1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B.Civil Writ Petition No. 1938/2008 All Panchas Kumawatan through representatives Bhanwarlal and Ors. Vs. State of Rajasthan and Others ......... Date of Order : 12/05/2008 P R E S E N T HON'BLE MR. JUSTICE H.R.PANWAR Mr. Sajjan Singh for the petitioners. Mr. Rajesh Choudhary for the respondent No.2. Mr. O.P.Boob, Addl. Govt. Counsel for State. BY THE COURT Mr. Rajesh Choudhary appears for the respondent No.2 and Mr. O.P.Boob, Additional Govt. Counsel appears for the respondent State. The service is therefore, complete. By the instant writ petition under Articles 226 and 227 of the Constitution of India, the order Annex.5 dated 29.7.2005, Annex.6 dated 14.2.2007 and order dated 7.2.2008 Annex.7, passed by respondent No.4 Assistant Collector and 2 Sub-Divisional Officer, Rajsamand, the Board of Revenue respondent No.3 respectively have been challenged. I have heard learned counsel for the parties. Carefully gone through the orders impugned. It appears that the respondent No.2 filed a mutation appeal before the respondent No.4 challenging the mutation entered into in favour of the petitioners. The appeal was filed on 24.11.1997. The notices were served on the petitioner- respondents. However, the petitioner-respondents filed preliminary objection on 24.8.99 stating therein that the suit is pending before the competent Revenue Court. However, the question of period of limitation was not challenged while raising the preliminary objection on 24.8.99. Almost after seven years from filing of the appeal, when the appeal was to be finally heard, at this stage, the petitioners filed an application before the respondent No.4 to decide the question of limitation as the appeal has been filed belatedly and point of delay in filing appeal be decided first and then to hear the appeal. Since the appeal was old enough as it was pending for over seven years, the respondent No.4 vide order dated 29.7.2005 directed that the application under Section 5 of the Limitation Act for condonation of delay and the appeal, will be heard simultaneously. That 3 order has been challenged by the petitioners by way of a revision before the respondent No.3 Board of Revenue. The Board of Revenue vide order dated 14.2.2007 dismissed the revision petition filed by the petitioners. Against that order, the petitioners preferred a review petition before the Board of Revenue, Ajmer respondent No.3 which also came to be dismissed vide order Annex.7 dated 7.2.2008. Hence this writ petition. It is contended by learned counsel for the petitioners that the appeal can only be heard if the delay in filing an appeal is condoned and so far the respondent No.4 has neither considered nor decided the application under Section 5 of the Limitation Act and therefore, the respondent No.4 may be directed to decide the application under Section 5 of the Limitation Act first and thereafter hear the appeal on merit. Normally, if the appeal is barred by period of limitation and is filed alongwith the application under Section 5 of the Limitation Act seeking condonation of delay, then the application under Section 5 of the Limitation Act is to be heard first so that whether an appeal can be heard on merit or not if filed beyond the period of limitation can be decided first. But in the instant case, in the peculiar facts and circumstances of the 4 case and the fact that no such objection was raised by the petitioners for a period of about seven years from the date of filing of the appeal and when the appeal was to be finally heard, such objection was raised and it cannot be said that the question of limitation goes to the root of the jurisdiction of the Court. Even if the appeal is filed beyond the period of limitation, the right to appeal does not extinguished. Learned counsel for the petitioners has relied on a decision of Hon'ble Supreme Court in Gagandeep Pratishthan Pvt. Limited and Others Vs. M/s Mechano and another AIR 2002 SC 204. In that case, learned counsel for the appellants therein questioned the jurisdiction of the High Court to make the impugned orders at the threshold without deciding the question of delay in filing the appeal as well as the objections as to the maintainability of the appeal which according to the learned counsel was raised by the appellants therein. According to learned counsel since the question of maintainability goes to the root of the jurisdiction of the Court to entertain the appeal as well as to pass the impugned orders the same are liable to be set aside. However, in view of the peculiar facts of that case without going into the merits of the contentions raised by the counsel for the appellants therein, the Hon'ble Supreme Court observed as under :- “We think it is just and fair that we should not at this 5 point of time interfere with the impugned order though the High Court could have avoided passing such orders in proceedings where the maintainability itself was being seriously questioned. Be that as it may, we at this stage think it appropriate that the High Court should consider the question of condonation of delay and the objection of the appellants herein in regard to maintainability of the appeal first, before proceeding with the appeal any further. We also think it to be just and proper that any further interim orders if necessary in the appeal before the High Court in regard to the suit property should be made only after deciding the question of delay and maintainability of the appeal and the order already made should be confined to the appointment of a Receiver and filing of his report only, meaning thereby that the impugned order be confined to the appointment of receiver for the purpose of filing his report as directed by the Court and nothing beyond that, at this stage.” In Messrs. Mela Ram & Sons Vs. Commr. Of Income Tax, Punjab AIR 1956 SC, 367, the Hon'ble Supreme Court held that but the question still remains whether an appeal which is filed beyond the period of limitation is, in the eye of law, no appeal unless and until there is a condonation of delay, and that, in consequence, an order passed thereon cannot be held to be passed in appeal so as to fall within S. 31. It was further held that it is well established that rules of limitation pertain to the domain of adjectival law, and that very operate only to bar the remedy but not to extinguish the right. An appeal preferred in accordance with S. 30 (1) must, therefore, be an appeal in the eye of law, though having been presented beyond the period mentioned in S. 30 (2) it is liable to be dismissed “in limine”. 6 There might be a provision in the statute that at the end of the period of limitation prescribed, the right would be extinguished, as for example, S. 28, Limitation Act, but there is none such here. Learned counsel appearing for the respondents has relied on a decision of this Court in Urban Improvement Trust Vs. Poonam Chand 1998 RRD, 319 wherein this Court held that now it must be taken as well settled principle of law that before rejecting applications u/s 5, and dismissing appeals as time- barred, Courts of law are required to put a glance as a condition precedent on merits of appeals and unless appeals are found to be hopelessly devoid of merits, ordinarily efforts should be made to decide appeals on merits. Failure to do so in the present appeal by learned lower appellate court has resulted in miscarriage of justice and as such, its judgment and decree under appeal is liable to be set aside. Keeping in view the two decisions of Hon'ble Supreme Court referred herein above, in my view, the court below fell in error in declining to hear and decide the application seeking condonation of delay first and posting the matter for final hearing of the appeal itself. In this view of the matter, the orders impugned cannot sustain and are liable to be set aside. 7 Consequently, the writ petition is allowed. The orders impugned are set aside and the respondent No.4 is directed to first hear and decide the application seeking condonation of delay under Section 5 of the Limitation Act filed by the respondents keeping in view the merit of the case, within a month from the date of production of certified copy of this order and thereafter if the delay is condoned to hear and decide the appeal itself within one month therefrom. There shall be no order as to costs. (H.R.PANWAR), J. rp 8 S.B.Civil Misc. Stay Petition No. 3454/08 In S.B.Civil Writ Petition No. 1938/2008 Date of order : 12/05/2008 HON'BLE MR. JUSTICE H.R.PANWAR Mr. Sajjan Singh for the petitioners. Mr. Rajesh Choudhary for the respondent No.2. Mr. O.P.Boob, Addl.Govt. Counsel for respondent State. Since the main writ petition itself has been allowed, the stay petition stands disposed of. (H.R.PANWAR), J. rp