RSA No.1511 of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1511 of 2004 Date of decision: .2008 Ram Kishan Kaura ......Appellant Versus Jatinder Kumar Kansal and others ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Ram Kishan Kaura, appellant-in-person. Rakesh Kumar Garg, J . This is plaintiff's second appeal whereby he has challenged the judgment and decree of the Lower Appellate Court dated 21.2.2003 dismissing his appeal challenging the judgment and decree of the trial Court dated 9.10.1996 and review application No.32/5 of 1996 decided on 18.11.1998, dismissing his suit for possession of the property in dispute. Brief facts of the present case of the plaintiff, as alleged, are that he is a co-parcener in the Mitakshara Joint Hind Family of late Baij Nath and Harcharan Dass etc. and has got a legal right and interest in the suit property which was constructed by his grandfather Sh. Shiv Dass, in the year 1920. This property was the subject matter of various litigations regarding tenancy of Shish Ram from 1972 to 1981 and subsequently on the title between the present parties and the case was dismissed in limine by the Hon'ble Apex Court. The plaintiff has claimed that the defendants are trespassers and that the gift deed of 1958 as well as sale deed of 1973 does not create any legal right in favour of widow Paramjot to execute gift deed in favour of Krishna Devi, her daughter. The plaintiff claimed that fresh cause of action arose to him to file the suit after decision of this RSA No.1511 of 2004 2 Court dated 20.2.1990 and status of the defendants was declared as that of trespassers. So, the plaintiff prayed for possession of the shop in question as Paramjot has no right to make the gift deed of the property as well as Smt. Krishna Devi has no right to sell the same because Paramjot has very limited rights in the suit property. Hence, the suit was filed by the plaintiff. The suit was contested by the defendants on the ground of principle of res judicata and that gift deed has already been upheld by the Courts and Paramjot became the full owner of the property who has gifted the same in favour of Smt. Krishna Devi who further sold the same to defendant No1. Earlier, a suit for declaration and permanent injunction regarding disputed land was dismissed. The property in dispute was never Joint Hindu Property as it was exclusively owned and possessed by Krishna Devi which she got by way of gift deed from her mother. It was further stated that Krishna Devi has rightly sold the property to defendant No.1 as she was the absolute owner of the property. So, the defendants prayed for dismissal of the suit. The trial Court vide impugned judgment and decree dated 9.10.1996 dismissed the suit. The plaintiff filed Review Application No.32/5 of 1996 under Section 114 (A) read with Order 47 rule 1 Section 151 CPC. The said review application was dismissed vide order dated 18.11.1998 by Sh. M.C. Mehra, Additional Civil Judge (Sr. Divn.), Kurukshetra. Feeling aggrieved against the aforesaid judgment and decree dated 9.10.1996 and review order dated 18.11.1998, the plaintiff filed a consolidated appeal before the Lower Appellate Court. Along with the appeal, an application for condonation of delay of 18 days in filing the appeal was filed alleging therein that the applicant-appellant is a practising RSA No.1511 of 2004 3 lawyer in the Hon'ble Supreme Court and he has been suffering from eye cataract and for that purpose, he was taking treatment and was also busy in taking examination for Supreme Court Advocate on record. On the aforesaid grounds he prayed for condonation of delay of 18 days in filing the appeal. The said application was contested by the defendant- respondents by filing reply contending therein that the appeal is hopelessly time barred as the judgment and decree was passed by the trial Court on merits on 9.10.1996 and not on 18.11.1998 and therefore, the delay of more than two years has occurred in filing the appeal which has not been explained. It was also contended that even otherwise, the appeal does not lie against the order of review dated 18.11.1998 and therefore, there is no reason for condoning the delay of 18 days as stated by the plaintiff- appellant. The Lower Appellate Court vide impugned judgment and decree dated 21.2.2003 held that the consolidated appeal against the judgment and decree dated 9.10.1996 and review order dated 18.11.1998 passed by the trial Court is hopelessly time barred. The Lower Appellate Court also held that in view of the provisions of Order 43(1) (w) CPC, the appeal against the review order dated 18.11.1998 is not maintainable. This is how the present appeal has been filed by the plaintiff challenging the aforesaid judgment and decree of the Lower Appellate Court. While admitting the appeal vide order dated 15.3.2007, this Court framed the following substantial questions of law for consideration:- “(1) Whether in the facts and circumstances of the case learned First Appellate Court was right in dismissing the appeal of the plaintiff-appellant on the ground that the same was barred by limitation? (2) Whether in the facts and circumstances of the case learned First Appellate Court was right in RSA No.1511 of 2004 4 dismissing the appeal of the plaintiff on the ground that the same was not maintainable?” It is relevant to mention here that respondents No.1, 2, 4 and 6 have not appeared despite service and they have been ordered to be proceeded against ex parte by separate order. The names of respondents No.3 and 5 have been deleted from the memo. of parties on the request of the appellant. I have heard the appellant who has appeared in person and is stated to be an Advocate of the Supreme Court Bar. Under Section 96 of the Civil Procedure Code, an appeal is provided from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. Undisputedly, the order rejecting review is not a decree. Section 104 and Order 43 Rule 1 of CPC also provide an appeal from the orders passed by the Court. However, order rejecting review application does not find mention in the list of appealable orders as enumerated in the aforesaid provisions of the Civil Procedure Code. Thus, there is no provision in the Civil Procedure Code under which an appeal against the order of rejection of review application is maintainable. Even the appellant was unable to point out how the appeal against the review order was maintainable before the Lower Appellate Court. Thus, the appeal was not maintainable against the review order in view of the provisions aforesaid. Faced with this situation, the appellant has argued that in any case, considering his appeal before the Lower Appellate Court against the judgment and decree of the trial Court dated 9.10.1996, the Lower Appellate Court should have condoned the delay and heard his appeal on merits as under Section 14 of the Limitation Act he was entitled to the RSA No.1511 of 2004 5 deduction of the period for computing the limitation for filing the appeal for the period which he spent pursuing his remedy of review before the trial Court w.e.f. 23.11.1996 upto 18.11.1998 and there were sufficient reasons for condoning the delay in filing the appeal before the Lower Appellate Court. There is considerable force in the argument raised by the appellant. There is no dispute that the appellant was pursuing his remedy of review for the period w.e.f. 23.11.1996 to 18.11.1998 and this period could have been deducted while condoning the delay in filing the appeal against the judgment and decree dated 9.10.1996 of the trial Court before the Lower Appellate Court. However, this plea of the appellant cannot be accepted as there is no such averment made by the appellant in his application for condonation of delay filed before the Lower Appellate Court and in the absence of such a plea, the Lower Appellate Court has rightly dismissed the appeal filed by the plaintiff-appellant being hopelessly time barred as there was an unexplained delay of more than two years in filing the said appeal. The appellant was unable to point out any illegality or infirmity in the judgment and decree of the Lower Appellate Court. Thus, both the substantial questions of law as raised are answered in the affirmative i.e. against the appellant and in favour of the respondents. Consequently, the instant appeal is dismissed. , 2008 (RAKESH KUMAR GARG) ps JUDGE RSA No.1511 of 2004 6 RSA No.1511 of 2004 7