Case Note & Summary
The petitioner, as plaintiff, filed a suit for declaration and injunction. The trial court rejected the plaint under Order VII Rule 11(a) and (d) CPC. The petitioner filed a first appeal with a delay of 18 days and applied under Section 5 of the Limitation Act for condonation of delay. The first appellate court dismissed the delay condonation petition but did not dismiss the appeal. The petitioner then filed a writ petition under Article 227 of the Constitution of India. During hearing, the petitioner sought to convert the writ petition into a second appeal under Section 100 CPC, arguing that the dismissal of the delay condonation petition is a judgment in the first appeal and must be challenged by second appeal. The court examined the issue and held that an order dismissing a delay condonation petition in a first appeal is a decree and is appealable under Section 100 CPC. The court allowed the conversion of the writ petition into a second appeal and directed the registry to renumber it accordingly. The court also permitted the petitioner to file substantial questions of law.
Headnote
A) Civil Procedure - Order VII Rule 11 CPC - Rejection of Plaint - Remedy - An order allowing an application under Order VII Rule 11 CPC is appealable under Order XLIII Rule 1(a) CPC; if the appeal is dismissed, the remedy is a second appeal under Section 100 CPC, not a revision under Article 227 of the Constitution of India. (Paras 3-5) B) Limitation Act - Section 5 - Delay Condonation - Appealability - An order dismissing a delay condonation petition in a first appeal is a judgment within the meaning of Section 100 CPC and must be challenged by a second appeal, not by a revision under Article 227 of the Constitution of India. (Paras 4-7) C) Civil Procedure - Section 100 CPC - Second Appeal - Maintainability - A second appeal lies against a decree or order passed in first appeal; an order dismissing a delay condonation petition in a first appeal is a decree and is appealable under Section 100 CPC. (Paras 5-7)
Issue of Consideration
Whether an order dismissing a delay condonation petition in a first appeal is amenable to revision under Article 227 of the Constitution of India or must be challenged by way of a second appeal under Section 100 of the Code of Civil Procedure, 1908.
Final Decision
The court allowed the conversion of the writ petition into a second appeal. Directed the registry to renumber the writ petition as a second appeal and to accept the petitioner's substantial questions of law. The court did not decide the merits of the second appeal.
Law Points
- Order VII Rule 11 CPC
- Section 5 Limitation Act
- Section 100 CPC
- Article 227 Constitution of India
- maintainability of second appeal against dismissal of delay condonation petition
