Dev Raj Kapta Vs Praveen and Others

The instant petition arises out of order as passed by learned Additional District Judge, Rohru, Shimla, H.P. dated 15.01.2026, whereby an application under Section 5 of the Limitation Act for condonation of delay in filing the appeal came to be dismissed and the judgment and decree as passed by learned Senior Civil Judge, Court No.1, Rohru, District Shimla, H.P. dated 21.09.2024 was affirmed, whereby the suit filed by the present respondents/plaintiffs

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Whether reporters of Local Papers may be allowed to see the judgment?

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was partly decreed and they were held entitled for a sum of Rs.1,92,940/- along with future interest at the rate of 7% per annum from the defendants.

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The facts as emerge in the present case are that Kundu Ram (original plaintiff had died during the pendency of suit and his LRs were brought on record) had filed a suit for recovery of Rs.1,92,940/against Smt. Puran Rekha, Dev Raj Kapta and M/s Maa Hateshwari Fruit Co. through its partners (defendants No.1 and 2) in the Court of learned Senior Civil Judge, Court No.1, Rohru, District Shimla, H.P. It is pleaded in the plaint that deceased plaintiff Kundu Ram was an orchardist/horticulturist by profession and the owner of ‘ Moksh orchard, situated in Village Khangta, PO Tikkar, Tehsil Rohru, District Shimla, The defendants are working as fruits and vegetable commission agents and order suppliers in the name and style of M/s "MAA HATESHWARI FRUIT CO. shop No.37-A, Fruit Terminal Market, Sector-6, Parwanoo, Solan, HP.

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It is the case of the plaintiff that the defendants have deputed their agents in Village Khangta for accepting the apple consignments from different orchardists. The defendants approached the plaintiff personally as well as through their agents for sale of his apple crop and on their persuasion, the plaintiff agreed to sell his crop through them. The oral agreement was entered into at the orchard of the plaintiff after due inspection of apple crop by the agents of the

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defendants and thereafter, in September, 2015, the plaintiff sent consignment of 244 apple boxes to the defendants for sale in the market and the same was duly received by the defendants on 18.09.2015. The defendants sold this consignment for a sum of Rs.1,92,940/- after the deduction of expenses vide bill No.1065 issued by the defendants. The case was set up by the plaintiff that the defendants have not paid the said amount to him. After making various requests, defendant No.2 issued cheque bearing No.913073 dated 10.10.2015 amounting to 1,50,000/- favouring the plaintiff and drawn on ICICI, Kalka. The cheque was issued for the part satisfaction of the balance amount of Rs.1,92,940/- and the plaintiff was assured by the defendants that the remaining amount of Rs.42,940 will be paid in cash after the withdrawal of said cheque. When the plaintiff, presented the aforesaid cheque to the banker of the defendant No.2, the same could not be encashed on account of funds insufficient in the account of defendant No.2 and was dishonoured. Under such circumstances, the plaintiff filed a suit for recovery against the defendants.

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Defendant No.1 had not contested the suit filed by the plaintiff. However, the suit was contested by the defendant No.2 by filing written statement, which was adopted by defendant No.3 also.

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Learned trial Court framed the issues and directed the respective parties to adduce evidence in support of their contentions.

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Vide its judgment and decree dated 21.09.2024, the learned trial Court partly decreed the suit as filed by present respondents and the legal representatives of deceased plaintiff were held entitled for recovery of Rs.1,92,940/- along with future interest @ 7% per annum from the defendants jointly and severally from the date of filing of suit till realization of the decretal amount.

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The defendants instituted an appeal under Section 96 of CPC against the impugned judgment and decree as passed by learned trial Court. Since the appeal was time barred, therefore, application under Section 5 of the Limitation Act was also filed for condonation of delay in filing the appeal. Learned first appellate Court vide its order dated 15.01.2026, dismissed the application as filed by the defendants for condonation of delay.

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Feeling dissatisfied, defendant No.2 has approached this Court by invoking the provisions of Article 227 of the Constitution of India.

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Mr. T.K. Verma, learned counsel for the petitioner, submits that the service of respondent No.5 is not required in the attending facts and circumstances of the case. He further submits that the application filed by the defendants for condonation of delay has been wrongly rejected.

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On the other hand, Mr. Devender K. Sharma and Mr. Prashant Sharma, learned counsel for respondents No.1 to 3 and

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respondent No4, respectively, raised a preliminary objection with respect to the maintainability of present petition. According to them, against the dismissal of an application under Section 5 of the Limitation Act by the learned first appellate Court, the appropriate remedy available to the present petitioner is to invoke the provision of Section 100 of CPC, as per mandate of Hon’ble Supreme Court in Shyam Sunder Sarma vs. Pannalal Jaiswal and others, AIR 2005 SC 226 . The relevant paragraph of the said judgment reads as follows:

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“10. The question was considered in extenso by a Full Bench of the Kerala High Court in Thambi vs. Mathew (1987 (2) KLT 848). 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 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 3A of Order XLI 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 XLI 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.

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This Court is in agreement with the submission as made by learned counsel for the respondents that against the dismissal of

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the application as filed by the present petitioner under Section 5 of the Limitation Act, the present petition, as filed under Article 227 of the Constitution of India, is not maintainable.

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Consequently, in view of objection as raised by learned counsel for the respondents and in view of mandate as laid down by Hon’ble Supreme Court in Shyam Sunder Sarma case (supra) , the present petition is held to be not maintainable

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However, the petitioner is granted liberty to avail appropriate remedy under the relevant provisions of law, including filing of appeal under section 100 of CPC. Learned counsel for the petitioner submits that benefit of Section 14 of Limitation Act be also granted to the petitioner.

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Accordingly, the present petition is disposed of with liberty as aforesaid after granting the benefit of Section 14 of the Limitation Act, strictly in accordance with law. Pending applications, if any, also stand disposed of.

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(Romesh Verma)

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Judge

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10^th July, 2026 (vt)

Dev Raj Kapta v. Praveen and Others

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Dev Raj Kapta v. Praveen and Others

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