Dismissal Of Appeal On Delay When Appeal With Identical Issue Was Entertained On Merits Not Justified: Allahabad High Court

The Allahabad High Court has held that it is unjustified to dismiss an Appeal on the grounds of delay when another with an identical issue was dealt with on the merits.

The Court was considering an Appeal under Section 13(1-A) of the Commercial Courts Act, 2015, which was reported to be beyond time by 154 days.

The Division Bench of Chief Justice Arun Bhansali and Justice Kshitij Shailendra observed, ".......Whereas, the present appeal arising out of order dated 19.09.2024 passed in Suit No. 3 of 2020 is beyond time, the connected appeal arising out of identical order dated 29.03.2025 passed in Suit No. 31 of 2023 has been filed within time and, therefore, it does not appear to be justified that, in one matter, validity of the order returning the plaint is examined on merits and, in another matter, challenge laid to exactly an identical order on identical grounds is discarded only on account of delay having occurred in filing the appeal."

The Appellant was represented by Senior Advocate Govind Singh, while the Respondent was represented by Advocate Devansh Misra.

Facts of the Case

The Appeal as directed against an order whereby the Commercial Court had directed the return of plaint of Commercial Suit to the Plaintiff-Appellant-Applicant by invoking powers under Order VII Rule 10 Civil Procedure Code. In the affidavit supporting Application seeking condonation of delay, it was stated that the proprietor of the Appellant, had fallen seriously ill and remained under treatment of a doctor at Pratha Hospital, Kanpur; that the business of the Appellant got affected due to the ailments; that the proprietor could not keep track of the case; that the local Counsel also did not inform him about passing of the impugned order; that upon some recovery in health in the month of February-March, 2025, the proprietor changed his Counsel in all the three matters of the Appellant pending before the Kanpur Court and, upon inquiry, it came to the knowledge of newly engaged Counsel that two matters were pending adjudication before the Court, however, the third matter, i.e. the present case under Appeal, had already been decided by the Commercial Court by the order impugned. It was further stated that on legal advice received from the newly engaged Counsel, a challenge was made to the order impugned by filing the instant Appeal.

Senior Counsel for the Applicant/ Appellant submitted that whatever delay occurred in filing the Appeal, the same is on account of physical ailments of the proprietor of the Appellant and the facts having come into light after inquiry conducted by the newly engaged counsel and since the plea of physical ailments is supported by medical evidence annexed to the Affidavit, delay may be condoned in the interest of justice. Contending that both the matters should be heard on merits, particularly when the other connected Appeal was filed within the prescribed period of limitation, he placed reliance on the Supreme Court's ruling in Ummer Vs. Pottengal Subida & Ors. (2018).

On the other hand, Counsel for the Respondent submitted that since false plea of physical ailments being an alleged impediment in timely approaching the Court was taken as an explanation for condoning delay, the Application was liable to be rejected. It was also urged that false and vague plea regarding change of Counsel was taken in the affidavits and once it was established that subsequent Counsel was engaged in January, 2025 itself, filing the Appeal in April, 2025 indicated that grounds were cooked up for seeking condonation of delay. Reliance was placed on the Supreme Court's ruling in Jharkhand Urja Nigam Ltd. and another Vs. Bharat Heavy Electricals Limited: Petition for Special Leave to Appeal (C) No. 9580 of 2025.

Reasoning By Court

The Court after taking into consideration relevant case laws noted that in between the same parties, identical matters were contested and plaints of two suits returned to the Applicant and it does not appear to be justified that, in one matter, validity of the order returning the Plaint is examined on merits and, in another matter, challenge laid to exactly an identical order on identical grounds was discarded only on account of delay having occurred in filing the Appeal.

"Further, the medical prescriptions and reports appended to the application seeking condonation of delay cannot be ignored nor can it be said, for want of specific denial with supporting material, that the plea as regards sufferance of the proprietor of the appellant from physical ailments is utterly false. As far as knowledge of the order impugned dated 19.09.2024 is concerned, the stand taken to the effect that when Shri Anil Kumar Sahu was subsequently engaged as counsel, he made inquiries and found that two out of three matters were pending, whereas the third one, i.e. Commercial Suit No. 3 of 2020, had been decided in terms of the order impugned, appears to be cogent and worth believing", the Court observed.

The Application was accordingly allowed.

Cause Title: M/s Jay Chemical Works vs. M/s Sai Chemicals

Appearances:

Appellant- Senior Advocate Govind Singh, Advocate Imran Syed, Advocate Anil Sahu

Respondent- Advocate Devansh Misra, Advocate Anup Shukla

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