1. This writ petition is under Article 227 of the Constitution of India wherein order dated 16.08.018 passed in Civil Appeal No.36 of 2016 has been
assailed by which the appeal has been dismissed being time barred.
2. This Court while hearing the petitioner has raised the issue about maintainability of the writ petition under Article 227 of the Constitution of India on
the ground that since the civil appeal against the judgment/decree passed in title suit being Title Suit No.94 of 1992 has been dismissed although on the
point of limitation as to whether it will be said to be an order interlocutory in nature maintaining a writ petition under its revisionary jurisdiction
conferred under Article 227 of the Constitution of India or a final conclusive order affirming the decree passed by the trial Court.
3. Mr. Sudhir Kumar Sharma, learned counsel for the petitioner has submitted that since the appeal has been dismissed on the point of limitation,
therefore, it will be said to be an order interlocutory in nature and as such, petition under Article 227 will be maintainable since according to him if the
impugned order dated 16.08.2018 would be set aside, the result would be revival of the appeal and in that view of the matter the order passed by the
First Appellate Court will be said to be interlocutory in nature.
4. Before answering the issue, relevant facts are required to be incorporated in the order leading to the factual aspect which are that one Chhedilal
Tulsiyan and Hiramani Devi filed one title suit being Title Suit No.94 of 1992 against the father of the petitioner namely Rajendra Singh in the year
1992 stating therein that one Thomas Henry Ward had acquired a big chunks of land at Mouza Mangrodih tola Barwadih in the district of Hazaribagh,
now Giridih, from Raja Sri Nilkanth Narayan Singh of Gadi Serampore in permanent Mokarri right by virtue of registered patta dated 17th September,
1912 and constructed big bungalow.
The said Thomas Henry Ward sold the said land bungalow to Babu Ram Nath Agrawala and Lala Gopi Nath Agrawala by virtue of registered sale
deed dated 18th December, 1919 and put them in khas possession thereof, this included lands under Plot No.747, 748, 749 and 750 lying adjacent north
to the present Giridih-Tundi Road.
In the year 1930 there was partition in between Lala Ramnath Agrawala and Lala Gopi Nath Agrawala and land and property at Mangrodih,
Barwadih was allotted to the share of Babu Ram Nath Agrawala. Babu Gopinath Agrawala was allotted land and property at other places who has
died leaving behind his four sons namely, Shital Prasad Agrawala, Baij Nath Agarawala, Goving Prasad Agarwala and Manmohan Nath Agrawala
who succeeded and inherited their father and came in possession of the said land and property, later on there was a registered partition among the said
four sons of late Lal Ram Nath Agrawala. The lands and property at Mangrodih, Barbadih and other fell to the share of Govind Prasad Agrawala and
Manmohan Nath Agrawala and these two brothers came in khas possession of the said property.
They have sold out the property in favour of one Smt. Jasoda Devi by virtue of registered sale deed dated 17.10.1958 and thereafter, in favour of
subsequent purchaser. Ultimately dispute has arisen which led to filing of a suit being Title Suit No.94 of 1992.
The suit was decreed by virtue of judgment and decree passed on 16.01.2012 accordingly, decree has been prepared on 19.01.2012 against the
petitioner.
The petitioner being dis-satisfied with the judgment dated 16.01.2012 passed in Title Suit No.94 of 1992 moved before the court of Principal District
Judge, Giridih by way of Title Appeal No.36 of 2016 but there was delay in filing the said appeal which was rejected vide order dated 16.08.2018
which is impugned in this writ petition.
5. This Court before entering into the legality and propriety of the order on its merit, deem it fit and proper to answer the issue about maintainability of
the present writ petition under its revisional jurisdiction conferred under Article 227 of the Constitution of India.
6. Learned counsel for the petitioner has relied upon the following judgments :
(i) Ratansingh vs. Vijaysingh and Ors., reported in AIR 2001 Supreme Court 279 ; 2001 (1) SCC 469 ;
(ii) Shyam Sundar Sharma vs. Pannalal Jaiswal & Ors., reported in 2005 (1) JLJR (Supreme Court) 107;
(iii) the unreported judgment of Hon’ble Madhya Pradesh High Court in the case ofS haligram vs. Nagar Palika, reported in 2004 (3) MPHT 185;
and
(iv) Sameer Singh & Anr. vs. Abdul Rab and Ors., reported in (2015) 1 SCC 379.
7. It is not in dispute so far as the position of law that in view of the judgment rendered in the case of Surya Dev Rai vs. Ram Chader Rai & Ors.,
reported in (2003) 6 SCC 675 the power has been conferred upon the High Court by carving out the power of revision to be exercised under Article
227 of the Constitution against an order passed in civil suit by the trial court which is interlocutory in nature.
8. This Court in order to consider about the nature of order as to whether the order impugned is interlocutory in nature or conclusive since that is the
issue to be answered as because if the nature of order would be interlocutory in nature certainly present writ petition would be maintainable but if the
nature of order would be conclusive in nature, the writ petition under Article 227 would not be maintainable rather appeal will lie.
9. The impugned order suggests that the appeal has been filed against the judgment and decree passed in Title Suit No.94 of 1992 after delay of 03
years and 11 months which according to the appellate court has not properly and reasonably been explained and as such, the civil appeal has been
dismissed being time barred, accordingly, civil appeal has been disposed of.
10. Learned counsel for the petitioner contends that since the appeal has been dismissed on the point of limitation, as such, the order impugned passed
by the first appellate court will not be said to be final and conclusive warranting the petitioner to file appeal against the said order.
11. This Court has gone across the judgment rendered in the case of M/s. Melaram & Sons vs. The Commissioner of Income-tax, Punjab, reported in
(1956) S.C.R. 1966, wherein it has been held that an appeal presented out of time is an appeal and an order dismissing it as time barred is one passed
in an appeal would be said to be conclusive in an affirmation of the order passed by lower assessing authority, paragraph-9 of the said judgment reads
hereunder as:
“9. ………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.â€
This Court has also gone across the judgment rendered in this regard in the case of Sheodan Singh vs Smt. Daryao Kunwar, reported in AIR 1966
Supreme Court 1332 rendered by Four Judges of Hon’ble Supreme Court wherein one of the questions that arose was whether the dismissal of an
appeal or a decree on the ground that the appeal was time barred by limitation was a decision in the appeal and the Court has held under paragraph-
20, which reads hereunder as :
“20. …….Where the trial court has decided two suits having common issues on the merits and there are two appeals therefrom and one of them
is dismissed on some preliminary ground, like limitation or default in printing, with the result that the trial Court's decision stands confirmed, the decision
of the appeal court will be res judicata and the appeal court must be deemed to have heard and finally decided the matter. In such a case the result of
the decision of the appeal court is to confirm the decision of the trial Court given on merits, and if that is so the decision of the appeal court will be res
judicata whatever may be the reason for the dismissal.â€
In the case of Board Of Revenue, Madras vs M/S. Raj Brothers Agencies Etc., the question fell for consideration wherein the judgment rendered in
the case of M/s. Melaram & Sons vs. The Commissioner of Income-tax, Punjab, reported in (1956) S.C.R. 1966 has been upheld.
12. Learned counsel for the petitioner has relied upon one judgment rendered by Hon’ble Apex Court in the case of Ratansingh vs. Vijaysingh
(supra) but this Court after going across the aforesaid judgment rendered by Hon’ble Apex Court, with due respect, is of the view, that the
decision rendered in the case of Ratansingh vs. Vijaysingh (supra) wherein it has been laid down that dismissal of an application for condonation of
delay would not amount to a decree and therefore, dismissal of an appeal as time barred was also not a decree, but the decision was rendered in the
context of Article 136 of Limitation Act, 1963 and in the light of the departure made from the previous position under Article 182 of the Limitation Act,
1908.
It is further evident that the decision of the Hon’ble Apex Court in the case of M/s. Melaram & Sons (supra) and Sheodan Singh (supra) were not
brought to the notice of their Lordships.
13. The principle laid down by a three Judges Bench of the Hon’ble Apex Court in the case of M/s. Melaram & Sons (supra) and Sheodan Singh
(supra) have not been considered by Hon’ble Apex Court and the view has been expressed by two Hon’ble Judges Bench and in view
thereof, as per the principal and ratio decided and its applicability, the judgment rendered by Hon’ble Apex Court by its larger Bench would be
applicable, reference in this regard be made to the judgment rendered in the case of Official Liquidator vs. Dayanand and Ors., reported (2008) 10
SCC 1, paragraphs-84, 86 & 88 which reads hereunder as:
“84. In State of Bihar vs. Kalika Kuer, the Court elaborately considered the principle of per incuriam and held that the earlier judgment by a larger
Bench cannot be ignored by invoking the principle of per incuriam and the only course open to the coordinate or smaller Bench is to make a request
for reference to the larger Bench.
86. In Central Board of Dwaoodi Bohra Community vs. State of Maharashtra, the Constitution Bench interpreted Article 141, referred to various
earlier judgments including Bharat Petroleum Corpn. Ltd. vs. Mumbai Shramik Sangha and Pradip Chandra Parija vs. Pramod Chandra Patnaik and
held that ""the law laid down in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength
and it would be inappropriate if a Division Bench of two Judges starts overruling the decisions of Division Benches of three Judges. The Court further
held that such a practice would be detrimental not only to the rule of discipline and the doctrine of binding precedents but it will also lead to
inconsistency in decisions on the point of law; consistency and certainty in the development of law and its contemporary status - both would be
immediate casualty (Central Board of Dawoodi Bohra Community case, SCC p. 682, paras 12 & 10).
88. In U.P. Gram Panchayat Adhikari Sangh vs. Daya Ram Saroj, the Court noted that by ignoring the earlier decision of a coordinate Bench, a
Division Bench of the High Court directed that part-time tube-well operators should be treated as permanent employees with same service conditions
as far as possible and observed:
26. Judicial discipline is self-discipline. It is an inbuilt mechanism in the system itself. Judicial discipline demands that when the decision of a
coordinate Bench of the same High Court is brought to the notice of the Bench, it is to be respected and is binding, subject of course, to the right to
take a different view or to doubt the correctness of the decision and the permissible course then open is to refer the question or the case to a larger
Bench. This is the minimum discipline and decorum to be maintained by judicial fraternity.
This Court after following the aforesaid settled position of law about the binding precedence of the judgment, the judgment rendered in the case of
M/s. Melaram & Sons (supra) and Sheodan Singh (supra) are held to be binding.
14. This Court, after considering the aforesaid position of law and considering the impugned order whereby the appeal has been dismissed on the point
of limitation, is of the view that appeal since has been dismissed, the result would be the confirmation of the decree passed in the Title Suit No.94 of
1992 and therefore, the order passed by the First Appellate Court cannot be treated to be interlocutory in nature, hence, petition under Article 227 of
the Constitution of India is not maintainable, accordingly, the writ petition is held to be not maintainable and stands dismissed.
15. Since this Court is holding the writ petition as not maintainable, therefore, is not entering into the merit of the case, leaving it open for the petitioner
to agitate the grievance on merit before the appropriate forum.
