Jurisdiction Of Second Appellate Authority Confined To Issue Of Limitation Where First Appeal Is Dismissed Citing Delay: MP High Court

The Bench comprising of Justice Pranay Verma further observed that if the second appellate authority is of the opinion that the delay ought to have been condoned, the appeal may be allowed by condoning the delay and subsequently, the matter be remanded back to the first appellate authority to be decided on merits- 

When a First Appeal is dismissed by the First Appellate Authority solely upon rejection of an application for condonation of delay in filing the same and Second Appeal is preferred against that order, then the jurisdiction of Second Appellate Authority is confined to consideration of question as to whether the First Appellate Authority has rightly refused to condone the delay. If it holds that delay has rightly been refused to be condoned, then the appeal before it would be dismissed.

If it holds that delay has wrongly been refused to be condoned, then it may allow the appeal, condone the delay in preferring the First Appeal and remand the matter back to the First Appellate Authority to decide the Appeal on merits or may pass such appropriate orders as it may deem fit. However, under any circumstance the Second Appellate Authority has no jurisdiction whatsoever to enter upon merits of the matter and to adjudicate upon the validity of the order passed by the original authority. This is more so since the First Appellate Authority has itself not decided the appeal on merits but has dismissed the same only on ground of delay.

Facts of the case were that the Respondents had challenged an order passed by the Additional Tehsildar under Section 178 of the Madhya Pradesh Land Revenue Code (MPLRC) before the Sub-Divisional Officer. However, the appeal being barred by time, the Authority concerned dismissed the appeal by rejecting the application under Section 5 of the Limitation Act for condonation of delay moved by the Respondents. They then preferred the second appeal before the Additional Commissioner who allowed the same on merits. Aggrieved, the Petitioners moved the Court to challenge the decision of the Additional Commissioner.

The Petitioners submitted before the Court that since the first appeal preferred by the Respondents was dismissed as barred by time, the second appellate authority had no jurisdiction to enter upon merits of the case. They further argued that the authority could have only decided the issue as to whether the Sub Divisional Officer had correctly refused to condone the delay in preferring the appeal before him. However, by allowing the appeal on merits, it had travelled beyond its jurisdiction.

Per contra, the Respondents supported the impugned order by arguing that there was no jurisdictional or procedural lapse on the part of the second appellate authority in passing the same.

Examining the submissions of parties and documents on record, the Court concurred with the arguments put forth by the Petitioners. Considering the facts of the case, the Court noted that the second appellate authority erred in getting into the merits of the case when the first appellate authority had dismissed the appeal only on the ground the same was barred by time-

The appeal preferred by the respondents before the Sub Divisional Officer had been dismissed by him as barred by time upon rejection of their application under Section 5 of the Limitation Act, 1963 for condonation of delay in filing the same. The appeal had not been dismissed on merits. Thus, the only question for consideration before the Additional Commissioner was as to whether the Sub Divisional Officer had rightly refused to condone the delay. If he had come to the conclusion that the Sub Divisional Officer had erred in refusing to condone the delay, then the only course available to him would have been to remand the matter back to the Sub Divisional Officer for decision of the First Appeal on merits. If he had come to the conclusion that the Sub Divisional Officer had rightly refused to condone the delay and had correctly dismissed the appeal as barred by time, he ought to have dismissed the appeal. In any case he had no jurisdiction whatsoever to have himself entered into the merits of the case and to have considered the legality and validity of the partition order passed by the Additional Tehsildar. In doing so he has exercised jurisdiction not vested in him.

With the aforesaid observations, the Court set aside the impugned order holding that the same could not stand judicial scrutiny.

Accordingly, the petition was allowed, and the matter was remanded back to the second appellate authority to rehear the parties and to proceed further in accordance with law and in view of the observations made by the Court.

Case Title: BHANWARLAL AND ORS. VERSUS TOOFAN SINGH AND ANR.

Citation: 2022 LiveLaw (MP) 196

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