High Court · 2025

Mr. Harsh Vardhan Dhanik, Advocat e, for t he pet it ioner. Mr. Nikhil Singhal, Advocat e, for t he respondent no. 1. Pet it ioner has challenged order ( 2) 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. t o a Singhal, Mr. Nikhil ( 3) learned Counsel appearing for t he respondent no. 1, has referred 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: t hat an order rej ect ing a “ 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 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. t herein t his Court it was held in Mela Ram 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 dism issal of an t hat 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 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 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 Sons and Sheodan Singh and anot her decision of t his Court rendered by t wo learned Judges in Rani Choudhury . Choudhury v. Lt .- Col. I n Essar Const ruct ions v. N.P. Ram a Krishna Reddy brought t o our not ice, t wo ot her learned in Mela Ram decisions Suraj t he Jit 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 .” Mr. Singhal has also referred t o a ( 4) 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 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 fact an order on an appeal, and C.P.C. t herefore appealable under sect ion 100 of t he C.P.C.” t he order t hat Since rej ect ing t herefore, ( 5) t he t he order delay condonat ion applicat ion in an appeal, filed under Sect ion 96 CPC, is appealable under Sect ion 100 CPC, 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 o j K u m a r Ti w a r i , J.) 2 7 .2 .2 0 2 5 Pr