Hafiz Mohammad Ismail v. Shafaat Husain

Mootham, J.:— This is an application for the revision of an order rejecting an application under Section 5 of the Indian Limitation Act.

2. The applicant filed a suit for the ejectment of the opposite parties from certain property and for damages. The suit was in part decreed and in part dismissed, and against that decree the applicant appealed. The last day for the filing of the appeal was January 4, 1950, but the appeal was in fact filed two days later, namely, on January 6.

3. It was then accompanied by an application under Section 5 of the Indian Limitation Act, supported by an affidavit, praying that the appeal be admitted on the ground of the applicant's illness. That application was on the following day, the 7th January, summarily dismissed by the learned District Judge in Chambers without hearing the applicant or his counsel. No order was however made dismissing the appeal.

4. Mr. H.P Gupta, who appears for the opposite parties, raises the preliminary objection that no revision lies as there is no “case decided” within the meaning of Section 115 of the Code of Civil Procedure. The question of what constitutes a “case decided” has been considered on a number of occasions by this Court, but as was pointed out in Ramzan Ali v. Sahtu Bibi 1948 A.L.J 43 F.B. no conclusive test to determine that question has or probably can be laid down. Each case must be considered as it arises but it is material to consider, although it may not be conclusive, whether the order which is in question is one which is made in proceedings which are distinct and separate from the main suit and whether it is an order which may, under Section 105, Sub-section (1) of the Code of Civil Procedure, be challenged in an appeal from the decree which is passed in the main suit: see Gupta & Co. v. Kirpa Ram Bros. 57 All. 17 F.B.; Ramzan Ali's case.3

5. There is, no doubt, that an application under Section 5 of the Limitation Act which accompanies an appeal filed beyond time is a matter which is separate and distinct from the latter. That was so held by a Full Bench of this Court in Shahzadi Begum v. Alakh Nath I.L.R 57 All. 983 F.B. in which it was pointed out that an order dismissing the application under Section 5 does not involve an automatic dismissal of the appeal. And it appears to me to be no less clear, on the authority of Radha Mohan Dutt v. Abbas Ali Biswas I.L.R 53 All. 612 F.B., that an order dismissing an application under Section 5 of the Limitation Act cannot subsequently be challenged in a second appeal from the decree dismissing the appeal on the ground that it was filed beyond time. An order under Section 105(1) of the Code can only be questioned in appeal if it is an order ‘affecting the decision of the case’, and in Radha Mohan Dutt's case it was held that the words ‘affecting the decision of the case’ are to be construed in the sense of affecting the decision of the case on the merits. In that case an order setting aside an ex parte decree was held not to affect the decision on the merits as it did not determine the merits, but merely ensured or was a condition precedent to the rehearing or determination of the suit on the merits. Similarly it appears to me that an order under Section 5 of the Limitation Act determining whether the applicant had sufficient cause for not preferring his appeal within the statutory period has no relation to the merits of the appeal itself. Mr. Gupta has drawn my attention to the case of Gajadhar Bhagat v. Moti Chand Bhatat A.I.R 1941 Pat. 108., a decision of the Patna High Court, in which the Court, in an appeal from a decree dismissing an appeal on the ground that it was filed after the expiry of the period of limitation, held that there was sufficient cause for the appeal not having been filed in time. The question whether the order which had been made by the lower appellate court rejecting an application by the appellant under Section 5 of the Limitation Act was an order which affected the decision of the case within the meaning of Section 105(1) of the Code was not raised or discussed, and in any event I am bound to follow the decisions of this Court.

6. In the circumstances, therefore, I am of opinion that an order rejecting an application under Section 5 of the Limitation Act is a “case decided”. The question which then arises is whether, as is contended in this case, the learned District Judge in rejecting the application acted in the exercise of his jurisdiction either illegally or with material irregularity, that is to say, whether he acted in breach of some provision of law or committed some error of procedure which is material in that it may have affected the ultimate decision. It is an elementary principle of law that no order shall be passed against a person without giving him an opportunity of being heard, and where that right has been refused the Court has held itself entitled to interefere in revision: see Sato Kuer v. Gopal Sahu 34 Cal. 926.; Bachchu Bai Jerad v. Ibrahim Isaac Motiwala 47 Bom. 11.. In my opinion the order of the learned District Judge disposing of this application in Chambers without notice to the applicant constituted both a material irregularity and a breach of a well established provision of law.

7. I, therefore, allow this application in revision and set aside the order of the learned District Judge. The case will go back to the lower appellate court for determination of the application under Section 5 of the Limitation Act, and in order that this question may be finally disposed of notice will issue not only to the applicant but also to the opposite parties.

8. Application allowed.