Writ Petition or Second Appeal: A Judgment for Advocacy Skill

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Title of the Case – A Writ Petition or Second Appeal: What is maintainable for remedy against Extension of Limitation and Condonation of Delay

Name of the case – Rama Devi & anr. Vs. Addl. Dist. & Session Judge., misc. no. 31997 of 2019 (Allahabad High Court)

Date of Judgment – January 21, 2020

Judges: Justice Rajan Roy

Subject and sections involved – Section 5 of the Limitation Act, 1963 and Section 100 of Code of Civil Procedure, 1908.

Issue:

  1. Whether the remedy for extension of limitation and condonation of delay in filing the appeal shall allowed to proceed through Article 227 of the Constitution of India or by the way of a second appeal under section 100 C.P.C?

Fact of the Case:

The petitioner, through a writ petition filed under Article 227 of the Constitution of India, has challenged an order passed by Additional District Judge dismissing the application of the petitioner under section 5 of the Limitation Act, 1963.

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Ratio of the Case:           

The High Court of Allahabad observed that an order passed on application under section 5 of the Limitation Act 1963, are to be treated as an order passed in appeal, and thus, petition filed under Article 227 of the Constitutional of India is not maintainable. Remedy against such an order shall be filed through second appeal under Rule 6-A of Order XX CPC.

Does an order dismissing an application u/s 5 of the Act, 1963 would not be a decree and that the order rejecting the memorandum of appeal consequent to rejection of the application u/s 5 of the Act 1963 was merely an incidental order?

Dealing with the question as noted above, the bench relied upon the case of Supreme Court in Shayam Sunder Sharma v. Panna Lal Jaiswal & Ors., AIR 2005 SC 226, wherein a three-judge bench of Supreme Court held that an order passed on an application u/s 5 of the Act 1963 rejecting the same is nevertheless an order passed in appeal. Further, an appeal presented out of time was nevertheless an appeal in the eyes of law for the purposes and an order dismissing the appeal was a decree and that could be the subject of a second appeal.

It was further observed that it would be in the fitness of things if the Civil Courts while dismissing an application under section 5 of the Act 1963 also pass consequential orders dismissing the appeal itself, as is also mandated under section 3 of the Limitation Act 1963, as, in such a scenario, a decree of such an order would necessarily be prepared in terms of the existing provisions of the C.P.C. and this would facilitate filing of a second appeal or its hearing and decision thereon.