WPMS/1997/2023 on 27 February, 2025

Uttarakhand High Court

WPMS/1997/2023 on 27 February, 2025

               Office Notes,
              reports, orders
SL.           or proceedings
      Date                                           COURT'S OR JUDGES'S ORDERS
No           or directions and
             Registrar's order
              with Signatures
                                 W PM S 1 9 9 7 / 2 0 2 3
                                 H on'ble M a noj Kum a r Tiw a r i, J.

Mr. Harsh Vardhan Dhanik,
Advocat e, for t he pet it ioner.

Mr. Nikhil Singhal, Advocat e, for
t he respondent no. 1.

( 2) Pet it ioner has challenged order
dat ed 31.5.2023, passed by 5 t h Addit ional
Dist rict Judge, Haridwar in Miscellaneous
Case No. 192 of 2022. By t he said order,
pet it ioner’s applicat ion for condonat ion of
delay in filing regular first appeal under
Sect ion 96 CPC was rej ect ed on t he ground
t hat sufficient cause has not been shown for
condoning t he delay of 346 days.

( 3) Mr. Nikhil Singhal, learned
Counsel appearing for t he respondent no. 1,
has referred t o a j udgm ent of Hon’ble
Suprem e Court , rendered in t he case of
Shyam Sundar Sarm a v. Pannalal Jaiswal,
report ed in ( 2005) 1 SCC 436. Para 11 and
12 of t he said j udgm ent are reproduced
below:

” 1 . Learned counsel for t he appellant
relied on t he Full Bench decision of t he Calcut t a
High Court in Mam uda Khat een v. Beniyan Bibi t o
cont end t hat an order rej ect ing a t im e- barred
m em orandum of appeal consequent upon refusal t o
condone t he delay in filing t hat appeal was neit her
a decree nor an appealable order. On going t hrough
t he said decision it is seen t hat t hough t he Full
Bench referred t o t he divergent views on t hat
quest ion in t he Calcut t a High Court prior t o t he
rendering of t he decision of t his Court in Mela Ram
and Sons it had not considered t he decisions of t his
Court in Raj a Kulkarni and in Mela Ram and Sons in
com ing t o t hat conclusion. I n fact it is seen t hat
t here was no discussion on t hat aspect as such,
t hough t here was a reference t o t he conflict of
views in t he decisions earlier rendered by t he
Calcut t a High Court . Since t he rat io of t hat decision
runs count er t o t he principle laid down by t his
Court in Mela Ram and Sons obviously t he sam e
could not be accept ed as laying down a correct law.

1 2 . Learned counsel placed reliance on
t he decision in Rat ansingh v. Vij aysingh rendered
by t wo learned Judges of t his Court and point ed out
t hat it was held t herein t hat dism issal of an
applicat ion for condonat ion of delay would not
am ount t o a decree and, t herefore, dism issal of an
appeal as t im e- barred was also not a decree. That
decision was render ed in t he cont ext of Art icle 136
of t he Lim it at ion Act , 1963 and in t he light of t he
depart ure m ade from t he previous posit ion
obt aining under Art icle 182 of t he Lim it at ion Act ,
1908. But we m ust point out wit h respect t hat t he
decisions of t his Court in Mela Ram and
Sons and Sheodan Singh were not brought t o t he
not ice of Their Lordships. The principle laid down by
a t hree- Judge Bench of t his Court in Mela Ram and
Sons and t hat st at ed in Sheodan Singh was, t hus,
not not iced and t he view expressed by t he t wo-
Judge Bench, cannot be accept ed as laying down
t he correct law on t he quest ion. Of course, Their
Lordships have st at ed t hat t hey were aware t hat
som e decisions of t he High Court s have t aken t he
view t hat even rej ect ing an appeal on t he ground
t hat it was present ed out of t im e is a decree wit hin
t he definit ion of a decree obt aining in t he Code.
Thereaft er, not icing t he decision of t he Calcut t a
High Court above- referred t o, Their Lordships in
conclusion apparent ly agree wit h t he decision of t he
Calcut t a High Court . Though t he decision of t he
Privy Council in Nagendra Nat h Dey v. Suresh
Chandra Dey was referred t o, it was not applied on
t he ground t hat it was based on Art icle 182 of t he
Lim it at ion Act , 1908, and t here was a depart ure in
t he legal posit ion in view of Art icle 136 of t he
Lim it at ion Act , 1963. But wit h respect , we m ust
point out t hat t he decision really conflict s wit h t he
rat io of t he decisions in Mela Ram and
Sons and Sheodan Singh and anot her decision of
t his Court rendered by t wo learned Judges in Rani
Choudhury v. Lt .- Col. Suraj Jit Choudhury .
I n Essar Const ruct ions v. N.P. Ram a Krishna
Reddy brought t o our not ice, t wo ot her learned
Judges of t his Cour t left open t he quest ion. Hence,
reliance placed on t hat decision is of no avail t o t he
appellant .”

( 4) Mr. Singhal has also referred t o a
j udgm ent rendered by a learned Single
Judge of Allahabad High Court in t he case of
Sm t . Geet a Bala Goyal & anot her v. Kailash
Chandra ( Dead) & ot hers, report ed as 2008
SCC OnLine All 1171. Para 15 of t he said
j udgm ent is reproduced below:

” I n view of t he aforesaid decisions of
t he Suprem e Court and t he Full Bench of t he Kerala
High Court which has also been approved by t he
Suprem e Court in Shyam Sunder’s case ( supra) ,
t his Court holds t hat t he order rej ect ing an
applicat ion under sect ion 5 of t he Lim it at ion Act or
an applicat ion under Order XLI , Rule 3- A of t he
C.P.C. is in fact an order on an appeal, and
t herefore appealable under sect ion 100 of t he
C.P.C.”

( 5) Since t he order rej ect ing t he
delay condonat ion applicat ion in an appeal,
filed under Sect ion 96 CPC, is appealable
under Sect ion 100 CPC, t herefore, t his
Court declines t o ent ert ain t his writ pet it ion.
Writ pet it ion is, accordingly, dism issed.
However, pet it ioner shall be at libert y t o file
an appeal under Sect ion 100 CPC, against
t he order im pugned in t his writ pet it ion, if
so advised. Pet it ioner shall be at libert y t o
seek benefit of Sect ion 13 of Lim it at ion Act
before t he second appellat e court .

( M a n oj Ku m a r Tiw a r i, J.)

2 7 .2 .2 0 2 5
Pr