IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 2327 (M/S) of 2011 Kallu S/o Shakoor Ahmad - Petitioner Versus Naseem Ahmed S/o Ali Hasan - Respondent. Mr. Siddharth Singh, Advocate for petitioner. Mr. Nagesh Agarwal, Advocate for respondent. [Hon’ble B.S. Verma, J. (Oral)] By means of this petition the petitioner has sought a writ in the nature of certiorari quashing the judgment dated 14-09-2011 passed by Additional District Judge, Roorkee in Misc. Civil Appeal No. 26 of 2009 Naseem Ahmad Vs. Kallu and further to dismiss the appeal as not-maintainable. Briefly stated the facts of the case giving rise to this petition are that the appeal was filed against the order dated 12.11.2009 passed by Civil Judge (S.D.) Roorkee in Misc. Case No. 16 of 2009, whereby the application 4-C/2 filed U/S 5 of Indian Limitation Act was rejected. According to respondent the delay in filing the application U/O 9 Rule 13 C.P.C. to set aside the exparte decree was approximately of 19 days. The trial court after hearing on application filed U/S 5 of Indian Limitation Act, also commented on the merit of application U/O 9 Rule 13 C.P.C. and has observed that the facts mentioned for condonation of delay are ambiguous, therefore, the delay condonation application was rejected and the file was consigned to record room. Aggrieved by the order the petitioner preferred misc. civil appeal. The learned appellate court after considering the judgment of Apex Court in the case of Ram Het Singh and others v. Dy. Director of Consolidation Mathura, reported in 2000(9) R.D. 183; Madan Pal Vs. VI Addl. District Judge, Meerut, 1995 (1) ARC 432 at 433 (All); and the case reported in A.I.R. 1987 SC 1353. The court has held that ‘everydays’ delay must be explained’ does not mean that pedantic approach should be made and the doctrine must be applied in a rational commonsense and pragmatic manner. The expression ‘sufficient cause’ should be construed liberally. The appellate court 2 also considering the fact that medical certificate was also annexed with the delay condonation application, condoned the delay and directed the trial court to proceed further. I have heard learned counsel for parties and perused the record. Learned counsel appearing on behalf of petitioner has contended that the appeal under Order 43 Rule 1 (d) C.P.C. is not maintainable against the rejection of delay condonation application filed in support of application for setting aside exparte decree in view of the ratio laid down by the Division Bench of Allahabad High Court in the case of Shiv Sharan Lal Gupta and another Vs. Smt. Usha Kiran Gupta and others, reported in 2008(4) ALR 95 (D.B.). In the aforesaid judgment the Division Bench of Allahabad High Court following the Full Bench judgment of Calcutta High Court reported in AIR 1976 Calcutta 415 has held that if the application U/S 5 Limitation Act was rejected resultant order cannot be a decree and the order rejecting the memorandum of appeal is merely an incidental order. In reply thereto the learned counsel for respondent has placed reliance upon the judgment of Apex Court in the case of Shyam Sunder Sarma vs. Pannalal Jaiswal and others, reported in AIR 2005 Supreme Court 226, wherein the Apex Court in para –11 has held as under:- “learned counsel for the appellant relied on the Full Bench decision of the Calcutta High Court in Mamuda Khateen and others v. Beniyan Bibi and others (AIR 1976 Calcutta 415) to contend that an order rejecting a time barred memorandum of appeal consequent upon refusal to condone the delay in filing that appeal was neither a decree nor an appellable order. On going through the said decision it is seen that though the Full Bench referred to the divergent views on that question in the Calcutta High Court prior to the rendering of the decision of this court in Messers Mela Ram and Sons (supra) had not considered the decisions of this court in Raja Kulkarni (supra) and in Messers Mela Ram and Sons (Supra), in coming to that conclusion. In fact it is seen that there was no discussion on that aspect as such, though there was a reference to the conflict of view in the decisions earlier rendered by the Calcutta 3 High Court . Since the ratio of that decision runs counter to the principle laid down by this court in Messers Mal Ram and Sons (supra) obviously the same could not be accepted as laying down a correct law.” In view of above it is quite obvious that the Apex Court has held that the judgment rendered in Messers Chela Ram and sons could not be accepted as lying down a correct law. Learned counsel for respondent has also relief upon the case of Smt. Prem Wati and another vs. Smt. Munni Devi and another reported in (2000) 2 A.W.C. 1099,wherein it has been held following the ratio of the judgment Shyam Sunder Sarma v. Pannalal Jaiswal and others, reported in AUR 2005 SC 226 (supra) has held that if the application for condonation of delay has been rejected in appeal, could be the subject of a second appeal and the appeal is maintainable. Lastly learned counsel for respondent has relied on para-6 of Shankar Ramchandra Abhyankar vs. Krishnaji Dattatraya Bapat, reported in AIR 1970 Supreme Court –1, wherein it has been held as below:- “Now when the aid of the High Court is invoked on the revisional side it is done because it is a superior court and it can interfere for the purpose of rectifying the error of the Court below. Section 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of he High Court as a superior court. It is only one of the modes of exercising power conferred by the Statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense. We do not therefore, consider that the principle of merger of orders of inferior courts in those of superior courts would be affected or would become inapplicable by making distinction between a petition for revision and an appeal.” 4 It is thus clear that if the High Court exercises jurisdiction either in revisional side or appellate side the same cannot be challenged in the higher court. By a perusal of the judgment in hand it shows that no such question has been raised before the appellate court that the appeal is not maintainable. Since the Civil Judge (S.D.) on application U/S 5 of Limitation Act, has also commented on the merit of application U/O 9 Rule 13 C.P.C. and has observed that the facts mentioned for condonation of delay are ambiguous, therefore, the delay condonation application was rejected, hence the appeal under Order 43 Rule 1(d) C.P.C. is maintainable, since the appeal was filed against rejection of delay condonaion application which is filed to condone the delay of application under Order 9 Rule 13 C.P.C. for setting aside the exparte decree. In view of judgments cited above the appeal is maintainable against the order of rejection of application U/S 5 Limitation Act. For the reasons recorded above the writ petition is dismissed in limine. ISB (B.S. Verma, J. ) 03-11-2011 5