# Ram Prasad & Ors v. A.D.J., Sitapur & Ors

- **Citation:** (2020) 1 ILRA 1581
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-18
- **Case number:** Misc. Single No. 25879 of 2019
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-prasad-ors-v-a-d-j-sitapur-ors-45267
- **Pages:** 8

## Headnote

-----

A.
Challenging-impugned
orderdismissing sec-5 limitation applicationfiled in an appeal-whether maintainable
u/Art
227-to
be
treated
as
order
disposing application and order passed in
appeal-decree to be prepared-resulting in
consequential dismissal of appeal-would
facilitate filing of Second Appeal u/s.100.

B. Held, In this view of the matter, as,
considering the decision of the Supreme
Court in Shyam Sunder Sharma (supra),
even such orders passed on application
under section 5 of the Act 1963, are to be
treated as not only disposing the said
application but are also to be treated as
an order passed in appeal, rejecting it,
irrespective of the fact whether or not a
consequential order of dismissal is passed
in such appeal and a second appeal would
lie under section 100 C.P.C. against such
an order, a decree of such an order
should also be prepared treating it an
order
passed
on
the
appeal
itself,
resulting in consequential dismissal of
the appeal. This is the ratio of the Full
Bench of the Kerala High Court om
Thambi's
case
(supra)
wherein
the
provisions of the C.P.C., Limitation Act
and various decisions on this issue have
been considered elaborately, which has
been approved by the Supreme Court in
Shyam Sunder's case (supra). In fact, it
1 All. Ram Prasad & Ors. Vs. A.D.J., Sitapur & Ors.
1583
would be in the fitness of things if the
Civil
Courts
while
dismissing
an
application under section 5 of the Act
1963 also pass consequential orders
dismissing the appeal itself, as is also
mandated
under
section
3
of
the
Limitation Act 1963, as, in such a
scenario, a decree of such an order would
necessarily be prepared in terms of the
existing provisions of the C.P.C. and this
would facilitate filing of a second appeal
or its hearing and decision thereon. It is
ordered accordingly. In view of the
above this petition under Article 227 of
the Constitution of India is dismissed as
not maintainable subject, however, to the
observations made hereinabove.

Writ
Petition
dismissed
as
not
maintainable. (E-8)

List of cases cited: -

## Text

1582 INDIAN LAW REPORTS ALLAHABAD SERIES
cancelled only on the basis of the
statements and affidavits filed by the card
holders and that too without supplying
copies of the said statements / affidavits to
the petitioner and without affording an
opportunity to the petitioner to cross
examine them. A copy of the report
submitted by the Area Supply Inspector
has also not been supplied to the
petitioner. Moreover, in his order, the
respondent no. 3 has not at all discussed
the grounds urged by the petitioner in his
reply
in
support
of
his
defence.
Admittedly, the license of the petitioner
has been cancelled without affording any
opportunity of hearing to the petitioner and
without holding any inquiry, whatsoever.

15. In view of the settled legal
position, the cancellation of the petitioner's
fair price shop agreement / license is
ostensibly
in
contravention
of
the
principles of natural justice and cannot be
sustained. The Appellate Authority has
also failed to rectify the error committed
by the Sub-Divisional Magistrate and as
such the order passed by the Appellate
Authority is also liable to be set aside
alongwith the order of the Competent
Authority.

16. For the aforesaid reasons, the
writ petition is allowed. The impugned
order dated 11.04.2018 passed by the SubDivisional Magistrate and the order dated
13.07.2018 passed by the Additional
Commissioner
(Admin)
are
hereby
quashed.

17. No order as to cost.
----------
(2020)1ILR1581

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.12.2019

BEFORE
THE HON'BLE RAJAN ROY, J.

Misc. Single No. 25879 of 2019

Ram Prasad & Ors. ...Petitioners
Versus
A.D.J., Sitapur & Ors. ...Respondents

Counsel for the Petitioners:
Vidya Bhushan Pandey,Illegible, Krishna
Kumar

Counsel for the Respondents:
-----

A.
Challenging-impugned
orderdismissing sec-5 limitation applicationfiled in an appeal-whether maintainable
u/Art
227-to
be
treated
as
order
disposing application and order passed in
appeal-decree to be prepared-resulting in
consequential dismissal of appeal-would
facilitate filing of Second Appeal u/s.100.

B. Held, In this view of the matter, as,
considering the decision of the Supreme
Court in Shyam Sunder Sharma (supra),
even such orders passed on application
under section 5 of the Act 1963, are to be
treated as not only disposing the said
application but are also to be treated as
an order passed in appeal, rejecting it,
irrespective of the fact whether or not a
consequential order of dismissal is passed
in such appeal and a second appeal would
lie under section 100 C.P.C. against such
an order, a decree of such an order
should also be prepared treating it an
order
passed
on
the
appeal
itself,
resulting in consequential dismissal of
the appeal. This is the ratio of the Full
Bench of the Kerala High Court om
Thambi's
case
(supra)
wherein
the
provisions of the C.P.C., Limitation Act
and various decisions on this issue have
been considered elaborately, which has
been approved by the Supreme Court in
Shyam Sunder's case (supra). In fact, it
1 All. Ram Prasad & Ors. Vs. A.D.J., Sitapur & Ors.
1583
would be in the fitness of things if the
Civil
Courts
while
dismissing
an
application under section 5 of the Act
1963 also pass consequential orders
dismissing the appeal itself, as is also
mandated
under
section
3
of
the
Limitation Act 1963, as, in such a
scenario, a decree of such an order would
necessarily be prepared in terms of the
existing provisions of the C.P.C. and this
would facilitate filing of a second appeal
or its hearing and decision thereon. It is
ordered accordingly. In view of the
above this petition under Article 227 of
the Constitution of India is dismissed as
not maintainable subject, however, to the
observations made hereinabove.

Writ
Petition
dismissed
as
not
maintainable. (E-8)

List of cases cited: -

1. Ratan Singh v. Vijai Singh and others, AIR
2001 SC 279

2. Mamooda Khateen & ors. V. Benian Bibi &
ors., AIR 1976 Calcutta 415

3. Nagendra Nath Dey & anr. V. Suresh
Chandra Dey & anr., AIR 1932 PC 165

4. Shyam Sunder Sharma v. Pannna Lal Jaiswal
& ors., AIR 2005 SC 226

5. Thambi v. Mathew, AIR 1988 Ker. 48

6. Musala Annaji Rao v. Boggarapu Papaiah
Setty, AIR 1975 Abdg Ora 73)

7. Gulab Rai v. Mangli Lal, ILR (1884) Allahabad 42

8. Commissioner of Income v. Shahzadi Begum
AIR 1952 Madras 232

9.
Mela
Ram
&
sons
(supra)
v.
the
Commissioner of Income Tax, Punjab, (1956)
29 ITR 607 (SC)

10. Raja Kulkarni v. State of Bombay (AIR 1954 SC 73)

11. Promotho Nath Roy v. W. A. Lee (AIR 1921
Cal 415)
12. Sheodon Singh v. Dariao Kunwar, AIR 1966
SC 1332

13. Rajendra Pal Singh v. Addl. District Judge,
Ghaziabad 2016 (2) ADJ 699

14. S. Kalawati v. Durga Prasad & anr., AIR
1975 SC 1272

15. Abdul Mazid v. Jawahar Lal, ILR 1904 (36)
Allahabad 350

16. Gulab Chand v. Kudi Lal, AIR 1952 MB

(Delivered by Hon'ble Rajan Roy, J.)

1. By means of this petition under
Article 227 of the Constitution of India the
petitioner has challenged an order dated
24.4.2019 passed by the Additional
District Judge (Court No.4)/Special Judge
(E.C.
Act),
Sitapur,
dismissing
the
application of the petitioner under section
5 of the Limitation Act 1963 (hereinafter
referred as 'Act 1963') which was filed
alongwith
the
appeal
filed
by
the
petitioners against the judgment and
decree passed in O.S. No. 141 of 1999
allowing the suit of the private opposite
parties herein. The application under
section 5 was registered as Civil Misc.
Case No.91 of 2014 and the same has been
dismissed by the Appellate Court.

2. A question arose during the course
of hearing as to the maintainability of this
petition and whether a second appeal
under section 100 C.P.C. would not lie
against the impugned judgment ? In
response, the learned counsel for the
petitioner submitted that the order which
has been impugned herein does not fall
within the definition of decree under
section 2(2) of the Code of Civil
Procedure Code 1908, as it does not
conclusively determine the rights of the
parties with regard to all or any of the
1584 INDIAN LAW REPORTS ALLAHABAD SERIES
matters in controversy in the appeal arising
out of the suit, instead it only rejects the
application under section 5 of the
Limitation Act 1963 which was registered
as a separate miscellaneous case. As no
decree of such an order is prepared, a
second appeal under section 100 C.P.C.
will not lie as it lies against appellate
decrees.

3. Learned counsel for the petitioner
relied upon a decision of the Supreme
Court in the case of Ratan Singh v. Vijai
Singh and others, AIR 2001 SC 279 in
support of his contention.

4. At first blush the submission of the
petitioners' counsel appeared to be quite
attractive, especially in view of the law
laid down by the Supreme Court in the
case of Ratan Singh (supra) wherein, the
provision contained in section 2(2),
C.P.C., defining a decree, had been
considered and it was held that an order
dismissing an application under section 5
of the Act 1963 would not be a decree and
that the order rejecting the memorandum
of appeal consequent to rejection of the
application under section 5 of the Act
1963 was merely an incidental order. In
the said decision the Supreme Court
approved the Full Bench decision of the
Calcutta High Court in Mamooda Khateen
& ors. V. Benian Bibi & ors., AIR 1976
Calcutta
415.
The
Supreme
Court
approved the reasoning of the Full Bench
that when an appeal is barred by
limitation, it cannot be admitted at all until
the application under section 5 of the Act
1963 is allowed and until then the appeal,
even if filed, will remain in limbo. If the
application is dismissed, the appeal
becomes otiose. Approving the said view,
the Supreme Court disapproved the
contrary view taken by other High Courts.
The Privy Council decision in Nagendra
Nath Dey & anr. V. Suresh Chandra Dey
& anr., AIR 1932 PC 165, was also
considered in Ratan Singh (supra), but it
was observed that the said decision does
not help in the context of the case before
it, as, it related to the scope and
interpretation of Article 182 of the old
Limitation Act and in this regard it noticed
serious departure made by the Parliament
in the existing Limitation Act.

5. However, this court finds that in a
subsequent decision in the case of Shyam
Sunder Sharma v. Pannna Lal Jaiswal &
ors., AIR 2005 SC 226, a three Judge
Bench of the Supreme Court did not
approve of the earlier view taken in the
case of Ratan Singh (supra) and it held that
an order passed on an application under
section 5 of the Act 1963 rejecting the
same is nevertheless an order passed in
appeal. It disapproved the Full Bench
decision of the Calcutta High Court in
Mamooda Khateen & ors. (supra) and
approved another Full Bench decision of
the Kerala High Court in Thambi v.
Mathew, AIR 1988 Ker. 48, wherein it was
held that an appeal presented out of time
was nevertheless an appeal in the eyes of
law for all purposes and an order
dismissing the appeal was a decree and
that could be the subject of a second
appeal.

6. It is fruitful to refer to the decision
of the Full Bench of the Kerala High Court
in Thambi's case (supra) wherein their
Lordships noticed the provision of Order
XLI Rule 3-A C.P.C. and then held as
under :

"It is clear from sub-rule (1) that
there is a proper presentation of the
appeal filed out of time if it is
1 All. Ram Prasad & Ors. Vs. A.D.J., Sitapur & Ors.
1585
accompanied by an 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 R. 11. S. 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 Ss. 4
- 24. Sub-rule (3) of R. 3A does not render
an appeal properly presented under subrule (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 R.
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 Abdg
Ora 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. Sec. 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 Ss.
4 - 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 filed 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 S. 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 R. 11 of O. 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
O.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 O. 42, CPC. Sub-rule(4) of R. 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 to us clear
that R. 3A of O. 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 KLT 718)."

7. Their Lordships also took note of a
Division Bench of the Allahabad High
Court rendered as early as in 1884 in
Gulab Rai v. Mangli Lal, ILR (1884)
Allahabad 42, wherein it was held as under
:

"In the Civil Procedure Code
there is no separate provision which
allows the appellate court to "reject" a
memorandum of appeal on the ground of
its being barred by limitation. S. 543 is
limited to cases in which the memorandum
of appeal is not drawn up in the manner
1586 INDIAN LAW REPORTS ALLAHABAD SERIES
prescribed by the Code, and it is only by
applying S. 54(c), mutatis mutandis, (as
provided by the last part of S. 582), to appeals
that the Code can be understood to make
provision for rejection of appeals as barred by
limitation. However, S. 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 S. 2 of the Code, as the order, so far as the
Judge was concerned, disposed of the appeal."

8. The Full Bench also noticed
decision of the Supreme Court in Mela
Ram & sons (supra) v. the Commissioner
of Income Tax, Punjab, (1956) 29 ITR 607
(SC), wherein inter alia the Supreme
Court affirmed the decision of the Madras
High Court in Commissioner of Income v.
Shahzadi Begum AIR 1952 Madras 232,
which had held that 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.

9. The Supreme Court in Mela Ram
(supra) also affirmed another decision of
the Calcutta High Court reported in
AIR1954 Cal. 468, in which it had been
held that 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 fit one for
extension of time or both.

10. Referring to the aforesaid cases
the Supreme Court in Mela Ram (supra)
concluded, as observed by the Full Bench,
that 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.

11. The Full Bench also noticed the
decision of the Supreme Court in the case
of Rani Chaudhari v. Lt. Col. Suraj Jit
Choudhary, (1982) 2 SCC 596, which had
been followed in Mela Ram's case (supra)
wherein it had been held as under:

"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."

12. The Full Bench of the Kerala
High Court went on to observe that
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
LXI C.P.C. is to be disposed off according
to law and a dismissal of the appeal for the
reason of delay in its presentation after the
1 All. Ram Prasad & Ors. Vs. A.D.J., Sitapur & Ors.
1587
dismissal
of
an
application
for
condonation of delay is in substance and
effect a confirmation of the decree
appealed against. This Full Bench decision
was affirmed by the Supreme Court in
Shyam Sunder Sharma's case(supra).

13. With regard to its earlier decision
in Ratan Singh's (supra) the Supreme
Court in Shyam Sunder Sharma's case
(supra) held that it was in conflict with the
ratio of the decision in the case of Mela
Ram (supra) and the decision in Rani
Chaudhary v. Lieutenant Col. Suraj Jeet
Chaudhary, 1982 (2) SCC 586, as also, the
Privy Council's decision in Nagendra Nath
Dey (supra), which, though referred, was
not applied on the ground that it was based
on Article 182 of the Old Limitation Act
1908. The Supreme Court was of the view
that the decision in Sheodon Singh v.
Dariao Kunwar, AIR 1966 SC 1332
wherein also it was held that dismissal of
an appeal from a decree on the ground that
the appeal was barred by limitation, was a
decision in the appeal and 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, was also not noticed in Ratan
Singh's case (supra) and latter was in
conflict with the said decision. Thus, the
earlier decision in Ratan Singh's case
(supra) was impliedly overruled.

14. Now in view of the Three Judge
Bench decision of the Supreme Court in
Shyam Sunder Sharma's case (supra) two
things are clear, one, that an order
dismissing an application under section 5
of the Limitation Act 1963 for extending
limitation for filing the appeal is also an
order passed in appeal and the Full Bench
of the Calcutta High Court when it held
that an order rejecting a time-barred
memorandum of appeal consequent upon
refusal to condone the delay in filing that
appeal
was
neither
a
decree
nor
appealable, did not lay down a correct law.
In this view of the matter the irresistible
conclusion is that a second appeal would
lie against such an order as has been
impugned in this writ petition as referred
hereinabove.

15. Similar view has also been
expressed by two coordinate Benches of
this Court in the case of Smt. Premwati &
anr. V. Smt. Munni Devi, (2009) 106 RD
697 and Rajendra Pal Singh v. Addl.
District Judge, Ghaziabad 2016 (2) ADJ
699. In the latter case a specific plea was
raised that the order impugned therein
merely dismissed the section 5 application
but it nowhere stated that the appeal would
also
stand
dismissed,
therefore,
the
argument advanced was that the petition
under Article 227 of the Constitution of
India would be maintainable against such
an order, but, this argument was repelled
in
view
of
the
authoritative
pronouncements discussed in the said
judgment, as have also been referred
hereinabove.

16. There is another three Judges
Bench decision of the Supreme Court in
the case of S. Kalawati v. Durga Prasad &
anr., AIR 1975 SC 1272, wherein, a
similar issue as to whether an order passed
not on merits of the appeal but otherwise
such as on an application for condonation
of delay in filing the appeal, nonprosecution or for any other reason, would
amount to an order passed in appeal was
considered, and it was held that unless the
Court had applied its mind to the case and
after consideration affirmed it the order
1588 INDIAN LAW REPORTS ALLAHABAD SERIES
cannot be said to be one of affirmance and
after noticing the decision of the Privy
Council in Abdul Mazid v. Jawahar Lal,
ILR 1904 (36) Allahabad 350; decision of
the Bombay High Court in Kursondas
Dharamse v. Gangabai, ILR 1907 (32)
Bombay 108 and the decision in Gulab
Chand v. Kudi Lal, AIR 1952 MB the
Supreme Court opined that the principle
behind majority of decisions is thus to the
effect that where an appeal is dismissed on
the preliminary ground that it was not
competent or for non-prosecution or for
any other reason the appeal is not
entertained, the decision cannot be said to
a "decision, on appeal" nor of affirmance.
It is only where the appeal is heard and the
judgment
delivered
thereafter,
the
judgment can be said to be a judgment of
affirmance. However, in view of the later
decision by a Three Judges' Bench of the
Supreme Court in Shyam Sunder Sharma
(supra) the legal position at present is as
discussed earlier i.e. such an order is an
order
passed
in
the
appeal,
hence
appealable under section 100 C.P.C.

17. There are, however, certain
practical difficulties in filing a second
appeal in such circumstances notice of
which needs to be taken by the Court. In
the State of U.P. when a time-barred first
appeal is filed under the Code of Civil
Procedure alongwith an application under
section 5 of the Limitation Act 1965 for
extension of limitation and condonation of
delay, it is the application which is
registered as a miscellaneous case, as has
happened in this case and is decided first.
Only when the delay is condoned the
appeal is registered. If the delay is not
condoned, the application under section 5
is dismissed and the matter is laid to rest.
More often then not no consequential
orders are passed on the appeal, dismissing
it. As the order rejecting the application
under section 5 is not treated as one passed
on the appeal, but, is treated as an order
passed in the miscellaneous case, no
decree is prepared in terms of section 2(2)
C.P.C. This creates a practical difficulty in
filing a second appeal against such an
order under section 100 C.P.C. There was
consensus at the Bar that against such an
order dismissing the application for
condonation of delay under section 5 of
the Act 1963 without any consequential
order for dismissal of the appeal a decree
is not prepared by the Civil Courts in this
State under the existing provisions of
section 2(2) the Code of Civil Procedure
1908.

18. It is not out of place to refer to
Section 3 of the Limitation Act 1963 reads
as under :

"Section 3. Bar of limitation.-
(1) Subject to the provisions contained in
sections 4 to 24 (inclusive), every suit
instituted,
appeal
preferred,
and
application made after the prescribed
period shall be dismissed, although
limitation has not been set up as a
defence."

19. This provision also mandates
dismissal of the appeal itself if it is timebarred and application under section 5 for
extension of limitation/condonation of
delay is rejected.

20. In this view of the matter, as,
considering the decision of the Supreme
Court in Shyam Sunder Sharma (supra),
even such orders passed on application
under section 5 of the Act 1963, are to be
treated as not only disposing the said
application but are also to be treated as an
order passed in appeal, rejecting it,
1 All. Ram Prasad & Ors. Vs. A.D.J., Sitapur & Ors.
1589
irrespective of the fact whether or not a
consequential order of dismissal is passed in
such appeal and a second appeal would lie
under section 100 C.P.C. against such an order,
a decree of such an order should also be
prepared treating it an order passed on the
appeal itself, resulting in consequential
dismissal of the appeal. This is the ratio of the
Full Bench of the Kerala High Court om
Thambi's case (supra) wherein the provisions
of the C.P.C., Limitation Act and various
decisions on this issue have been considered
elaborately, which has been approved by the
Supreme Court in Shyam Sunder's case
(supra). In fact, it would be in the fitness of
things if the Civil Courts while dismissing an
application under section 5 of the Act 1963
also pass consequential orders dismissing the
appeal itself, as is also mandated under section
3 of the Limitation Act 1963, as, in such a
scenario, a decree of such an order would
necessarily be prepared in terms of the existing
provisions of the C.P.C. and this would
facilitate filing of a second appeal or its hearing
and decision thereon. It is ordered accordingly.

21. In view of the above this petition
under Article 227 of the Constitution of
India is dismissed as not maintainable
subject, however, to the observations made
hereinabove.

22. Based on this judgment petitioner
can apply for preparation of a decree of the
order impugned. In the meantime he can
prefer a second appeal relying upon Rule
6-A of Order XX C.P.C. He should annex
the original decree of the Trial Court to
facilitate valuation etc. of the second
appeal.

23. Let a copy of this judgment be
circulated amongst District Judges in the
State of U.P., who in turn shall circulate
the same amongst other Judges of the
District so that the practical difficulty
being faced in filing second appeal as
pointed out by the Members of the Bar, is
removed.

24. The Registrar General of this
Court shall take necessary steps for
circulation of this judgment as aforesaid.
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(2020)1ILR 1588

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.12.2019

BEFORE
THE HON'BLE PANKAJ KUMAR JAISWAL, J.
THE HON'BLE ALOK MATHUR, J.

Misc. Bench No. 34971 of 2019

M/S Ajmani Leasing & Finance Ltd.
 ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Shishir Chandra, Vishnu Pratap Singh

Counsel for the Respondents:
A.S.G.

A. Reserve Bank of India Act, 1934 -
Challenging
order-cessation
of
permission-granted
to
the
petitioner
company-to carry on the business of NonBanking Financial Institution (NBFI)-on
account of-failure in complying-with the
directions-issued
by
RBI-regarding
achievement of the specified Net Owned
Fund (NOF)-under section 45-IA (6)-
matters involving policy decision and
economic tests-judicial review-limitedunless decision found contrary to-any
statutory provision or Constitution-Court
would not interfere-principal of natural
justice-duly complied.

B. Held, that in the matter of policy
decision and economic tests, the scope of