State of Rajasthan and Others Vs. Rajpal Singh Chauhan - Court Judgment

SooperKanoon Citationsooperkanoon.com/952661
CourtRajasthan High Court
Decided OnOct-21-2011
Case NumberS.B. Civil Misc. Application Nos. 329 & 330 of 2011 in S.B. Civil Second Appeal Nos. 54 of 2010 & 472 of 2009
Judge NARENDRA KUMAR JAIN-I
AppellantState of Rajasthan and Others
RespondentRajpal Singh Chauhan
Excerpt:
1. heard learned counsel for the parties. 2. the applicant/plaintiff/respondent has filed these applications in s.b.civil second appeal no.54/2010 and s.b.civil second apeal no.472/2009 for recalling of the order of this court dated 22nd february, 2011 {reported in air 2011 raj. 101; 2011 (2) ilr (raj.) 301 and 2011 (2) wlc raj. 595}. 3. learned counsel for applicant/respondent submitted that he had raised a preliminary objection about maintainability of the second appeals, which were directed against dismissal of the appeals being barred by limitation, consequent upon dismissal of the applications under section 5 of the limitation act and in support of his contention, he relied upon judgment of the hon'ble apex court in the case of ratansingh v. vijaysingh and others reported in air 2001 supreme court 279 and full bench decision of karnataka high court in the case of the commissioner, hubli-dharwad municipal corpn. vs. shrishail and others, reported in air 2004 karnataka 75 (full bench), at the time of raising preliminary objection, he was not aware that the judgment of the hon’ble supreme court in ratansingh v. vijaysingh (supra) had already been overruled by larger bench of the hon’ble supreme court in shyam sunder sarma v. pannalal jaiswal reported in air 2005 supreme court 226. he has further submitted that when he came to know about the subsequent judgment of the hon’ble supreme court, then he contacted the applicant and advised him to move the present application for recalling of the order. he has further submitted that he is deeply regretted and for which he places on record an unqualified apology. 4. learned counsel for non-applicant/defendants/appellant submitted that she had no knowledge about subsequent judgment of hon’ble supreme court delivered in shyam sunder sarma v. pannalal jaiswal (supra), therefore, she could not bring the said judgment when the appeal was argued. therefore, she also regrets and apologize for the same. 5. learned counsel for both the parties agreed and submitted that order of this court dated 22nd february, 2011 be recalled. 6. in both the cases, the suit for declaration filed by plaintiff was decreed by trial court and first appeals preferred by defendants were admittedly barred by limitation and in both the cases, applications under section 5 of the limitation act for condonation of delay in filing the first appeal were dismissed and consequently, first appeals were also dismissed being barred by limitation. the said orders of first appellate court were challenged in both the above referred second appeals preferred on behalf of the defendants/state of rajasthan. 7. a preliminary objection was taken by learned counsel for plaintiff-respondents that order dismissing the application for condoning the delay in filing the appeal was not a decree, therefore, second appeal is not maintainable and in support of his contention, he relied upon a judgment of the hon’ble supreme court in ratansingh v. vijaysingh (supra) and judgment of full bench of karnataka high court in the commissioner, hubli-dharwad municipal corpn. v. shrishail and others (supra). no other judgment including the judgment of hon’ble supreme court delivered in shyam sunder sarma vs. pannalal jaiswal (supra) was referred by learned counsel for any of the parties. since, preliminary objection of learned counsel for respondent was based on judgment of the supreme court and full bench judgment of the karnataka high court and no contrary judgment was referred or brought to my notice, therefore, it was held by this court that both the second appeals are not maintainable and they were dismissed as such with liberty to appellants to file revision petitions against impugned orders. 8. it appears that judgment of hon’ble supreme court in ratansingh v. vijaysingh (supra) was considered by three judge bench of supreme court in shyam sunder sarma v. pannalal jaiswal (supra) and the view expressed by two judges of hon’ble supreme court in ratansingh v. vijay singh (supra) was not accepted as laying down the correct law on the question and earlier judgment of the hon’ble supreme court in ratansingh's case (supra) was overruled by supreme court in shyam sunder sarma's case (supra). since judgment dated 22nd february, 2011 passed by this court is based on judgment of the hon’ble supreme court in ratansingh v. vijaysingh (supra) and the said judgment has already been overruled by larger bench of the hon’ble supreme court in shyam sunder sarma v. pannalal jaiswal (supra) and learned counsel for applicant/plaintiff has moved applications for recalling of the order mentioning therein that he was not in the knowledge of subsequent judgment of the supreme court in shyam sunder sarma v. pannalal jaiswal, at the time of raising preliminary objection about maintainability of the second appeals and he is deeply regretted and placed on record an unqualified apology. 9. i have considered the requests of learned counsel for the parties and examined the matter and i find that hon’ble supreme court in shyam sunder sarma v. pannalal jaiswal (supra) had considered its earlier judgment in ratansingh v. vijaysingh (supra) and took a view that view expressed by two judge bench in ratansingh v. vijaysingh cannot be accepted as laying down the correct law on the question. para 12 of shyam sunder sarma’s case is reproduced as under :- “learned counsel placed reliance on the decision in ratansingh v. vijaysingh 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 meal 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. meta 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 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”. 10. since the order dated 22nd february, 2011 is based on judgment of hon’ble supreme court in ratansingh v. vijaysingh (supra), which has already been overruled by larger bench of hon’ble supreme court in shyam sunder sarma v. pannalal jaiswal (supra), therefore, it is necessary to recall the order dated 22nd february, 2011 as it is based on overruled judgment. 11. consequently, both the applications are allowed; the order dated 22nd february, 2011 {reported in air 2011 raj. 101; 2011 (2) ilr raj. 301 and 2011 (2) wlc raj. 595} passed in s.b.civil second appeal nos.472/2009 and 54/2010 is recalled and it is held that second appeal against order dismissing first appeal being time barred, consequent upon dismissal of application under section 5 of the limitation act, is maintainable. accordingly, both the second appeals are restored to their original number and the same be placed before bench concerned for admission.
Judgment:

1. Heard learned counsel for the parties.

2. The applicant/plaintiff/respondent has filed these applications in S.B.Civil Second Appeal No.54/2010 and S.B.Civil Second Apeal No.472/2009 for recalling of the order of this Court dated 22nd February, 2011 {reported in AIR 2011 Raj. 101; 2011 (2) ILR (Raj.) 301 and 2011 (2) WLC Raj. 595}.

3. Learned counsel for applicant/respondent submitted that he had raised a preliminary objection about maintainability of the second appeals, which were directed against dismissal of the appeals being barred by limitation, consequent upon dismissal of the applications under Section 5 of the Limitation Act and in support of his contention, he relied upon judgment of the Hon'ble Apex Court in the case of Ratansingh V. Vijaysingh and Others reported in AIR 2001 Supreme Court 279 and Full Bench decision of Karnataka High Court in the case of The Commissioner, Hubli-Dharwad Municipal Corpn. Vs. Shrishail and Others, reported in AIR 2004 Karnataka 75 (Full Bench), at the time of raising preliminary objection, he was not aware that the judgment of the Hon’ble Supreme Court in Ratansingh v. Vijaysingh (supra) had already been overruled by Larger Bench of the Hon’ble Supreme Court in Shyam Sunder Sarma v. Pannalal Jaiswal reported in AIR 2005 Supreme Court 226. He has further submitted that when he came to know about the subsequent judgment of the Hon’ble Supreme Court, then he contacted the applicant and advised him to move the present application for recalling of the order. He has further submitted that he is deeply regretted and for which he places on record an unqualified apology.

4. Learned counsel for non-applicant/defendants/appellant submitted that she had no knowledge about subsequent judgment of Hon’ble Supreme Court delivered in Shyam Sunder Sarma v. Pannalal Jaiswal (supra), therefore, she could not bring the said judgment when the appeal was argued. Therefore, she also regrets and apologize for the same.

5. Learned counsel for both the parties agreed and submitted that order of this Court dated 22nd February, 2011 be recalled.

6. In both the cases, the suit for declaration filed by plaintiff was decreed by trial court and first appeals preferred by defendants were admittedly barred by limitation and in both the cases, applications under Section 5 of the Limitation Act for condonation of delay in filing the first appeal were dismissed and consequently, first appeals were also dismissed being barred by limitation. The said orders of first appellate court were challenged in both the above referred second appeals preferred on behalf of the defendants/State of Rajasthan.

7. A preliminary objection was taken by learned counsel for plaintiff-respondents that order dismissing the application for condoning the delay in filing the appeal was not a decree, therefore, second appeal is not maintainable and in support of his contention, he relied upon a judgment of the Hon’ble Supreme Court in Ratansingh v. Vijaysingh (supra) and judgment of Full Bench of Karnataka High Court in the Commissioner, Hubli-Dharwad Municipal Corpn. V. Shrishail and Others (supra). No other judgment including the judgment of Hon’ble Supreme Court delivered in Shyam Sunder Sarma vs. Pannalal Jaiswal (supra) was referred by learned counsel for any of the parties. Since, preliminary objection of learned counsel for respondent was based on judgment of the Supreme Court and Full Bench Judgment of the Karnataka High Court and no contrary judgment was referred or brought to my notice, therefore, it was held by this Court that both the second appeals are not maintainable and they were dismissed as such with liberty to appellants to file revision petitions against impugned orders.

8. It appears that judgment of Hon’ble Supreme Court in Ratansingh v. Vijaysingh (supra) was considered by Three Judge Bench of Supreme Court in Shyam Sunder Sarma v. Pannalal Jaiswal (supra) and the view expressed by two judges of Hon’ble Supreme Court in Ratansingh v. Vijay Singh (supra) was not accepted as laying down the correct law on the question and earlier judgment of the Hon’ble Supreme Court in Ratansingh's case (supra) was overruled by Supreme Court in Shyam Sunder Sarma's case (supra). Since judgment dated 22nd February, 2011 passed by this Court is based on judgment of the Hon’ble Supreme Court in Ratansingh v. Vijaysingh (supra) and the said judgment has already been overruled by Larger Bench of the Hon’ble Supreme Court in Shyam Sunder Sarma v. Pannalal Jaiswal (supra) and learned counsel for applicant/plaintiff has moved applications for recalling of the order mentioning therein that he was not in the knowledge of subsequent judgment of the Supreme Court in Shyam Sunder Sarma v. Pannalal Jaiswal, at the time of raising preliminary objection about maintainability of the second appeals and he is deeply regretted and placed on record an unqualified apology.

9. I have considered the requests of learned counsel for the parties and examined the matter and I find that Hon’ble Supreme Court in Shyam Sunder Sarma v. Pannalal Jaiswal (supra) had considered its earlier judgment in Ratansingh v. Vijaysingh (supra) and took a view that view expressed by two Judge Bench in Ratansingh v. Vijaysingh cannot be accepted as laying down the correct law on the question. Para 12 of Shyam Sunder Sarma’s case is reproduced as under :-

“Learned counsel placed reliance on the decision in Ratansingh v. Vijaysingh 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 Meal 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. Meta 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 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”.

10. Since the order dated 22nd February, 2011 is based on judgment of Hon’ble Supreme Court in Ratansingh v. Vijaysingh (supra), which has already been overruled by Larger Bench of Hon’ble Supreme Court in Shyam Sunder Sarma v. Pannalal Jaiswal (supra), therefore, it is necessary to recall the order dated 22nd February, 2011 as it is based on overruled judgment.

11. Consequently, both the applications are allowed; the order dated 22nd February, 2011 {reported in AIR 2011 Raj. 101; 2011 (2) ILR Raj. 301 and 2011 (2) WLC Raj. 595} passed in S.B.Civil Second Appeal Nos.472/2009 and 54/2010 is recalled and it is held that second appeal against order dismissing first appeal being time barred, consequent upon dismissal of application under Section 5 of the Limitation Act, is maintainable. Accordingly, both the second appeals are restored to their original number and the same be placed before Bench concerned for admission.