Thambi vs Mathew And Anr. on 24 October, 1987

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63
Kerala High Court
Thambi vs Mathew And Anr. on 24 October, 1987
Equivalent citations: AIR 1988 Ker 48
Author: B Menon
Bench: P B Menon, K Sukumaran, P Shamsuddin


JUDGMENT

Balakrishna Menon, J.

1. This second appeal by the plaintiff is against the dismissal of his appeal by the lower appellate court consequent on the dismissal of L A. No. 758/1980 under Section 5 of the Limitation Act, 1963 for condonation of the delay of 3 days in filing the appeal. It comes up before a Full Bench on reference made by Varghese Kalliath J. for the reason that M. P. Memon J. had in C. R. P. No. 318 of 1983 (the decision later reported in (1987) 1 Ker LT 543) declined to follow the decision of a Division Bench of this Court in Chandrika Amma v. Mohammed 1984 Ker LJ 525 : (AIR 1984 Ker 198) in preference to an earlier decision of a Division Bench in Chakkuvarkey v. Devassy Kathanar AIR 1962 Ker 104. M. P. Menon J. had also dissented from the view expressed by Viswanatha Iyer J. in Kunhiraman v. Rossy 1979 Ker LT 718. Kalliath J. in a very illuminating order of reference has dealt with the points of view expressed in the two Division Bench rulings of this court referred to above and has also expressed his Lordship’s view agreeing with the principle laid down in Kunhiraman v. Rossy, 1979 Ker LT 718. Kalliath, J, in his order of reference states :

“I feel that when on a question of law this court speaks in discordant notes through two Division Benches, certainly, it will create difficulties and, to borrow the phraseology used by M. P. Menon, J., it will give a nervous shock to the litigants and the legal profession. Sir Williams Jones says “No man who is not a lawyer would ever know how to act and no lawyer would, in many instances, know how to advise, unless courts are bound by authority”. In such circumstances, I feel that it is more commendable, staid and decorous to refer the matter to a larger Bench than to speculate upon improvements in those precedents which would give not only a nervous shock but also a traumatic neurosis to the litigants and those counsel who are bound to advise their clients on the correct position of law.”

2. Referring to Kunhiraman’s case M. P. Menon, J. stated in Viswambharan v. Parameswaran Asary, (1987) 1 Ker LT 543 at page 551 : —

“In Kunhiraman v. Rossy (1979 Ker LT 718) G. Viswanatha Iyer, J. is seen to have taken the view that when a delay petition is dismissed and the appeal is consequently dismissed as barred, the remedy is to file an appeal against the decree” if that is allowed by law” and take a ground in that appeal that the lower court was wrong in not excusing the delay. My familiarity with the provisions of the CPC is nothing when compared with that of his Lordship; still, I should point out, with respect, that his Lordship’s attention does not appear to have been drawn to the newly introduced provisions of Rule 3A of Order 41 characterising a delayed appeal only as one proposed to be filed.”

The decision of Viswanatha Iyer, J. in Kunhiraman’s case (1979. Ker LT 718) is in conformity with the decision of a Full Bench of this Court in Haji Hassan Rowther v. Bulgheese Beevi, 1971 Ker LT 613 : (AIR 1972 Ker 56). The Full Bench did not agree with the view expressed by Vaidialingam, J. in Kuruvilla v. Rajagopala Iyer, 1966 Ker LT 916 that a revision is maintainable against an order dismissing a petition under Section 5 of the Limitation Act for condonation of delay in filing an appeal and if the revision is allowed the order dismissing the appeal on the ground of delay will have no effect in law. The Full Bench observed :

“In Kuruvilla v. Rajagopala lyer, 1966 Ker LT 916, Vaidialingam, J. has taken the view that when the order dismissing the petition to condone the delay in filing an appeal is interfered with in revision the order of the Judge dismissing the appeal based on the rejection of the petition to excuse delay will be absolutely void and will have no effect in law. We cannot agree. The order dismissing the appeal can be only an illegal order which will have to be set aside only in a second appeal and not in a revision petition.” M. P. Menon, J. has not adverted to the Full Bench decision in Haji Hassan Rowther’s case. The provisions of Rule 3A of Order 41, CPC introduced by the Amendment Act 104 of 1976 in our view do not alter the legal position. The amendment introducing Rule 3A was on the basis of the 14th and 27th reports of the Law Commission. In its 27th reporl the Law Commission recommended :

“In the Fourteenth Report, attention was drawn to the practice which was previously followed of admitting an appeal subject to objections as to limitations being raised at the time of hearing, where the memorandum of appeal was accompanied by a petition seeking condonation of delay under Section 5, Limitation Act. This practice has been disapproved by the Privy Council, which has stressed the expediency of adopting a procedure securing at the stage of admission the final determination (after due notice) of question of limitation affecting the competence of the appeal. Following this advice, the High Courts of Andhra Pradesh, Bombay and Madras have made appropriate amendments to the rule, and the Fourteenth Report recommended that similar amendments be made by other High Courts.

The proposed amendment carries out this recommendation, and follows the Madras Amendment, Order XLI, Rule 1(3) with verbal modifications. The Bombay amendment is contained in Order XLI, Rule 3-A (Bombay).”

The provision was accordingly introduced by the Amendment Act with a view to secure at the stage of admission of the appeal a final determination on the question of limitation. R, 3A of Order 41, CPC reads :

“When an appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period.

(2) If the court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the court before it proceeds to deal with the appeal under Rule 11 or Rule 13, as the case may be.

(3) Where an application has been made under Sub-rule (1), the court shall not make an order for the stay of execution of the decree against which the appeal is proposed to be filed so long as the the court does not, after hearing under Rule 11, decide to hear the appeal.”

It is clear from Sub-rule (1) that there is a proper presentation of the appeal filed out of time if it is accompanied by ah application to condone delay supported by an affidavit setting forth the grounds for the condonation of delay. Sub-rule (2) requires the application to be finally decided by the court before it proceeds to deal with the appeal under Rule 11 or Rule 13, as the case may be. A dismissal of the application for condonation of delay results in the dismissal of the appeal which can only be under Rule 11. Section 3 of the Limitation Act also requires an appeal filed after the prescribed period of time to be dismissed subject to the provisions contained in Sections 4 to 24. Sub-rule (3) of Rule 3A does not render an appeal properly presented under Sub-rule (1), a proposed appeal. Sub-rule (3) in spite of its language would only mean that no stay of the execution of the decree appealed against shall be granted before the court after hearing the appeal under Rule 11 decides to admit the same. An appeal presented out of time is nevertheless an appeal in the eye of law for all practical purposes (vide Musala Annaji Rao v. Boggarapu Papaiah Setty, AIR 1975 Andh Pra 73). The question, whether an appeal properly presented with a petition to condone the delay can be admitted or not, is at the second stage and to reach that stage the application has to be disposed of finally. Section 3 of the Limitation Act also makes it obligatory on the part of the court to dismiss an appeal presented out of time subject, of course, to the provisions of Sections 4 to 24. In a case, where an appeal has been admitted and then dismissed on a preliminary objection raised at the hearing disclosing the fact that the appeal was fi!ed out of time, is it possible to say that the order dismissing the appeal, though on the ground of limitation, is not a decree? The question is whether a dismissal of the appeal after considering an application to condone the delay should be treated differently. An appeal filed out of time is required to be dealt with by the appellate court under Section 3 of the Limitation Act and an order dismissing the appeal is a decree that can be subject of a second appeal as held by the Full Bench in Haji Hassan Rowther’s case (AIR 1972 Ker 56). Sub-rule (4) of Rule 11 of Order 41, CPC requires an appellate court, not being the High Court, dismissing an appeal under Sub-rule (1) to deliver a judgment and a decree is to be drawn up in accordance with the judgment. It is thus clear that the dismissal of an appeal under Order 41, Rule 11 postulates the drawing up of a decree which can be the subject of a further appeal under Order 41, Rule 1 read with Order 42, CPC. Sub-rule(4) of Rule 11 does not dispense with the need of a decree when the High Court dismisses an appeal under Sub-rule (1). The only exception is that it need not deliver a judgment recording its reasons for dismissing the same. It seems 10 us clear that Rule 3A of Order 41 introduced by the CPC. Amendment Act, 1976 does not in any way affect the principle laid down by the Full Bench in Haji Hassan Rowther’s case and by Viswanatha lyer, J. in Kunhiraman’s case (1979 Ker LT 718).

3. Mahmood, J. on behalf of a Division Bench of the Allahabad High Court stated as early as in 1884 in Gulab Rai v. Mangli Lal, (1884) ILR 7 All 42 at p. 43 :–

“In the Civil Procedure Code there is no separate provision which allows the appellate court to “reject’1 a memorandum of appeal on the ground of its being barred by limitation. Section 543 is limited to cases in which the memorandum of appeal is not drawn up in the manner prescribed by the Code, and it is only by applying Section 54(c), mutatis mutandis, (as provided by the last part of Section 582), to appeals that the Code can be understood to make provision for rejection of appeals as barred by limitation. However, Section 4 of the Limitation Act clearly lays down that every “appeal presented after the period of limitation prescribed therefor shall be dismissed.” It is, therefore, clear that the order of the District Judge in this case must be taken to be one which falls under the definition of “decree” within the meaning of Section 2 of the Code, as the order, so far as the Judge was concerned, disposed of the appeal.”

In Mela Ram & Sons v. Commr. of Income-tax, Punjab, AIR 1956 SC 367 a question arose whether an appeal dismissed by the Appellate Assistant Commissioner as filed out of time can be the subject of a further appeal before the Income-tax Appellate Tribunal under Section 33 of the Income-tax Act, 1922. Section 30(1) of the Act confers on the assessee a right of appeal against the orders passed by the Income-tax Officer under, the sections specified therein. Section 30(2) provides that an appeal shall ordinarily be presented within 30 days of the order of assessment; but the Appellate Assistant Commissioner may admit an appeal after the expiry of the period if he is satisfied that the appellant had sufficient cause for not presenting the appeal. within time. Section 31(3) specifies the orders that may be passed in the appeals according as they are directed against orders passed under the one or the other of the sections of the Act which are specified in Section 30(1). When an appeal is against an order of assessment under Section 23, it is provided in Section 31(3), Clauses(a) and (b) that in disposing of the appeal the Appellate Assistant Commissioner may (a) confirm, reduce, enhance or annul the assessment, or (b) set aside the assessment and direct the Income-tax Officer to make a fresh assessment after making such further enquiry as he thinks fit. Section 33(1) enacts that any assessee objecting to an order passed by an Appellate Assistant Commissioner under Section 28 or Section 31 may appeal to the Appellate Tribunal within sixty days of the date on which such order is communicated to him. The question was whether an order dismissing an appeal presented out of time is one under Section30(2) or under Section 31 of the Act. If it is the former, there is no appeal provided against it; if it is the latter, it is open to appeal to the Appellate Tribunal under Section 33. Venkatarama Ayyar, J. speaking for a Bench consisting of himself, Das, C. J. and Bhagwati, J. stated at p. 371 :

“Section 30(1) confers on the assessee a right of appeal against certain orders, and an order of assessment under Section 23 is one of them. The appellant therefore had a substantive right under Section 30(1) to prefer appeals against orders of assessment made by the Income-tax Officer. Then, we come to Section 30(2), which enacts a period of limitation within which this right is to be exercised. If an appeal is not presented within that time, does that cease to be an appeal as provided under Section 30(1)?

It is well established that rules of limitation pertain to the domain of adjectival law, and that they operate only to bar the remedy but not to extinguish the right. An appeal preferred in accordance with Section 30(1) must, therefore, be an appeal in the eye of law, though having been presented beyond the period mentioned in Section 30(2) it is liable to be dismissed ‘in limine’. 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, Section 28, Limitation Act; but there is none such here.

On the other hand, in conferring a right of appeal under Section 30(1) and prescribing a period of limitation for the exercise thereof separately under Section 30(2), the Legislature has evinced an intention to maintain the distinction well-recognised under the general law between what is a substantive right and what is a matter of procedural law. In ‘Nagendranath v. Suresh Chandra’, AIR 1932 PC 167 at p. 167(K), Sir Dinshaw Mulla construing the word, ‘appeal’ in the third column of Article 182, Limitation Act observed :

“There is no definition of appeal in the Code of Civil Procedure, but their Lordships have no doubt that any application by a party to an appellate court, asking it to set aside or revise a decision of a subordinate court, is an appeal within the ordinary acceptation of the term, and that, it is no less an appeal because it is irregular or incompetent.” These observations were referred to with approval and adopted by this court in ‘Raja Kulkarni v. State of Bombay’, AIR 1954 SC 73 at p. 74(L). In ‘Promotho Nath Roy v. W. A, Lee’, AIR 1921 Cal415(M), an order dismissing an application as barred by limitation after rejecting an application under Section 5, Limitation Act to excuse the delay in presentation was held to be one “passed on appeal” within the meaning of Section 109, Civil P. C.

On the principles laid down in these decisions, it must be held that an appeal presented out of time is an appeal, and an order dismissing it as time-barred is one passed in appeal.”

The Supreme Court affirms the decision of the Madras High Court in Commr. of Income-tax v. Shahzadi Begum, AIR 1952 Mad. 232 where Satyanarayana Rao, J. stated at p. 234 : –

“If the appeal is dismissed as incompetent or is rejected as it was filed out of time and no sufficient cause was established, it results in an affirmation of the order appealed against.”

The Supreme Court affirms also the following observation of Chakravarti, J. in Gour Mohan Mullick v. Commr. of Agricultural Income-tax, AIR 1954 Cal 468 at’p. 472. :

“An appellate order may not, directly and by itself, confirm or reduce or enhance or annul an assessment and may yet dispose of the appeal. If it does so, it is immaterial whether the ground is a finding that the appeal is barred by limitation or a finding that the case is not a fit one for extension of time or both.”

The following observation of Chagla, C. J. in K. K. Porbunderwalla v. Commr. of Income-tax, AIR 1952 Bom 157 at page 158 is also approved as laying down the correct principle ;

“…..although the Appellate Assistant Commissioner did not hear the appeal on merits and held that the appeal was barred by limitation, his order was under Section 31 and ‘the effect of that order’ was to confirm the assessment which had been made by the Income-tax Officer.”

Referring to the above and other cases the Supreme Court concludes at page 373 :

“There is thus abundant authority for the position that Section 31 should be liberally construed so as to include not only orders passed on a consideration of the merits of the assessment but also orders which dispose of the appeal on preliminary issues, such as limitation and the like.”

4. The observations of Sir Dinshaw Mulla in Nagendranath v. Suresh Chandra, AIR 1932 PC 165 at p. 167 quoted in the above passage from the judgment of Venkatarama Ayyar, J. were made while considering the question of limitation under Article 182 of the Limitation Act, 1908. Under the said Article the period of limitation for the execution of a decree of a civil court was three years from the date of the decree or where there has been an appeal from the date of the final decree of the appellate court. The Privy Council held that the appeal even though irregular in form as not being an appeal against the decree of Subordinate Judge and being insufficiently stamped for that purpose was nevertheless an appeal for the purpose of column 3 of Article 182 of the Limitation Act. In Raja Kulkarni v. State of Bombay, AIR 1954 SC 73, the Supreme Court observes :

“Whether the appeal is valid or competent is a question entirely for the Appellate Court before whom the appeal is filed to determine, and this determination is possible only after the appeal is heard, but there is nothing to prevent a party from filing an appeal which may ultimately be found to be incompetent, e. g., when it is held to be barred by limitation or that it does not lie before that court or is concluded by a finding of fact under section 100 of the Civil Procedure Code. From the mere fact that such an appeal is held to be unmaintainable on any ground whatsoever, it does not follow that there was no appeal pending before the court.”

5. In Board of Revenue v. Raj Brothers Agencies, (1973) 3 SCR 492 ; (AIR 1973 SC 2307) the Supreme Court was concerned with the question whether a revision under Section 34 of the Madras General Sales Tax Act against the order of the Appellate Assistant Commissioner was barred by reason of the dismissal of an appeal against the same order by the Appellate Tribunal as time-barred. Under Section 34 of the said Act a revision lies to the Board of Revenue against the order of the Appellate Assistant Commissioner if the order had not been the subject of an appeal before the Tribunal. The Supreme Court after referring to the decision in Mela Ram & Sons’ case (AIR 1956 SC 367) (supra) preferred to rest its decision applying the principle of stare decisis based on the decision in Erode Yarn Stores v. State of Madras, (1963) 14 STC 724 (Mad). The Supreme Court observed at page 495 (of SCR) : (at page 2308 of AIR) :

“In the circumstances of the present case it is not necessary for us to consider whether the decision of the High Court in Erode Yarn Stores’ case was correctly decided. That decision was rendered in respect of a provision in a State Act. It was rendered as far back as 1963. In that case the High Court accepted the contention of the State. That decision has stood the field till now. It must have governed several cases, decided thereafter. After that decision was rendered, the Act had been subjected to several amendments. The legislature has not thought fit to amend Section 34. To put it differently the State had prayed for and obtained a particular interpretation of Section 34. It has accepted that interpretation to be correct ever since 1963. Under these circumstances it is not proper for this court to upset that decision at this late stage and disturb a settled position in law. If the State wants to change the law it is open to it to move the Legislature for making the necessary amendments. We find it difficult to appreciate the State’s conduct in taking inconsistent positions.”

Thus the principle in Mela Ram & Sons’ case (AIR 1956 SC 367) though accepted was not applied in Raj Brothers’ case (AIR 1973 SC 2307) for the reasort that the decision in Erode Yarn.Stores’ case (1963-14 STC 724) (Mad) had stood the field from 1963 onwards and, in spite of several amendments effected thereafter, the Legislature had not thought it fit to amend Section 34 of the Madras General Sales Tax Act.

6. Pathak, J. as his Lordship then was in Rani Choudhury v. Lt. Col. Suraj Jit Choudhury, (1982) 2 SCC 596: (AIR 1982 SC 1397), followed Mela Ram & Sons’ case and stated at p. 600 (of SCC): (at pp. 1399-1400 of AIR) :

“In the present case, the appeal was dismissed as barred by limitation. That it was an appeal even though barred by time is clear from Mela Ram & Sons v. C.I.T. (AIR 1956 SC 367) where Venkatarama Ayyar J., speaking for the Court, after referring to Nagendra Nath Dey v. Suresh Chandra Dey, (AIR 1932 PC 165), Raja Kulkarni v. State of Bombay (AIR 1954 SC 73) and Promotho Nath Roy v. W. A. Lee (AIR 1921 Cal 415) held that “an appeal presented out of time is an appeal, and an order dismissing it as time-barred is one passed in appeal” There can be no dispute then that in law what the respondent did was to file an appeal and that the order dismissing it as time-barred was one disposing of the appeal.”

7. A similar question as was raised in Raj Brothers’ case (AIR 1973 SC 2307) (supra) came up for decision before a Division Bench of this Court in Thankappan v Trivandrum Dt. Co-op. Bank Ltd., (1986 Ker LT 263 : (AIR 1987 Ker 1). Section 82 of the Kerala Cooperative Societies Act provides for an appeal against the orders of the Registrar under Section 73 to the Co-operative Tribunal Section 84 invests the Tribunal with a power of revision in respect of proceedings in which an appeal lies to it with a proviso that the Tribunal shall not entertain a revision if the time for appeal against the decision or order has not expired or the decision or order has been made the subject-matter of an appeal The question before, the Division Bench was whether an appeal presented before the Tribunal out of time and dismissed as time-barred would bar a revision under Section 84 of the Co-operative Societies Act. One of us (Sukumaran, J.) on behalf of the Division Bench stated at page 265 (of Ker LT) : (at p. 3 of AIR) ;

“When an aggrieved party approaches the appellate forum with a prayer for a modification of the order of the inferior authority, there would be an appeal. The appeal may have very many defects or disabilities; some of them may be even fatal. The defects and disabilities of the appeal would not obliterate the factual existence of the appeal. In a sense, it may be a stillborn one, never having had a life in it, when it was presented before the appellate venue. Still the law would deem that there was an appeal carried right up to the portals of the appellate forum. This appears to be the legal position in relation to the birth, life and ultimate end of an appeal, as gatherable from judicial decisions which have sought to explain the different facets of the concept during the past few centuries.”

A. G. v. Sillem, (1864) 33 L J Ex 209, Colonial Sugar Refining Co. v. Irving, (1905) A C 369 and Mela Ram & Sons v. I. T. Commr., AIR 1956 SC 367 are cited in support of the above proposition. Disposal of an appeal filed out of time can only be by way of dismissal as provided for in Section 3 of the Limitation Act. An appeal registered under Rule 9 of Order 41 CPC is to be disposed of according to law and a dismissal of the appeal for the reason of delay in its presentation after the dismissal of an application for condonation of delay is in substance and effect a confirmation of the decree appealed against. In U.J.S. Chopra v State of Bombay, AIR 1955 SC 633, S. R. Das, J. in his concurring judgment stated at p. 642 :

“The primary and paramount duty of the court is to decide the appeal or revision and it is to exercise its discretion in so deciding it. In deciding the appeal or revision the High Court may choose which of its powers it will exercise if the circumstances of the case call for such exercise.

In a clear case, apparent on the grounds of appeal or revision or on the face of the judgment appealed from or sought to be revised it may come to the conclusion that the case has no merit and does not call for the exercise of any of its powers, in which case it may dismiss it summarily.

If, however, it has any doubt, it may call for the record or may admit it and issue notice to the respondent and decide it after a full hearing in the presence of all parties. But decide it must at one stage or the other. The discretion conferred on the High Court does not authorise it to say that it will not look at the appeal or the revision. The court’s bounden duty is to look into the appeal or revision and decide it, although in the process of arriving at its decision it has very wide discretion.

It is further stated at page 643 :

“Where an appeal or revision is disposed of after a full hearing on notice to the respondent and allowed wholly or in part it becomes ‘ex facie’ obvious that the judgment appealed against or sought to be revised has been altered by the judgment or decision of the High Court on appeal or revision and a note is made in the record of this alteration.

But when an appeal or revision is dismissed after full hearing and the sentence is maintained there is outwardly no change in the record when the certificate is sent by the High Court but nevertheless there is an adjudication by the High Court. In the first case it is judgment of acquittal or reduction of sentence and in the second case it is a judgment of conviction.

Likewise, when an appeal or revision is summarily dismissed, such dismissal maintains the judgment or order of the lower court and a note is made of such dismissal in the record and in the eye of law it is the judgment of the High Court that prevails. To the uninstructed mind the/change may be more easily noticeabld in the first case than in the other two cases but on principle there is no difference.

I can see no reason for holding that there is a merger or replacement of judgment only in the first two cases and not in the last one. In my opinion, it makes no difference whether the dismissal is summary or otherwise, and there is a judgment of the High Court in all the three cases.”

On the question of merger, the majority judgment of Bhagwati, J. in the above case held that the judgment pronounced by the High Court in the exercise of its appellate or revisional jurisdiction, after issue of a notice and a full hearing in the presence of both parties, would replace the judgment of the lower court, thus constituting the judgment of the High Court the only final judgment in the case. In considering the question of res judicata for the reason of the dismissal of two connected appeals — one for the defect in printing and the other as barred by limitation — the Supreme Court in Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332 stated at p. 1336 :

“It is true that the High Court dismissed the appeals arising out of suits Nos. 77 and 91 either on the ground that it was barred by limitation or on the ground that steps had not been taken for printing the records. Even so the fact remains that the result of the dismissal of the two appeals arising from suits Nos. 77 and 91 by the High Court on these grounds was that the decrees of the Additional Civil Judge who decided the issue as to title on merits stood confirmed by the order of the High Court. In such a case, even though the order of the High Court may itself not be on the merits, the result of the High Court’s decision is to confirm the decision on the issue of the title which had been given on the merits by the Additional Civil Judge and thus in effect the High Court confirmed the decree of the trial Court on the merits, whatever may be the reason for the dismissal of the appeals arising from suits Nos. 77 and 91. In these circumstances though the order of the High Court itself may not be on the merits, the decision of the High Court dismissing the appeals arising out of suits Nos. 77 and 91 was to uphold the decision on the merits as to issue of title and therefore it must be held that by dismissing the appeals arising out of suits Nos. 77 and 91 the High Court heard and finally decided the matter for it confirmed the judgment of the trial Court on the issue of title arising between the parties and the decision of the trial court being on the merits the High Court’s decision confirming that decision must also be deemed to be on the merits. To hold otherwise would make res judicata impossible in cases where the trial Court decides the matter on merits but the appeal court dismisses the appeal on some preliminary ground thus confirming the decision of the trial court on the merits. It is well settled that where a decree on the merits is appealed from, the decision of the trial court loses its character of finality and what was once res judicata again becomes res sub judice and it is the decree of the appeal Court which will then be res judicata. But if the contention of the appellant were to be accepted and it is held that if the appeal court dismisses the appeal on any preliminary ground, like limitation or default in printing, thus confirming in toto the trial court’s decision given on merits, the appeal court’s decree cannot be res judicata, the result would be that even though the decision of the trial court given on the merits is confirmed by the dismissal of the appeal on a preliminary ground there can never be res judicata. We cannot, therefore, accept the contention that even though the trial court may have decided the matter on the merits there can be no res judicata if the appeal court dismisses the appeal on a preliminary ground without going into the merits, even though the result of the dismissal of the appeal by the appeal court is confirmation of the decision of the trial court given on the merits. Acceptance of such a proposition will mean that all that the losing party has to do to destroy the effect of a decision given by the trial court on the merits is to file an appeal and let that appeal be dismissed on some preliminary ground, with the result that the decision given on the merits also becomes useless as between the parties. We are, therefore, of opinion that where a decision is given on the merits by the trial court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial court on the merits itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal.”

Dismissal of an appeal on the ground of limitation was thus held as amounting to a confirmation of the decree of the trial court on the merits of the case and the decision of the appellate court is held to be res judicata on the question of title raised in the connected appeal. This decision of the Supreme Court would clearly indicate that the decree of the trial court gets merged in the appellate court’s decree even when the appeal is dismissed on a preliminary ground or as time-barred. In Annapu Ramanna v. Ponduri Sreeramulu, AIR 1958 Andh Pra 768 dealing with a case of dismissal at the admission stage under Order 41. Rule 11, C.P.C. Subba Rao, C.J. observed at p. 771 :

“The aforesaid provisions provide two modes for the disposal of an appeal. They were conceived for the expeditious disposal of frivolous appeals without giving notice to the respondent and causing him unnecessary trouble and expense and for the decision of arguable appeals after giving notice to the respondent and giving him an opportunity to support the decision of the trial court. The difference between the two modes lies, only in the manner of disposal but not in the essence.

In either case, the appellate court considers the questions of law and the evidence arising in the appeal and in one case dismisses the appeal in limine as in its view no case is made to hear the respondent to sustain the judgment of the trial court and in the other finds some arguable point of either fact or law which requires to be elucidated by the respondent. In both the cases, the appeal may be dismissed. But in the former case as the respondent is not heard the decree of the trial court cannot be modified or varied.

x x x x x

We cannot, therefore, see any justification for the argument that there is a difference in essence between a judgment dismissing an appeal under Order 41, Rule 11, CPC or that made under Order 41, Rule 37, C.P.C. In both the cases, the judgment of the appellate court adjudicates upon the rights of the parties, though in one case the manner of disposal is concise and speedy and in the other it takes a more elaborate form and longer time. Whether the appeal is dismissed in limine against the ex parte respondent or dismissed after hearing the respondent, it is the decree of the appellate court that governs the rights of the parties.”

It is further stated at p. 772 :

“If the argument of the learned counsel for the respondents be accepted, it would lead to an anomaly which should be avoided unless express provisions of the Civil Procedure Code sustain it. The dismissal of an appeal in limine is certainly the formal expression of an adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the appeal. It is, therefore, a decree as defined under Section 2(2), C.P.C.

It is common-place that the decree of the trial Court merges with that of the appellate Court. But if the respondents’ contention is accepted, there will be two decrees, one that of the appellate court and the other that of the trial court. Each by force of law can be executed. There is no acceptable reason or principle why the legislature intended to have this consequence. The only reason that can be suggested is that the respondent may have had no notice of the appeal and, therefore, the appellate decree may be ignored.

The non-issue of notice to the respondent may be a ground for holding that any decree made against him is not binding on him but it cannot efface the legal effect of a valid decree made by the appellate Court, If, as we have held, the appellate decree is the final decree and the decree of the lower court merges with it, it follows that the application for amendment of the decree should be made to the appellate Court.”

In Rani Choudhury’s case (AIR 1982 SC 1397) referred to (supra) A. N. Sen, J. stated with reference to the explanation added to Order 9, Rule 13 by the C. P. C. Amendment Act 1976 at p. 610 (of SCC) : (at p. 1406 of AIR) :

“The disposal of an appeal on the ground of limitation may or may not be adjudication on the merits of the appeal, depending on the particular facts and circumstances of the case and may or may riot result in the merger of the decree of the trial court with the decree, if any, of the appellate court; but there cannot be any manner of doubt that when an appeal from the ex parte decree is dismissed on the ground of limitation, the appeal is disposed of on any ground other than the ground that the appellant has withdrawn the appeal.”

Pathak, J., as he then was, stated at p. 599 (of SCC) : (at pp. 1398-1399 of AIR) :

“The mere filing of the appeal did not take away the jurisdiction of the trial court to entertain and dispose of the application for setting aside the ex parte decree. It was where the appeal was disposed of, and the appellate decree superseded the trial court decree by reversing, confirming or varying it that the trial court could not proceed to set aside its ex parte decree. For the trial court decree was said to have merged with the appellate decree. There are of course cases where the trial court decree does not merge with the appellate decree. Such instances arise when the appeal is dismissed in default, or where it is dismissed as having abated by reason of the omission of the appellant to implead the legal representatives of a deceased respondent or where it is dismissed as barred by limitation. So there isa limited area where the trial court decree merges in the appellate decree, and when that takes place an application before the trial court for setting aside the decree loses all meaning. It was a limited area defined by the operation of the doctrine of merger. From February 1, 1977 the area was extended enormously. With the Explanation in operation, no application for setting aside an ex parte decree can He where the defendant has filed an appeal and the appeal has been disposed of on any ground other than the ground that the appeal has been withdrawn by the appellant.”

8. As stated by Subba Rao, C.J. a decree dismissing an appeal in limine may not be binding on the respondent for the reason that he had no notice of the appeal and it may be open to him to ignore the decree. It is the same principle that is stated by the Supreme Court in a recent decision in Kewal Ram v. Ram Lubhai (1987) 2 SCC 344) : (AIR 1987 SC 1304). But that does not mean that an appellate decree dismissing an appeal has no legal effect. The legal effect is the confirmation of the decree appealed against whether the dismissal is after hearing the respondent or without notice to him. In Kewal Ram’s case Khalid, J. stated :

“It is well settled that when a decree of the trial court is either confirmed, modified or reversed by the appellate decree, except when the decree is passed without notice to the parties; the trial court decree gets merged in the appellate decree. But when the decree is passed without notice to a party, that decree will not, in law, be a decree to which he is a party. Equally so in the case of an appellate decree. In this case these two persons were not served in the suit. A decree was passed ex parte against them without giving them notice of the suit. In law, therefore, there is no decree against them. In the appeal also they were not served. If they had been served in the appeal things would have been different. They could have put forward their case in appeal and got appropriate orders passed. But that is not the case here. That being so, there is no bar for an application by them before the trial court under Order 9, Rule 13, to set aside the ex parte decree against them.”

9. M, P. Menon, J. in Viswambharan’s case (1987-1 Ker LT 543) (supra) has followed the decision of a Division Bench of this Court in Chakkuvarkey’s case (AIR 1962 Ker 104) (supra) in preference to the latter decision in Chandrika Amma’s case (AIR 1984 Ker 198) (supra). In Chakkuvarkey’s case a certified copy of the decree appealed against had been registered, and the decree-holder had under Article 166 of the Travancore Limitation Act, 1100 a period of six years to execute the decree. An appeal against the decree was dismissed in limine without notice to the decree-holder. The question for decision was whether the period of limitation for execution of the decree had been curtailed to three years for the reason of the dismissal of an appeal filed by the judgment-debtor in limine. M. S. Menon, J. (as he then was) on behalf of the Division Bench stated :

“A right of appeal or second appeal is not a natural or inherent right; it has to be conferred expressly by statutory provisions in that behalf and is circumscribed and controlled by the terms of those provisions. It is clear from Sections 100 and 101 that no second appeal is competent except on the grounds specified in Section 100, and if the High Court refused to admit a second appeal on the ground that requisite grounds do not exist, no question of a merger of the decree of the first appellate court in a decree of the High Court can arise for consideration. It will be a curious result indeed if the period of limitation available to the appellant has to be considered as curtailed by a second appeal of which he had no notice and which was dismissed as incompetent when if came up for admission.”

What difference does it make if the second appeal is dismissed after notice to the respondent ? Will the dismissal after notice curtail the period of limitation available to the decree-holder ? No such question is posed or considered by the Division Bench.

10. In State of Madras v. Madurai Mills Co. Ltd., AIR 1967 SC 681 it” is stated at p. 683 :

“But the doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior Tribunal and the other by a superior Tribunal, passed in an appeal or revision, there is a fusion or merger of two orders irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. In our opinion, the application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction.”

A decree dismissing an appeal in limine without notice to the respondent cannot be said to be binding on him and the respondent is entitled to ignore the decree of which he had no notice. If the respondent is entitled to ignore the decree of the appellate court, it cannot be said that the decree of the subordinate court would merge in the decree of the appellate court so as to render the appellate decree binding on him.

11. In Viswambharan’s case (1987-1 Ker LT 543) a decree for mandatory injunction for demolition of a hut was confirmed by the appellate court. A second appeal at the instance of the defendant was dismissed at the admission stage without issuing notice to the decree-holder respondent. The decree-holder filed an E. P. for execution of the decree of the lower appellate court. The contention by the judgment-debtor was that the decree of appellate court had merged in the decree of the High Court dismissing the second appeal in limine and the decree of the High Court was the only effective decree capable of execution. On these facts M. P. Menon, J. was right in his view that the decree-holder is entitled to ignore the decree of which he had no notice and hence he could execute the decree of the lower appellate court that confirmed the decree of the trial court granting a mandatory injunction in favour of the decree-holder. But the strong dissent expressed by the learned Judge against the decision of Viswanatha Iyer, J. in Kunhiraman’s case (1979 Ker LT 718) (supra) is not justified and cannot stand in the light of the decisions of the Supreme Court discussed above. The learned Judge has not even adverted to the Full Bench decision of this Court in Haji Hassan Rowther’s case (AIR 1972 Ker 56) referred to above. The decision in Chakkuvarkey’s case (AIR 1962 Ker 104) (supra) can very well be sustained as the decree-holder in that case had no notice oi the decree dismissing the second appeal in limine, and he was entitled to ignore the same. In that view of the matter there was no question of the period of limitation for execution of the decree provided under Article 166 of the Travancore Limitation Act, 1100 getting curtailed for the reason of the dismissal of the second appeal filed by the judgment-debtor in limine without notice tc the decree-holder.

12. As held by the Supreme Court in Shankar Ramchandra Abhyankar v. Krishnaj Dattatraya Bapat, AIR 1970 SC 1, tht revisional jurisdiction of the High Court is part of its general appellate jurisdiction anc the dismissal of a revision in limine stands or the same footing as the dismissal of an appea without notice to the respondent. Tht respondent in such circumstances is entitled to ignore the order in revision of which he had no notice. In Chandrika Amma’s case (AIR 1984 Ker 198) (supra) the question was whether a tenant of a building against whom there is an order for eviction under Section ll(2)(b) of the Kerala Buildings (Lease and Rent Control) Act is entitled to deposit the arrears of rent, interest and costs to get the order for eviction vacated under Section ll(2)(c) of the Act within the period of time mentioned therein reckoned with refernece to the date of dismissal of the revision in limine by the High Court. In the case the landlord had filed a petition for eviction of the tenant from the building in his occupation under Section 11(2)(b) of the Rent Control Act on the ground that the tenant had kept the rent in arrears. The Rent Centrol Court allowed the petition granting three months’ time to the tenant to pay the arrear under Section 11(2)(c) of the Act. The tenant did not pay the arrears, but filed an appeal. The appeal was dismissed granting the tenant two months’ time from the date of the appellate order for depositing the arrears of rent. The tenant did not deposit the arrears, but filed a revision petition before the District Court under Section 20 of the Act. The District Court after hearing both parties dismissed the revision granting the tenant two months’ time under Section 11(2)(c) of the Act for payment of the arrears of rent. Without paying the arrears the tenant filed a revision petition before the High Court under Section 115, C. P. C. The revision was dismissed at the admission stage without issuing notice to the landlord. Section 11(2)(c) of the Rent Control Act allows the tenant to deposit the arrears of rent within one month from the date of the order for eviction or within such further period of time that the Rent Control Court may in its discretion allow to enable the tenant to get the order for eviction vacated. On failure of the tenant to deposit the arrears of rent within the time allowed by the District Court in revision, the landlord got an accrued right to evict the tenant in execution of the order of the District Court confirming the order for eviction passed in his favour by the two couris below. The landlord who had no notice of the revision dismissed in limine by the High Court was, on the principle discussed above, entitled to ignore the order dismissing the revision and proceed to execute the order for eviction. The Division Bench however took the view that the period of time provided tor under Section 11(2)(c) of the Rent Control Act can be reckoned with effect from the date of the order dismissing the revision in limine by the High Court on the ground that the orders of the subordinate courts would get merged in the order dismissing the revision. The decision in Chakkuvarkey’s case (AIR 1962 Ker 104} was not brought to the notice of the Division Benc. For the reason that the respondents decree-holder in revision is entitled to ignore the order passed without notice to him, we are of the view that Chandrika Amma’s case (AIR 1984 Ker 198) (supra) is not correctly decided.

13. M. P. Menon, J. has declined to follow the later Division Bench decision in Chandrika Amma’s case and has dissented from the decision of Viswanatha lyer. J. in Kunhi-raman’s case (1979 Ker LT 718) without even adverting to the Full Bench decision of this Court in Haji Hassan Rowther’s case (AIR 1972 Ker 56). Kalliath, J. in his order of reference makes mention of the uncertainty in law if the principle of “restrictive distinguishing” is applied to get over a binding decision. The learned Judge states :

“But it foretells a peril. It makes the position of law more unsettled and uncertain. Even a modicum of certainty and calculability are lost. I do not want to say that there should be an excessive conservative adherence to the doctrine of precedents which would certainly tend to freeze the law. A Judge is free to innovate a restrictive formula to distinguish the decision and can find refinements and improvements on it, but if there are two conflicting decisions on the point by two Division Benches of the same Court, is it not decorous to see the point is settled by a larger Bench to ensure stability of law.”

The Supreme Court in the decision reported in Mahadeolal v. Administrator General of West Bengal, AIR 1960 SC 936 states at p. 941 :

“Before we part with this appeal, however, it is our duty to refer to one incidental matter. We have noticed with some regret that when the earlier decision of two Judges of the same High Court in Deorajin’s case, (1954) 58 Cal WN 64 ; AIR 1954 Cal 119, was cited before the learned Judges who heard the present appeal they took on themselves to say that the previous decision was wrong, instead of following the usual procedure in case of difference of opinion with an earlier decision, of referring the question to a larger Bench. Judicial decorum no less than legal propriety forms the basis of judicial procedure. If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of coordinate jurisdiction in a High Court start overruling one another decision. If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong, itself gives effect to that view the result would be utter confusion. The position would be equally bad where a Judge sitting singly in the High Court is of opinion that the previous decision of another single Judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger Bench. In such a case lawyers would not know how to advise their clients and all courts subordinate to the High Court would find themselves in an embarassing position of having to choose between dissentient judgment of their own High Court.

(20) As far as we are aware it is the uniform practice in all the High Courts in India that if one Division Bench differs from an earlier view on a question of law of another Division Bench, a reference is made to a larger Bench. In Calcutta High Court a rule to this effect has been in existence since 1867. It is unfortunate that the attention of the learned Judges was not drawn in the present case to that rule. But quite apart from any rule, considerations of judicial propriety and decorum ought never to be ignored by courts in such matters.”

The same view is expressed in Jaisri v. Rajdewan, AIR 1962 SC 83 wherein it is stated . at p. 87 :

“When a Bench of the High Court gives a decision on a question of law, it should in general be followed by other Benches unless they have reasons to differ from it, in which case the proper course to adopt would be to refer the question for the decision of a Full Bench.”

It is further stated at p. 88 : .

“Law will be bereft of all its utility if it should be thrown into a state of uncertainty by reason of conflicting decisions, and it is therefore desirable that in case of difference of opinion, the question should be authoritatively settled.”

13A. As stated by Subba Rao, C.J., in Ramanna’s case, AIR 1958 Andh Pra 786 and by the Supreme Court in Kewal Ram’s case (1987) 2 SCC 344 : (AIR 1987 SC 1304) a decree passed without notice to the respondent will not be binding on him. The ultimate decision in Chakkuvarkey’s case (AIR 1962 Ker 104) (supra) could very well be sustained on that principle. But we find it difficult to accept the proposition that there is no decree when an appeal is dismissed in limine and such a dismissal is of no consequence.

13B. In the present case there was a delay of 3 days in presenting the appeal before the lower appellate court. The cause of the delay is explained in the affidavit in support of the petition for condonation of delay as on account of the appellant’s illness. The appellant was examined as P. W. 1. There is no evidence contra against the ease proved by P. W. I. We therefore find that there was sufficient reason for the delay in presenting the appeal before the lower appellate court. We, therefore, allow I. A. No. 758/1980 and condone the delay in filing the appeal.

13C. We are aware that this case can be disposed of without deciding the legal effect of the dismissal of an appeal in limine. But the question does arise on the order of reference of this and a similar case to the Full Bench by Kalliath, J. doubting the correctness of the decision of M. P. Menon. J. in Viswambharan’s case (1987-1 Ker LT 543), which related to the dismissal of a second appeal in limine. One of us (P. C. Balakrishna Menon, J.) is a party to the decision in Chandrika Amma’s case, (AIR 1984 Ker 198) and when the mistake in that decision is fully brought out and highlighted by elaborate arguments by counsel, we felt it is our plain duty to correct the mistake.

14. Since the lower appellate court has not considered the case on merits, we set aside the judgment and decree of the court below and remand the case to that court for fresh disposal of the appeal on merits and in accordance with law. The parties will appear before the court below on 23-11-1987. The second appeal is allowed as indicated above. There will be no order as to costs.

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