners to file appeal against the said order under Order XLIII, Rule 1 (t) of the Code of Civil Procedure and second appeal under Order XLII of the C.P.C. Learned Counsel fortified this submission on the basis of ratio laid down by the Honourable Supreme Court in Shyam Sundar Sarma Vs. Pannalal Jaiswal and ors., reported in (2005) 1 Supreme Court Cases 436 : [2005(5) ALL MR 152 (S.C.)], in which Honourable Supreme Court held that refusal to condone the delay amounts to dismmisal of appeal. He relied on the order passed by the learned Single Judge of this Court dated 8.12.2010 in Second Appeal No.502 of 2009 (Namdeo s/o Kishan Sakhare Vs. Sow. Dwarkabai w/o Jija Sakhare & Ors.), wherein the appeal was dismissed on refusal to allow the application for condonation of delay and so, the second appeal was preferred and the Court, while admitting the second appeal, formulated a substantial question of law in respect of proof of sufficient cause in the application for condonation of delay. Learned Counsel further relied on the judgment of this High Court in Chandu s/o Jagannath Ambekar and anr. Vs. Digambar s/o Kisanrao Kulkarni and ors., reported in 2004 BCI (0) 69.

5. In reply, learned Counsel for the petitioners submitted that application for restoration of appeal was dismissed due to the dismissal of the application for condonation of delay. Hence, no appeal can lie on such order, but the only remedy available is to avail of the writ jurisdiction of this Court. He submitted that the facts of his case are different from the facts in the case of Shyam Sundar, [2005(5) ALL MR 152 (S.C.)] (supra) and, therefore, the matter is different than the case of Shyam Sundar, [2005(5) ALL MR 152 (S.C.)] (supra). He submitted that in the case of Shyam Sundar, [2005(5) ALL MR 152 (S.C.)] (supra), appeal was not dismissed, but the application for condonation of delay, for filing appeal was dismissed and, therefore, it was considered that the appeal is dismissed. Learned Counsel further argued that under Rule 3A of Order XLI of the C.P.C., application for condonation of delay is preferred, if the appeal is presented after the expiry of period of limitation specified under the Limitation Act. Learned Counsel submits that in the case of Shyam Sundar Sarma, [2005(5) ALL MR 152 (S.C.)] (supra), such application under Rule 3A of Order XLI of the C.P.C. was preferred. However, in the present case, the application is not filed under Rule 3A of Order XLI of the C.P.C., but it is filed under Section 5 of the Limitation Act and, therefore, the petition is maintainable. In support of his submissions, he relied on an unreported judgment of Allahabad High Court in First Appeal From Order No.1371 of 1999 (Smt.Bhagwati Devi & Ors., Vs. Smt.Angoori Devi & Ors.) and learned Counsel submitted that when similar issue was raised, the learned Single Judge of Lucknow High Court has taken a view that the appeal filed against the order of rejection of application for condonation of delay, is not maintainable.

6. Both the learned Counsel have strenuously argued this short point. In the case of Shyam Sundar Sarma, [2005(5) ALL MR 152 (S.C.)] (supra), appeal was not filed but appeal along with application for condonation of delay was filed and the said application for condonation was refused, the appeal in the result, was dismissed. In the present case, appeal was already filed, notices were also served on some of the respondents. However, it was dismissed for want of prosecution. If the appeal is dismissed for default under Rule 11 and Rule 17 of Order XLI of the Code of Civil Procedure, then the remedy available is to apply to the Court for re-admission of the appeal under Rule 19 of Order XLIII of the Civil Procedure Code. If that application for restoration or re-admission is rejected, then the appellant is required to file appeal from the said order, as provided under Order XLIII, Rule 1 (t) of the Code of Civil Procedure.

7. In the present case, the issue is of re-admission of the appeal, as the appeal is dismissed for default. If the application for restoration or re-admission would have been rejected, the appellant had clear remedy under Order XLIII Rule 1 (t) of the Code of Civil Procedure. In the present case, there is one more step i.e. filing and refusal of application for condonation of delay for filing the restoration application. Order XLIII of the Civil Procedure Code states about the appeals from orders, which are mentioned under Section 104 of the Code of Civil Procedure. Thus, Section 104 of the C.P.C. has direct bearing over Order XLIII of the C.P.C. Thus, the orders which are specifically mentioned under Section 104 of the C.P.C. and thereby enumerated under Order XLIII of the C.P.C. are appealable under the caption " Appeals from orders". Section 104 (2) of the C.P.C. explains the scope of Order XLIII of the C.P.C. which reads as, " No appeal shall lie from any order passed in appeal under this section".

8. Under Section 5 of the Limitation Act, application for condonation of delay is moved and the said provision is not listed in Rule 1 of Order XLIII of the C.P.C. Though there is provision of appeal against order of refusal of application for readmission/ restoration, made under Rule 19 of Rule XLI of the C.P.C., there is no provision of appeal against order of rejection of application for condonation of delay. Thus, Rule 1 (t) of Order XLIII of the C.P.C. specifically covers order of refusal under Rule 19 of Order XLI to readmit, or under rule 21 of Order XLI to re-hear an appeal. Therefore, submission of Mr Thigle that the petitioners ought to have filed appeal from order under Order XLIII Rule 1 (t) of the C.P.C., is not sustainable within the folds of Order XLIII of the C.P.C.

9. As per Section 100 of the C.P.C., second appeal shall lie to the High Court on every decree passed in appeal by any Court sub-ordinate to the High Court. Rejection of the application for condonation of delay for re-admission, is not a decree. If appeal is filed and dismissed for default, the remedy is contemplated under Order XLIII, Rule 1 (t), that means refusal is an order and it is not a decree. If refusal to readmit or restore would have been considered as decree, then it would not have been specified under Order XLIII, but it would have been excluded from the said order and would have been covered under Order XLII or Section 100 of the C.P.C. However, it is treated as an order and, therefore, appeal against order is provided. Hence, it is logical when the application for condonation of delay is rejected, then by necessary implication, application for readmission/restoration is also rejected and for such refusal second appeal is not provided; so also it is not covered under Order XLIII Rule 1 (t) of the C.P.C. and, therefore, the petitioners have only remedy available is to prefer petition under the writ jurisdiction under Article 227 of the Constitution.

10. In the case of Chandu s/o Jagannath Ambekar and anr. Vs.Digambar Kisanrao Kulkarni (supra), the Division Bench of this High Court had an opportunity to deal with the issue of maintainability of the revision under Section 115 of the C.P.C. against the order of rejection of application for condonation of delay. In the said matter, the Division Bench has taken a view that revision under Section 115 of the C.P.C. does not lie against the order rejecting the application for condonation of delay. However, the Court has dealt with an application for condonation of delay, filed under Rule 3A of Order XLI of the C.P.C. and if at all that application is dismissed as time barred, then it results into dismissal of the appeal itself. In the present case, as argued by learned Counsel for the petitioner, the application for condonation of delay was not preferred under Rule 3A of Order XLI of the C.P.C., but it was an application under Section 5 of the Limitation Act. Thus, the ratio laid down in the said judgment is not useful to the learned Counsel for the respondent on the point of maintainability of the writ petition, when the order of rejection of the application for condonation of delay is challenged.

11. In the result, it is held that writ petition is maintainable and not an appeal under Order XLIII or under Order XLII of the C.P.C. It is made clear that all contentions including the issue raised under Order XXII Rule 4 of the C.P.C. are kept open and to be considered on merit at the time of hearing of the writ petition.

12. This Court places on record appreciation of the able assistance and co-operation rendered by learned Counsel for both the parties.

Ordered accordingly.