# Som Datt Srivastava v. Smt. Sobha

- **Citation:** (2019) 2 ILRA 1585
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-16
- **Case number:** Misc. Single No. 2761 of 2014
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/som-datt-srivastava-v-smt-sobha-44609
- **Pages:** 5

## Headnote

A. Civil Procedure Code, 1908 - Section96
-
decision
of
appeal
-Suit
for
declaration-by respondent-decreed on the
basis of a compromise-obtained by playing
fraud upon petitioner-appeal filed along with
delay condonation application-rejected-vide
impugned
order-will
amount
to
decree
u/s.2(2)-to be challenged in a second appealpetition not maintainable.

Held
:-
rejection
of
application
for
condonation
of
delay
would
definitely
determine the rights of the parties conclusively
so far as it regards the court expressing it.-
condonation of delay in filing first appeal
would definitely amount to a decree as
contemplated under section 2(2) of the Code
of Civil Procedure, 1908 even without a
separate order dismissing the appeal.

Writ Petition dismissed (E-8)

## Text

2 All. Som Datt Srivastava Vs Smt. Sobha
1585
2(a)(1) of the Industrial Disputes Act,
1947.
Moreover,
several
industrial
disputes
relating
to
the
petitionerCompany are pending before the Labour
Court and Industrial Tribunal of the State
Government.

11. Learned counsel for respondent
no.3 Sri Lalla Chauhan, on the other hand,
has argued on the same lines as have been
considered and relied upon by the
respondent no.2 in passing the order dated
23.8.2013. He has argued that the
definition of "appropriate Government" in
relation
to
any
industrial
dispute
concerning any such controlled industry,
as specified in this behalf, by the Central
Government, may be read along with
Section 2 of the Industries (Development
and
Regulation)
Act,
1951.
Under
Schedule 1 of the Act of 1951, fertilizers
are mentioned at Item no.18. Hence, for
an industry, manufacturing fertilizers, the
"appropriate Government" is the Central
Government. The Fertilizer (Control)
Order has also been issued by the
Government
of
India,
Ministry
of
Agriculture and Rural Development. The
control of the Central Government over
the production and supply of fertilizers
would make the Fertilizer Industry a
controlled
industry
and,
therefore,
amenable to the jurisdiction of CGIT.

12. Very much the same argument
was raised before the Supreme Court in
the cases of Bijay Cotton Mills Limited
(supra) and Management of Vishnu
Sugar
Mills
Limited
(supra).
The
Supreme
Court
has
rejected
such
argument and observed that unless there is
a notification of the Central Government
with regard to bringing any industry under
its control with respect to Industrial
Disputes Act, 1947, the same cannot be
said to be a controlled industry under the
Industrial Disputes Act. The "appropriate
Government" would, therefore, not be the
Central Government, but only the State
Government.

13. Since in this case, the respondent
no.3 had approached the Regional Labour
Commissioner (Central), Lucknow initially
and while conciliation proceedings remained
pending, he also approached the CGIT
directly under the enabling provisions of
Section 2(A)(2) of the Act of 1947, the order
passed by the respondent no.2 dated
23.8.2013 while it is being set aside by this
Court, liberty is granted to the respondent no.3
to approach, either the State Government or
the Labour Court-cum-Industrial Tribunal
directly by filing a claim petition before it
under the enabling provisions of Section
2(A)(2) of the Act. If such a petition is filed,
the same shall not be rejected only on the
ground of delay and shall be considered on
merits, by the appropriate Court.

14. The writ petition stands allowed
to the aforesaid extent.
----------

(2019)10ILR A 1585

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.10.2019

BEFORE

THE HON'BLE MANISH MATHUR, J.

Misc. Single No. 2761 of 2014

Som Datt Srivastava ...Petitioner
Versus
Smt. Sobha ...Respondent

Counsel for the Petitioner:
Sri Suresh Chandra Srivastava.
1586 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondent:
Sri Arvind Kumar Jauhari, Sri Mahesh
Kumar Yadav.

A. Civil Procedure Code, 1908 - Section96
-
decision
of
appeal
-Suit
for
declaration-by respondent-decreed on the
basis of a compromise-obtained by playing
fraud upon petitioner-appeal filed along with
delay condonation application-rejected-vide
impugned
order-will
amount
to
decree
u/s.2(2)-to be challenged in a second appealpetition not maintainable.

Held
:-
rejection
of
application
for
condonation
of
delay
would
definitely
determine the rights of the parties conclusively
so far as it regards the court expressing it.-
condonation of delay in filing first appeal
would definitely amount to a decree as
contemplated under section 2(2) of the Code
of Civil Procedure, 1908 even without a
separate order dismissing the appeal.

Writ Petition dismissed (E-8)

(Delivered by Hon'ble Manish Mathur, J.)

1. Heard Sri S.C. Srivastava, learned
counsel for the petitioner and Sri A.K.
Jauhari, learned counsel for opposite
party.

2. This petition under Article 227 of the
Constitution of India has been filed against
order dated 22.01.2014 passed by the court
below in Misc. Case bearing No.110/2013
(Som Datt Srivastava v. Smt.Sobha). Further
relief for commanding opposite parties not to
waste, damage, alienate, sale, remove or
dispose the property situate at M.M. 4/64,
Vinay Khand, Gomti Nagar, Lucknow has
also been sought.

3. It has been averred in writ petition
that opposite party had filed regular suit
no.361 of 1998 (Smt.Shobha v. Som Datt
Srivastava and others) for declaration.
The said suit was decreed on 09.11.1998
on the basis of a compromise which is
said to have been obtained by playing
fraud upon the petitioner. Consequent
upon the judgment passed in Regular Suit,
petitioner filed belated First Appeal under
Section 96 of Civil Procedure Code, 1908
along with application for condonation of
delay
which
was
registered
as
Miscellaneous Case No.110 of 2013 (Som
Datt Srivastava v. Smt.Sobha). By means
of impugned order dated 22.01.2014, the
application for condonation of delay has
been rejected leading to filing of the
present writ petition.

4. Learned counsel appearing on
behalf of the opposite party at the very
outset had raised a preliminary objection
regarding
maintainability
of
petition
against order dated 22.01.2014 with the
submission that rejection of an application
for condonation of delay would amount to
rejection of appeal and would, therefore,
come within the meaning of 'decree' as
contemplated under Section 2(2) of the
Civil Procedure Code and as as such the
only
remedy
against
order
dated
22.01.2014 would be by way of filing a
Second Appeal instead of a petition. The
learned counsel has relied upon judgment
rendered by Hon'ble the Supreme Court in
Shyam Sunder Sarma v. Panna Lal
Jaiswal and others reported in (2005) 1
SCC 436 in support of his submission.

5.

Rebutting
the
submission
advanced by learned counsel for opposite
party, learned counsel for the petitioner
has submitted that present writ petition
would be maintainable in view of the fact
that only the application for condonation
of delay had been rejected and not the
appeal. Thus, order rejecting application
for condonation of delay would not
2 All. Som Datt Srivastava Vs Smt. Sobha
1587
amount to a decree whereby the petition
would be maintainable. Learned counsel
for the petitioner has also relied upon the
decision in Shyam Sunder Sarma(supra)
with the submission that it has been
clearly held by Hon'ble the Supreme
Court that an order rejecting application
for condonation of delay would amount to
decree only when a separate order
rejecting appeal as a consequence has
been passed. It has been submitted that
since in the present case, only the
application for condonation of delay has
been rejected without any separate order
rejecting the appeal, the same would not
come within the meaning of term 'decree'
and, therefore, the present petition instead
of
a
second
appeal
would
be
maintainable.

6. Heard learned counsel for the
parties and perused the record.

7.

Regarding
the
aforesaid
proposition of law, Hon'ble the Supreme
Court in the case of Shyam Sunder
Sarma(supra) has held has follows:-

"10.
The
question
was
considered in extenso by a Full Bench of
the Kerala High Court in Thambi v.
Mathew [(1987) 2 KLT 848 (FB)] .
Therein, after referring to the relevant
decisions on the question it was held that
an appeal presented out of time was
nevertheless an appeal in the eye of the
law for all purposes and an order
dismissing the appeal was a decree that
could be the subject of a second appeal. It
was also held that Rule 3-A of Order 41
introduced by Amendment Act 104 of
1976 to the Code, did not in any way
affect that principle. An appeal registered
under Rule 9 of Order 41 of the Code had
to be disposed of according to law and a
dismissal of an appeal for the reason of
delay in its presentation, after the
dismissal of an application for condoning
the delay, is in substance and effect a
confirmation of the decree appealed
against. Thus, the position that emerges
on a survey of the authorities is that an
appeal filed along with an application for
condoning the delay in filing that appeal
when dismissed on the refusal to condone
the delay is nevertheless a decision in the
appeal.?

8. A reading of the aforesaid
paragraph of the judgment rendered by
Hon'ble the Supreme Court makes it clear
that an order rejecting an application for
condonation of delay and consequently
the appeal would amount to decree
against which only a second appeal is
maintainable and not a petition under
Article 226 or 227 of the Constitution of
India.

9. In the present case, however, as
per submission of learned counsel for the
petitioner, the situation is a bit different
because by means of the impugned order
only application for condonation of delay
has been rejected while no separate order
rejecting appeal has been passed by the
court concerned.

10. A perusal of the order dated
22.01.2014 makes it clear that only the
application for condonation of delay in
filing appeal has been rejected with no
separate order having been passed in the
appeal itself regarding its rejection.

11.

Regarding
the
aforesaid
proposition, this Court in the case of
Rajendra Pal Singh v. Additional
District Judge, Court No.7, Ghaziabad
and another reported in 2016 (116) ALR
1588 INDIAN LAW REPORTS ALLAHABAD SERIES
212 has clearly held that an appeal filed
along with an application for condonation
of delay when dismissed on refusal to
condone the delay is nevertheless a
decision
in
appeal.
The
relevant
paragraphs of the said judgment is as
follows:-

"7. The law, therefore, on the
subject is clear and unequivocal that an
appeal
presented
beyond
time
was
nevertheless an appeal in the eyes of law for
all purposes and an order dismissing the
appeal on whatever ground was a decree
that could be subject to second appeal. Rule
3A of Order 41 introduced by Amendment
Act 104 of 1976 to the Court, did not in any
way affect the principle. An appeal
registered under Rule 9 or Order 41 of the
Code had to be disposed of according to law
and a dismissal of an appeal for the reason
of delay in its presentation, upon dismissal
of the application for condonation of the
delay, is in substance and effect the
confirmation of the decree appealed against.
Thus, the position that emerges on a survey
of the pronouncements is that an appeal
filed
alongwith
an
application
for
condonation of delay when dismissed on the
refusal to condone the delay is nevertheless
a decision in the appeal."

"8. Submission of the learned
counsel for the applicant that the learned
Appellate Court merely dismissed the
Section 5 application but has nowhere
stated that the appeal would also stand
dismissed, therefore, the petition under
Article 227 would be maintainable,
against the order of such dismissal, in my
opinion, in view of the authoritative
pronouncements stated herein above, the
argument is misconceived.?

12. In the aforesaid decision in
Rajendra Pal Singh(supra), the situation
was the same as in the present case where
only the application filed under Section 5
of the Limitation Act was rejected without
any separate orders for rejection having
been passed in appeal.

13. Upon applicability of the
judgment rendered by this Court in
Rajendra Pal Singh(supra), it is clear
that not only the facts but also the
proposition of law in the present case
would be the same. It is also a pertinent
factor that even though a separate order
may not have been passed rejecting
appeal but the consequence of rejection of
application for condonation of delay
would have the same consequences as
rejection of appeal. Any other view would
lead to absurd consequences such as
maintaining the appeal not to have been
dismissed although the application for
condonation of delay stands rejected.

14. The term 'decree' has been
defined under Section 2(2) of the Code of
Civil Procedure, 1908, which is as
follows:

"(2) "decree" means the formal
expression of an adjudication which, so
far as regards the Court expressing it,
conclusively determines the rights of the
parties with regard to all or any of the
matters in controversy in the suit and may
be either preliminary or final. It shall be
deemed to include the rejection of a plaint
and the determination of any question
within section 144, but shall not include--

(a) any adjudication from which
an appeal lies as an appeal from an order,
or

(b) any order of dismissal for
default.

Explanation.-A
decree
is
preliminary when further proceedings
2 All. Smt. Shashi Rawat Vs State of U.P. & Ors.
1589
have to be taken before the suit can be
completely disposed of. It is final when
such adjudication completely disposes of
the suit. It may be partly preliminary and
partly final; "

15. As can be seen from the definition,
'decree' would mean a formal expression of
adjudication which conclusively determines
the rights of parties and may either be
preliminary or final. It would deem to
include rejection of a plaint. As such, it can
be seen that rejection of application for
condonation of delay would definitely
determine the rights of parties conclusively
so far as it regards the court expressing it.
As such, it can be safely held that rejection
of application for condonation of delay in
filing first appeal would definitely amount
to a decree as contemplated under Section
2(2) of the Code of Civil Procedure even
without a separate order dismissing the
appeal.

16. In view of the aforesaid, it is
clear that against the order impugned in
the present petition, the only remedy for
the petitioner lies in filing a second appeal
and not a petition under Article 227 of the
Constitution of India, which would, thus,
not be maintainable.

17. In view of the aforesaid, the
petition
being
devoid
of
merit
is
accordingly dismissed. The petitioner
would be at liberty to avail remedy
available to him in accordance with law.
----------

(2019)10ILR A 1589

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.09.2019

BEFORE
THE HON'BLE MRS. SANGEETA CHANDRA, J.

Misc. Single No. 24283 of 2019

Smt. Shashi Rawat ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rama Pati Shukla, Sri Jay Krishna Shukla.

Counsel for the Respondents:
C.S.C.

Panchayati Raj Act-Section 95(1)(g)-
proceedings u/s.95(1)(g)-initiated by the D.M.
upon a defective complaint as per the Rules,
1997- regarding return of money advanced for
building toilets by 16 doubtful beneficiariespassed an impugned order ceasing petitioner's
(Gram Pradhan)-financial and administrative
powers -DM has discretionary power of
initiating preliminary inquiry even on his own-
writ not maintainable.

Held :- direction to the D.M to endeavour to
pass a final order under section 95(1)(g), after
holding inquiry as per order VI of Rules 1997
within a period of four months. (Para 13)

Writ Petition Disposed of (E-8)

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

(1). Heard learned counsel for the
parties.

(2). This petition has been filed
challenging the order dated 29.07.2019
passed
by
the
District
Magistrate,
Lucknow, ceasing the financial and
administrative powers of the petitioner
who is Gram Pradhan of Village Barauna,
Development
Block,
Sarojni
Nagar,
Lucknow.

(3). Learned counsel for the
petitioner submits that the impugned