1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 311 of 2008 Shri Nagesh A. Khedekar and 11 Ors. .. Petitioners. Versus Smt. Vatsala Alias Gopika Pandurang Sawant (deceased) and 24 Ors. .. Respondents. Mr. N. Sardessai, Advocate for the petitioners. Mr. D. J. Pangam, Advocate for the respondent Nos. 3 to 7, 9 to 18. CORAM :- SMT. R. S. DALVI, J. DATE : 21 st April, 2009 . ORAL ORDER : Heard the learned Counsel for the parties. 2. This writ petition challenges the order dated 17.01.2008 refusing to condone the delay of 15 days (now stated to be 13 days) in preferring the first appeal against the judgment and decree of the Trial Court dated 24.08.2006. The delay was sought to be condoned on the ground that the medical certificate dated 10.11.2006 showed that the 2 appellant in the first appeal was suffering from hypertension with palpitation. He was treated on 25.10.2006 and advised mental and physical rest and restricted activities for three weeks from 25.10.2006. The Court considered that by that certificate the applicant was only trying to delay the matter “on one or the other ground”. The application has been rejected and the appeal has been disposed of accordingly. 3. The petitioners have filed this writ petition challenging the order refusing to condone the delay. The merits are none other than what is stated above. The order refusing to condone delay is reasoned. The medical certificate itself shows no ground by which an appeal could not be filed. It may be mentioned that hypertension with palpitation is a condition which unfortunately the person suffering from has to undergo throughout his lifetime and can be treated with medication. Such person cannot be excused from his other duties on that ground. 4. It is argued by the petitioners' Advocate that it is sought to be shown that the delay is so minimum that it must be condoned. The decree was passed on 24.08.2006. The petitioner herein applied for certified copy of decree on 3 25.08.2006. The certified copy was delivered on 30.09.2006. 30 days' period of limitation began running from 1.10.2006 till 31.10.2006. The appellant is stated to have suffered from hypertension with palpitation. The Doctor has advised him mental and physical rest and restricted activities for three weeks which period would end on 15.11.2006. He filed the appeal on 13.11.2006. It is argued that the Court took exception to the fact that he filed an appeal two days' prior to the rest period as advised by the Doctor and hence, the appeal was dismissed. The reading of the impugned judgment does not show this fact. The reading of the judgment shows that the appellant had filed the appeal within the period of rest advised by the Doctor. The Court has rejected the appeal on the ground that if the reason mentioned by the Doctor was correct and if the petitioner herein had to take physical and mental rest until 15.11.2006 he would not have filed the appeal during the rest period. Hence, the Court has observed that “the appeal ought to have been filed after 15.11.2006”. The meaning sought to be put by the petitioner cannot be read into aforesaid line as the Court has later observed that the act of the petitioner having filed the first appeal on 13.11.2006, before the three week period ended on 15.11.2006, shows that the appellant No.11 4 (the petitioner herein) was “very well moving outside his house and in fact he travelled from Mapusa to Panaji on 13.11.2006 for swearing the affidavit and filing the appeal which is within the period of three weeks as advised by the Doctor. Thus the action on the part of the appellant clearly shows that he was very much fit to move out of the house and even travelled upto Panaji for filing the appeal.” 5. However, it is contended on behalf of the respondents that the writ petition does not lie from the order refusing to condone delay in filing the first appeal as under such order the first appeal itself must be taken to be disposed of. Hence, it is contended that a Second Appeal should have been filed. 6. This question of law has been settled by the Supreme Court in the case of Shyam Sundar Sarma Versus Pannalal Jaiswal reported in 2005(1)SCC 436. The judgment has considered earlier decisions of the Supreme Court stating same law in the cases of Mela Ram and Sons V. CIT reported in 1956 SCR 166 and Sheodan Singh V. Daryao Kunwar reported in AIR 1966 SC 1332. These judgments considered the cases of appeals being filed which were 5 otherwise barred by law of limitation and in which the applications for condonation of delay in filing such appeals were rejected and the appeals were, therefore, dismissed as time barred. It was held that the order dismissing the appeal as time barred was one passed in an appeal and that it was a “decision” in appeal. The ruling in the case of Sheodan Singh (supra) has been recited in that judgment to show that the dismissal of the appeal on even some preliminary ground like limitation or even default in printing, must be held to be such dismissal, when it confirms the decision of the Trial Court on the merits itself. Then it will amount to the appeal being heard and finally decided on merits whatever may the ground for dismissal of appeal. 7. In para 10 of the judgment it has been specifically contended that the appeal presented out of time was nevertheless an appeal in the eye of law for all purposes. An order dismissing the appeal was a decree. That can be subject of second appeal. The judgment considered dismissal of the appeal for reason of the delay in its presentation and held that the dismissal of the application for condoning the delay was in substance and effect a confirmation of the decree appealed against. Hence, it was held to be a decision 6 “in the appeal”. The judgment further considered the case of Calcutta High Court which had not relied upon the judgment in the case of Mela Ram and Sheodan Singh. 8. It is argued on behalf of the petitioner that the decree under Section 2(2) of C.P.C. was the expression of the adjudication which conclusively determined the rights of the parties with regard to all or any of the matters in controversy in the suit. It will include the order for rejection of the plaint, the order for restitution of property except the order from which the appeal from order would lie or dismissal of the suit for default. The learned Advocate on behalf of the petitioner contended that the order in appeal would otherwise be a decree if it determines the rights of the parties with regard to all or any of the matters in controversy in that appeal. One of the matters in controversy in the appeal is the matter relating to limitation period after filing the appeal. The application for condonation of delay conclusively determines that matter in controversy by rejecting the application for condoning the delay. 9. The petitioners' Advocate further drew my attention to various rules of Order 41 of the C.P.C. Rule 3A 7 thereof deals with an application for condonation of delay. The Rule sets out the procedure for filing such an application. It does not specify about the disposal of the appeal finally or otherwise upon the disposal of the application for condonation of delay. 10. The petitioners' Advocate also referred to rule 23 and 23(A) of Order41 of C.P.C. which deals with remand by the Appellate Court. He contended that such an order of remand would otherwise dispose of the appeal. That will tantamount to judgment in appeal with a mere order. Hence, by parity of reasoning he contended that the order disposing of the application for condonation of delay in filing the appeal by rejecting it would also be an order and not the judgment. Though it may dispose of the appeal, as per the Advocate's contention, there would not be a final “decision” on the appeal. Hence, he says that the writ petition will be maintainable from such an order. The aforesaid judgment of the Supreme Court in the case of Shyam Sundar Sarma has fully considered the aspect of dismissal for default. 11. The petitioners' Advocate drew my attention to another judgment of the Supreme Court in the case of 8 Chandi Prasad versus Jagdish Prasad reported in (2004) 8 SCC 724, in which it has been held that when the appeal is dismissed on the ground of delay in filing the appeal and the same is not condoned, the doctrine of merger would not apply so that the judgment of the trial Court cannot be taken to have been merged in the judgment of the Appellate Court. That is necessarily so because such an appeal has not been disposed of on merits of all the issues in the suit. It is disposed of on merits of only one issue being limitation period of filing the appeal. All the matters in issue considered by the appeal Court which the trial Court had considered results in merger. When only the question of limitation is considered by the Appeal Court there can, of course, be no merger of the trial Court's order in the Appeal Court's order. The trial Court's order itself becomes final. Nevertheless such appeal is finally disposed of. Hence, it is a final “decision” of the Court upon the matter in controversy. Hence, essentially the judgment of the Trial Court comes to be final because the appeal was not filed within time. 11. Under the circumstances, it is seen that technically the second appeal would have to be filed since the first appeal has been finally disposed of. However, on the 9 facts of the case before this Court in the writ petition, it is seen that even the case of condonation of delay in filing the first appeal which on merits was sought to be agitated in this petition by the petitioners is not seen to have any merits. Hence, the writ petition is dismissed. SMT. R. S. DALVI, J. SMA