SCA/8021/2008 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8021 of 2008 With SPECIAL CIVIL APPLICATION No. 8022 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? Yes 2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? No 5 Whether it is to be circulated to the civil judge ? No ========================================================= SHANTABEN WD/O JAYANTIBHAI SOMABHAI - Petitioner(s) Versus PATEL BIHARIBHAI DAHYABHAI PATEL & 6 - Respondent(s) ========================================================= Appearance : MR MEHUL S SHAH for Petitioner(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5, 1.2.6,1.2.7 MR SURESH M SHAH for Petitioner(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5, 1.2.6,1.2.7 None for Respondent(s) : 1,3 - 7. MR S.N.SHELAT, LEARNED SENIOR ADVOCATE WITH MR. HARSHADRAY A DAVE for Respondent(s) : 2, MR HARDIK A DAVE for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 16.12.2008 CAV JUDGMENT 1. Rule. Shri Hardik Dave, learned advocate waives service of notice of rule on behalf of the SCA/8021/2008 2/14 JUDGMENT respondents in each of the petition. With the consent of the learned advocates appearing on behalf of the respective parties, the matter is taken up for final hearing today. 2. As common question of law and facts arise in both these petitions, they are being disposed of by this common judgment and order. 3. Both these petitions are filed by the respective petitioners original defendants-opponents of Regular Civil Appeal Nos. 15 of 2008 and 16 of 2008 challenging the common order passed by the learned Principal District Judge, Anand dated 8.1.2008 passed below Exh. 8 in Regular Civil Appeal Nos. 15 & 16 of 2008, by which the learned Principal District Judge has dismissed the said applications submitted by the respective petitioners herein raising preliminary objection as to appeals have been filed beyond the period of statutory limitation. 4. Being aggrieved and dissatisfied by the common judgment and order passed by the learned 2nd Additional Senior Civil Judge, Anand dated 2.1.2008 passed in Regular Civil Suit No. 648 of 1993 (old Special Civil Suit No. 304 of 1979) and Regular Civil Suit No. 649 of 1993 (old Special Civil Suit No. 128 of 1975) respective respondents herein-original appellants SCA/8021/2008 3/14 JUDGMENT -plaintiffs have preferred aforesaid two Regular Civil Appeal Nos. 15 & 16 of 2008 on 7.2.2008. As according to the petitioners -defendants the judgment was delivered on 2.1.2008 by the learned trial Court and the certified copy of the judgment was applied on the very same day i.e. 2.1.2008 and after getting certified copy thereof on 4.1.2008, the aforesaid appeals came to be instituted on 7.2.2008 i.e. after the period of limitation, which according to the petitioners expired on lapse of 30 days plus time spent in getting the certified copy of the judgment required to be produced along with memo of appeals i.e. on 3.2.2008 and, therefore, the respective petitioners submitted the application Exh. 8 in aforesaid to Appeals raising preliminary objection, as to appeals have been filed beyond the period of statutory limitation. Therefore, it was requested to dismiss the aforesaid two appeals by holding that the same were being time barred. 5. The aforesaid applications were opposed by the respondents herein-original appellants- plaintiffs by submitting that the decree was ready on 7.1.2008 and, therefore, considering the provision of Order 20 Rule 6(A) of the Code of Civil Procedure and Order 41 Rule 1 of the Code of Civil Procedure, the appeals are filed within the period of limitation, therefore, it SCA/8021/2008 4/14 JUDGMENT was requested to dismiss the said application. Learned Principal District Judge, Anand by impugned common order dated 8.1.2008 below Exh. 8 in aforesaid two Appeals dismissed the said applications by holding that when the copy of the decree was ready on 17.1.2008 the time taken in preparation of the decree is to be excluded and, therefore, the appeals are preferred/instituted within the period of limitation. Being aggrieved and dissatisfied with the common order passed by the learned Principal District Judge, Anand below Exh. 8 in aforesaid Regular Civil Appeals No. 15 & 16 of 2008 in dismissing the said applications and holding that the Appeals are preferred within the period of limitation, the petitioners herein original opponents-defendants have preferred the present Special Civil Application under Section 227 of the Constitution of India. 6. Shri S.M. Shah, learned advocate for the petitioners has vehemently submitted that the learned Principal District Judge has materially erred in holding that both the appeals are preferred within the period of limitation. It is submitted that learned Appellate Court ought to have read Order 20 Rule 6(A) of the Code with Order 41 Rule 1 of the Code together and ought not to have considered both the provisions in isolation. It is further submitted that the SCA/8021/2008 5/14 JUDGMENT learned Appellate Court has committed an error in not properly considering that for instituting the appeal, certified copy of the judgment is required to be produced and as such, only time spent in obtaining certified copy of the judgment can be added and not obtaining certified copy of the decree and for calculating the period of limitation, the period of limitation is to be considered accordingly. 7. Both these petitions are opposed by Shri S.N. Shelat, learned Senior Advocate appearing on behalf of the respondents. It is submitted that as per Order 41 Rule 1 the Memorandum of Appeal shall be accompanied by a copy of the judgment and as per Order 20 Rule 6(A)(2) when the appeals are preferred along with copy of the judgment and thereafter the decree is made available and /or decree is drawn the judgment shall cease to have effect of decree and from that day the period of limitation starts and / or during the period the decree is not drawn the same is to be excluded for the purpose of considering the period of limitation. Therefore, it is submitted that when the decree was ready on 17.1.2008, considering the aforesaid appeals instituted on 6.2.2008 were within a period of limitation. 8. Shri S.N. Shalat, learned Senior Advocate SCA/8021/2008 6/14 JUDGMENT appearing for the respondents has submitted that even otherwise, considering the impugned order now the petitions will be heard on merits and therefore, no injustice will be caused to the petitioners. Relying upon the decision of the Hon'ble Supreme Court in the case of F.N. Roy Vs. Collector of Customs, Calcutta and Others reported in AIR 1957 SC 227 (Head Note C), it is submitted that as held by the Hon'ble Supreme Court, Court will not interfere with the order unless the Court is satisfied that there is a failure of justice. 9. Shri S.N. Shelta, learned Senior Advocate appearing for the respondent has further submitted that even otherwise, this is a petition under Article 227 of the Constitution of India and there is no jurisdictional error committed by the learned Appellate Court. Relying upon the decision of the Hon'ble Supreme Court in the case of Bhawarlal Bhandari Vs. Universal Heavy Mechanical Lifting Enterprises reported in (1999) 1 SCC, 558 (para 10) it is submitted that limitation is a question of law and not “of jurisdiction” and, therefore, it is requested to dismiss the present Special Civil Application. 10.In reply, Shri S.M. Shah, learned advocate for the petitioners has relied upon the decision of SCA/8021/2008 7/14 JUDGMENT the Hon'ble Supreme Court in the case of Manindra Land and Building Corporation Ltd., Vs. Bhutnath Banerjee and Others reported in AIR 1964 SC, 1336. It is submitted that as held by the Hon'ble Supreme Court in the said decision that the proposition that an erroneous decision on a question of limitation involves the question of jurisdiction applies to cases in which the law definitely ousts the jurisdiction of the Court to try a certain dispute between the parties. Therefore, it is submitted that the decision of question of limitation involves the question of jurisdiction in the present case. Shri S.M. Shah, learned advocate for the petitioners has also relied upon the decision of the Hon'ble Supreme Court in the case of Pandurang Dhondi Chougule and Others Vs. Maruti Hari Jadhav and Others reported in AIR 1966 SC 153. It is submitted that as observed by the Hon'ble Supreme Court in the said decision plea of limitation and the plea of res-judicata are pleas of law which tries the proceedings. A finding on these pleas in favour of the party which raises them would oust the jurisdiction of the Court. An erroneous decision of these pleas, therefore, can be said to be concerned with questions of jurisdiction falling within the purview of Section 115 of the Code of Civil Procedure. It is also further submitted by Shri S.M. Shah, learned advocate for the petitioners SCA/8021/2008 8/14 JUDGMENT that even as per the Section 3 of the Limitation Act, question of limitation is a question of jurisdiction. It is further submitted that even as held by the Hon'ble Supreme Court in the case of Food Corporation of India and Others Vs. M/s. Babulal Agrawal reported in AIR 2004 SC 2926, even considering the Section 3 of the Limitation Act it is the duty of the Court to see as to whether the suit is within the period of limitation or not. Shri S.M. Shah, learned advocate for the petitioners has also relied upon the decision of the Privy Council in the case of Maqbul Ahmad and others vs. Onkar Pratap Narain Singh and Others reported in 1935 Privy Council, 85, in support of his above submissions and relying upon the aforesaid decisions, it is requested to allow the present Special Civil Application. 11.Heard the learned advocates appearing on behalf of the respective parties. As stated hereinabove, the judgment and decree against which the appeals came to be preferred, came to be passed by the learned trial Court on 2.1.2008 and on the very same day the application was submitted to get certified copy of the said judgment and decree, it was received by the respondent original appellant on 4.1.2008. It is also an admitted position that the respondent -original appellant preferred respective appeals SCA/8021/2008 9/14 JUDGMENT along with certified copy of the judgment on 6.2.2008 beyond period of 30 days from the date of receipt of the certified copy of the judgment. Decree was ready on 17.1.2008 and, therefore, it is the contention on behalf of the respondents herein original appellants that the limitation period would start from 17.1.2008 and not from 2.1.2008 and / or 4.1.2008 as alleged. In support of the above submission, Shri S.N. Shelat, learned Senior Advocate appearing on behalf of the respondent original appellant has relied upon the Order 20 Rule 6(A) and Order 41 Rule 1 of the Code of Civil Procedure. It is submitted that as provided under Order 20 Rule 6(A)(2) an appeal may be preferred against the decree without filing of the copy of the decree and in such a case the copy of the judgment made available to the party by the Court shall for the purpose of Rule 1 Order 41 be treated as a decree, but as soon as the decree is drawn, judgment shall cease to have effect of a decree for the purpose of execution or for any other purpose. It is submitted that, therefore, as soon as the decree is made available and /or is drawn, the judgment shall cease to have effect of decree and, therefore, limitation period would start from drawing the decree. It is also further submitted that as per the Order 41 Rule 1 of Code of Civil Procedure every memorandum of appeal shall be accompanied by a copy of SCA/8021/2008 10/14 JUDGMENT judgment, therefore, reading both the aforesaid provisions combined appeal along with the certified copy of the judgment is maintainable even without the decree and even the same may be treated as a decree for the purpose of Rule 1 Order 41 and as soon as decree is drawn the said judgment shall cease to have effect on decree and, therefore, it is submitted that moment the decree is drawn on 17.1.2008 original judgment produced along with appeal memo cease to be decree and the limitation period would start from drawing the decree i.e. 17.1.2008. The aforesaid submission has no substance and is required to be rejected outright. Once the appeal is preferred along with copy of the judgment, the same is permissible as per Order 41 Rule 1 of the Code of Civil Procedure and the said judgment can be treated as a decree as per Order 20 Rule 6(A)(2) of the Code of Civil Procedure and, therefore, the limitation would start from the receipt of the certified copy of the judgment. However, moment the decree is drawn, in that case, said judgment shall cease to have effect of a decree for the purpose of execution or for any other purpose. Therefore, on bare reading of Order 20 Rule 6(A) (2), the said judgment shall cease to have effect for the purpose of execution or for any other purpose and not for the appeal under Order SCA/8021/2008 11/14 JUDGMENT 41 Rule 1, as the appeal is already preferred along with certified copy of the judgment which for the purpose of preferring the appeal was required to be treated as a decree. Under the circumstances, the submission on behalf of the respondent original appellant that considering Order 20 Rule 6(A)(2) of the Code of Civil Procedure, the limitation period would start from drawing the decree cannot be accepted. There is another reason not to accept such a submission is that there cannot be two different period of limitation. One considering the receipt of the certified copy of the judgment and second from drawing of the decree which might have been drawn subsequently. Moment the appeal is preferred along with the certified copy of the judgment without waiting for the drawing of the decree, in that case, the limitation period would start from the date of receipt of the certified copy of the judgment, which in the present case would be from 4.1.2008 and considering the period of limitation of 30 days as provided under Article 116 of the Limitation Act, appeals were required to be preferred on or before 4.2.2008 and admittedly the appeals have been preferred on 6.2.2008 / 7.2.2008 and therefore, beyond the period of limitation. 12.Now, so far as the submission on behalf of the respondent original plaintiff that this is a SCA/8021/2008 12/14 JUDGMENT petition under Article 227 of the Constitution of India and unless there is a jurisdictional error committed by the learned Appellate Court, this Court should not interfere with the said order. Learned advocate for the respondent has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Bhawarlal Bhandari(Supra) in support of his submission that the question of limitation is question of law but not jurisdiction. On the other hand, learned advocate for the petitioner has relied upon the decisions in the case of Manindra Land and Building Corporation Ltd., (supra) and Pandurang Dhondi Chougule and Others (supra). As held by the Hon'ble Supreme Court in the case of Manindra Land and Building Corporation Ltd., (supra) an erroneous decision on a question of limitation involves the question of jurisdiction applies the cases in which the law definitely ousts the jurisdiction of the Court to try a certain dispute between the parties. It is also held by the Hon'ble Supreme Court in the case of Pandurang Dhondi Chougule and Others (supra) the plea of limitation and plea of res-judicata is plea of law and finding on the said pleas in favour of the party which raises them would oust the jurisdiction of the Court. Even as per Section 3 of the Limitation Act question of limitation is a question of jurisdiction and as held by the SCA/8021/2008 13/14 JUDGMENT Hon'ble Supreme Court in the case of Food Corporation of India and Others (supra) it is the duty of the Court to see as to whether the suit is within the period of limitation or not. Considering above,it cannot be said that the question of limitation is not a question of jurisdiction and, therefore, this Court should not interfere with the impugned order, in a petition under Article 227 of the Constitution of India. 13.So far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of F.N. Roy (supra) to the effect that Court will not interfere with unless there is a failure of justice is concerned it is required to be noted that impugned order passed by the learned Appellate Court is on wrong interpretation of law and holding that the appeals are within the period of limitation . The present Special Civil Application is not against the order passed by the learned Appellate Court in condoning the delay and therefore, but is on wrong interpretation of law and therefore, whether there is a failure of justice or not is required to be considered in the fact situation. As stated above, the learned Appellate Court has committed a jurisdictional error in entertaining the appeals which were filed beyond the period of limitation, and, therefore, the same deserve SCA/8021/2008 14/14 JUDGMENT to be quashed and set aside. 14.For the reasons stated above, it is to be held that the appeals preferred by the respondents herein original appellants were beyond the period of limitation and, therefore, impugned orders holding that the said appeals were preferred within the period of limitation deserve to be quashed and set aside and are accordingly quashed and set aside. Still, it will be open for the respondents original appellants to submit an appropriate application before the learned Appellate Court to condone the delay in preferring the aforesaid appeals and as and when such applications are made and proper sufficient ground is made out, the same can be considered by the learned Appellate Court in accordance with law and on merits for which this Court has not expressed any opinion on merits. Rule is made absolute in each of the petition. In the facts and circumstances, there shall be no order as to costs. (M.R.SHAH,J.) kaushik