Ratan Singh v. Vijay Singh and others)
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Review No.125 of 2013 In SA 301 of 2012 ====================================================== Dulhin Lakshmina Devi & Ors. Versus .... .... Petitioner/s The State Of Bihar & Ors .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Bhuvaneshwar Prasad For the Respondent/s : Mr. Manoj Kumar Singh ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER 2 25-04-2013 This application has been filed for review/recall of the order dated 09.01.2013 passed in Second Appeal No. 301 of 2012, which was dismissed as withdrawn, in view of the report of the Stamp Reporter raising question of maintainability of the second appeal itself in the light of the judgment of Supreme Court reported in A.I.R. 2001 SC 279:(2001) 1 SCC 469 (Ratan Singh Vs. Vijay Singh and others). 2. The Second Appeal was preferred against the judgment dated 05.04.2012 passed by learned District Judge, Bhojpur at Ara, in T.A. No. 59 of 2010 by which he had dismissed the appeal
Legal Reasoning
filed on behalf of the plaintiffs/appellants/ review petitioner on the sole ground that the appeal was barred by limitation. It was in that context that the Stamp Reporter referring to the Supreme Court Judgment in Ranjit Singh V. Vijay Singh (supra) raised the issue of maintainability of the second appeal. In view of the said
Legal Reasoning
judgment of Supreme Court, learned counsel for appellants sought 2 Patna High Court C. REV. No.125 of 2013 (2) dt.25-04-2013 withdrawal of the second appeal with a liberty to prefer civil 2 / 4 revision against the said order. The prayer was allowed and liberty granted by this Court vide order dated 09.01.2013 under review. 3. Learned counsel appearing for the petitioner submits that out of ignorance of subsequent judgment of Supreme Court reported in A.I.R. 2005 SC 226 : (2005) 1 SCC 436 (Shyam Sundar Sarma Vs. Pannalal Jaiswal and others), he withdrew the second appeal though the second appeal was maintainable and the Stamp Reporter had incorrectly raised the objection of maintainability of the second appeal. 4. Learned counsel for the petitioner submits that it was only out of misconception of the legal position and ignorance of the subsequent judgment that the correct position could not be brought to the notice of the Court and learned counsel for the appellant elected to withdraw the second appeal. 5. He submits that the judgment rendered in Ranjit Singh V. Vijay Singh (supra) has been held not to be a good law in case of Shyam Sundar Sarma Vs. Pannalal Jaiswal (supra). He submits that in case of Shyam Sundar Sarma Vs. Pannalal Jaiswal (supra), the Apex Court noticed that earlier judgments reported in Sheodan Singh Vs. Daryao Kunwar A.I.R. 1966 SC 1332 and Mela Ram & Sons V. Commissioner of Income Tax, Punjab, A.I.R. 1956 SC 367 were not noticed in case of the judgment of the Supreme Court rendered in Ratan Singh Vs. Vijay Singh (supra). 3 Patna High Court C. REV. No.125 of 2013 (2) dt.25-04-2013 6. Learned counsel for the petitioner has placed reliance 3 / 4 also on the Supreme Court judgment reported in A.I.R. 1982 SC 1397 Rani Choudhury Vs. Suraj Jit Choudhury in order to contend that the dismissal of an appeal as time barred is also a decree appealable under Section 100 of code of Civil Procedure. 7. I find substance in submission on behalf of the petitioner. Judgment of Supreme Court reported in Ratan Singh Vs. Vijay Singh has been found by subsequent judgment of Supreme Court in case of Shyam Sundar Sarma Vs. Panna Lal Jaiswal as not laying down good law. The Supreme Court held in paragraph-12 as follows:- “Learned counsel placed reliance on the decision in Ratansingh v. Vijayasingh and others [(2001) 1 SCC 469] rendered by two learned Judges of this Court and pointed out that it was held therein that dismissal of an application for condonation of delay would not amount to a decree and, therefore, dismissal of an appeal as time barred was also not a decree. That decision was rendered in the context of Article 136 of the Limitation Act, 1963 and in the light of the departure made from the previous position obtaining under Article 182 of the Limitation Act, 1908. But we must point out with respect that the decisions of this Court in Messrs Mela Ram and Sons and Sheodan Singh (supra) were not brought to the notice of their Lordships. The principle laid down by a three Judge Bench of this Court in M/s. Mela Ram and Sons (supra) and that stated in Sheodan Singh (supra) was, thus, not noticed and the view expressed by the two Judge Bench, cannot be accepted as laying down the correct law on the question. Of course, their Lordships have stated that they were aware that some decisions of the High Courts have taken the view that even rejecting an appeal on the ground that it was presented out of time is a decree within the definition of a decree obtaining in the Code. Thereafter noticing the decision of the Calcutta High Court above referred to, their Lordships in conclusion apparently agree with the decision of the Calcutta High Court. Though the decision of the Privy Council in Nagendra Nath Dev v. Suresh Chandra Dev (supra) was referred to, it was not applied on the ground that it was based on Article 182 of the Limitation Act, 1908, and there was a departure in the legal position in view of Article 136 of the Limitation Act, 1963. But with respect, we must point out that 4 Patna High Court C. REV. No.125 of 2013 (2) dt.25-04-2013 4 / 4 the decision really conflicts with the ratio of the decision in Messrs Mela and Sons and Sheodan Singh (supra) and another decision of this Court rendered by two learned Judges in Rani Choudhury v. Lt-Col. Suraj Jit Choudhury [1982) 2 SCC 596]. In Essar Constructions vs. N.P. Rama Krishna Reddy [(2000) 6 SCC 94] brought to our notice two other learned Judges of this Court, left open the question. Hence, reliance placed on that decision is of no avail to the appellant.” 8. In view of the fact that it was mere out of ignorance that a prayer was made for withdrawal of the second appeal which was acceded to that the said order dated 09.01.2013 was passed in Second Appeal No. 301 of 2012. I find sufficient ground for review/ recall of the said order. 9. The order dated 09.01.2013 passed in Second Appeal No. 301 of 2012 is accordingly reviewed and recalled. It is held that a second appeal under Section 100 would lie against the judgment of the first appellate Court dismissing the appeal on the ground of limitation and thus confirming the judgment of the learned Trial Court, in the light of the judgment of Supreme Court reported in A.I.R. 2005 SC 226: (2005) 1 SCC 436 (Shyam Sunder Sarma V. Pannalal Jaiswal). 10. The petition is, accordingly, allowed. 11. Let a copy of this order be placed before learned Registrar General for its circulation in Registry. Saif/- (Chakradhari Sharan Singh, J.)