Once Appeal Admitted By HC, Subsequent Transfer To District Court Doesn't Trigger Fresh Limitation: Gujarat High Court
The Gujarat High Court has held that a first appeal against a civil suit decree which was earlier admitted, numbered and later transferred by the high court to the trial court pursuant to enactment of Gujarat Civil Courts Act retains its original status and is not barred by limitation.
In doing so the court held that it cannot be said that such transferred appeals were barred by delay or needed an application to condone such delay.
The court was hearing State's second appeal against a 2009 judgment by Additional District Judge, Sabarkantha which had dismissed the appellant's first appeal and confirmed the order passed by the trial court in 1984.
The trial court judgment was initially challenged before the high court in 1984. The appeal was admitted but due to Section 30(3) of Gujarat Civil Courts Act, the high court had in 2005 transferred the matter to the district court.
The 2005 Act replaced the Bombay Civil Courts Act, 1869 for Gujarat pursuant to which matters pending in a respective court were transferred as per Section 30(3) in accordance with the pecuniary jurisdiction provisions and were stated to continue and to be disposed off by the other Court in accordance with law as if such suit and proceedings had been instituted or commenced in such other Court under this Act.
It was submitted that since the appeal filed before the High Court was admitted, being a regular First Appeal, its transfer to the District Court concerned would also require to be treated as regular appeal filed in time.
However the appellant State said, that the district rejected the first appeal on ground of limitation.
Justice Maulik J Shelat in his order observed:
"It is unfathomable that once the First Appeal filed before this Court was registered as a Regular Appeal and even if there was any delay in presenting such appeal before this Court, it must have been condoned by this Court, otherwise it could not have been given regular number, then question of again filing separate delay application by appellants would not arise especially when said appeal transferred to District Court.
Having gone through the impugned judgment passed by Appellate Court, it appears that Appellate Court concerned had taken very hyper technical approach while deciding the Civil Appeal No.38 of 2005. According to my view, there was no delay in filing the said appeal, inasmuch as such appeal was a transferred appeal as per the order passed by this Court in First Appeal No.1706 of 1984 and it was in fact registered before the Appellate Court by giving new number only, otherwise all purposes such appeal was required to be treated as First Appeal filed before this Court".
The court held that such an appeal could not have been treated as a fresh appeal against the trial court judgment but was required to be treated as a Regular Civil Appeal registered by the High Court transferred due to operation of law.
In view of such facts the court said that the observations made by appellate Court and findings of fact recorded while dismissing the appeal was not only perverse, but grossly erroneous and contrary to law, requiring high court's interference.
The court held that the appeal was not filed beyond limitation period and the view taken by First Appellate Court while dismissing the appeal that it was barred by limitation, is perverse and grossly erroneous.
Allowing the plea the court restored the first appeal and remanded it to the Appellate Court to hear and decide afresh on its own merits.
Case title: STATE OF GUJARAT & ANR. Versus SAMANTSINH GOPALSINH RATHOD & ORS.
R/SECOND APPEAL NO. 244 of 2009