- (1.) AMITAVA Lala, J. This appeal arises out of the judgment and order passed by the concerned Civil Court, Shahjahanpur dated 28th May, 2007, by which the application of the appellants under Section 5 of the Limitation Act, 1963 has been rejected and accordingly the application under Order IX Rule 13 of the Code of Civil Procedur?, 1908 (hereinafter in short called as 'cpc') has also been rejected holding it to be barred by time.
(2.) THE point for adjudication before us is about maintainability of the appeal. Learned Counsel appearing for both the contesting parties have arrived at a con sensus that the appeal will be heard on informal papers, which was accordingly done at the stage of admission. Mr. U. C. Saxena, learned Counsel appearing for the appellants, contended before this Court that the appeal is maintainable from such order si?ce the same was composite one. In support of his contention, he relied upon paragraph-20 of a judgment of the Supreme Court reported in 2000 (6) SCC 94, Essar Construc-tions v. N. P. Rama Krishna Reddy. Such paragraph-20 is quoted hereunder: "20. Limitation, like the question of jurisdiction may be provided for in a separate statute but it is a defence available in the suit, appeal or application. When the defence is upheld it is the suit or the appeal or the application itself which is dismissed. Of course, the question as far as appeals are concerned may be debatable having regard to the provisions of Order 41 of the Code of dvii Procedur? relating to admission of appeals as an appeal may not be admitted at all because it is barred by limitation. We express no fina? view in the matter. But there is no corresponding repuirement for admission of appli-cations or suits after overcoming the barriers of limitation. A suit which is dismissed on the ground of limitation may be appealed against as a decree. By the same token an application under Section 30 which is dismissed on the ground of limitation is a refusal to set aside the award. " On the other hand, Mr. Alok Kumar Yadav, learned Counsel appearing for the contesting respondents, who obtained the decree, opposed the contention of the appellants on the strength of the judgment of the Supreme Court reported in 2001 (1) SCC 469, Ratan Singh v. Vijay Singh and others. The relevant discus-sion on this issue is available in paragraphs 11 and 12 of such judgment which are as follows: "11. In order that a decision of a Court should become a decree there must be an adjudication in a suit and such adjudication must have deter-mined the rights of the parties with regard to all or any of the matters in controversy in the suit and such determination must be of a conclusive nature. If those parameters are to be applied then rejection of application for condonation of delay will notamounttoa decree. Consequently, dismissal of an appeal as time-barred is also not a decree. We are aware that some decisions of the High Courts have taken the view that even rejecting an ap peal on the ground that it was presented out of time is a decree within the meaning of the said definition. We are also aware of the contrary decisions rendered by High Courts on the same point. Dealing with spme of those decisions a Fuli Bench of the Calcutta High Court [s. P. Mitra, C. J. , Sabyasachi Mukherjee, J. (as he then was) and S. K. Datta, J. ] has held in Mamuda Khateen v. Beniyan Blbi [air 1976 Cal 415: (1976) 2 Cat LJ 357 (FB)] that "if the application under Section 5 of the Limitation Act was rejected the result-ant order cannot be a decree and the order rejecting the memorandum of appeal is merely an incidental order". The reasoning of the Fuli Bench was that when an appeal is barred by limitation the appeal cannot be admitted at all until the application under Section 5 of the Limitation Act is allowed and until then the appeal petition, even iffiled, willremain in limbo, lf the applica tion is dismissed the appeal petition becomes otiose. The order rejecting the memorandum of appeal in such circumstances is merely an incidental order. We have no doubt that the decisions rendered by the High Courts holding the contrary view do not lay down the correct principle of law. "12. In such a situation the mer? fact that the second appeal was dismissed as a corollary to the dismissal of application for condonation of delay has no effect on the decree passed by the first appellate Court. "
(3.) NOW the remaining question before us is whether the appellate Court will ignore such principle as hypertechnical and proceed with the order impugned in the appeal or not. In discussing so, we have to be forgetful about our mindset regarding the matters in constitutional jurisdiction. Such jurisdiction is grounded with natural justice unlike the civil cases, which are grounded on lega? justice, meaning thereby when earlier one proceeds on equity, the later one proceeds on law. Therefore, it is right of a party to take the benefit of such situation against a defaulting party. Such right is inherent in nature. It has been already held in Ratan Singh (supra) that there is no justification for placing a rigid construction on the provisions of the Limitation Act. But the other profile is that in construing statutes of limitation, considerations of hardships are out of place. What is needed is a libera? and broad-based construction and not a rigid or narrow interpretation of the provisions of the Limitation Act. According to us, whether the Limitation Act will be liberally construed or not, that is depending upon the consideration of the appropriate Court not of this Court, whose jurisdiction itself is in question. If the Court passes an order ignoring such jurisdiction, it may lead to irregularity even to nullity. Therefore, we should refrain ourselves from making any comment with regard to merit of condoning the delay. We feel that subsequent judgment is mor? attractive than the earlier one not only because it has been delivered at a later point of time but also for the reason that it is arising out of civil Court's jurisdiction. There is another reason to get us attracted with the later view.;