Unjustified To Dismiss An Appeal Due To Delay When Identical Challenge In Another Appeal Was Heard On Merits: Allahabad High Court

The Allahabad High Court has held that it is not justified to dismiss one appeal on grounds of limitation when an identical order has been challenged on identical grounds in a different appeal within limitation

The bench of Chief Justice Arun Bhansali and Justice Kshitij Shailendra held

“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.”

Appellant approached the High Court against order of the Commercial Court, Kanpur Nagar where it directed return of plaint of Commercial Suit No. 3 of 2020 to the plaintiff-appellant-applicant by invoking powers under Order VII Rule 10 CPC. The order was passed in 2024 and a delay of 154 days was reported in appeal under Section 13(1-A) of Commercial Courts Act, 2015.

In the delay condonation application it was pleaded that due to severe illness of the proprietor of the appellant, he could not keep track of the cases. Upon recovering, when changed his lawyer in all 3 cases, it was found that order had been passed in one suit. Once the appellant had knowledge of the order, it approached the High Court.

It was also pleaded that identical order had been passed in Commercial Suit No. 31 of 2023 returning appellant's plaint. Therefore, both orders were being challenged at the same time by way of separate appeals.

Referring to the decision of the Supreme Court in Government of Maharashtra Vs. Borse Brothers Engineers and Contractors Pvt. Ltd., the Court held that though the commercial appeal was beyond limitation, it would not be justified to dismiss it when an identical order had been challenged before the High Court on the same grounds. The Court further held that the justification of ill health was supported with evidence.

“Further, mere filing of affidavit dated 10.01.2025 in another suit, i.e. Commercial Suit No. 31 of 2023, though before the same Court, is, in itself, not sufficient to form a conclusive opinion regarding previous knowledge of passing of order in different suit.”

Holding that sufficient cause was shown by the appellant for condonation of delay, the Court directed allotment of regular number to appeal and list as a fresh case along with the other appeal.

Case Title: M/s Jay Chemical Works v. M/s Sai Chemicals [COMMERCIAL APPEAL DEFECTIVE No. - 1 of 2025]

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