Puran Kaur vs Dhian Chand

J.V. Gupta, J.—This revision petition is directed against the order of the Additional District Judge, Gurdaspur, dated February 25, 1987, whereby the appeal was dismissed as not maintainable without the requisite application for condonation of delay u/s 5 of the limitation Act, (hereinafter called the Act.).

The Petitioner, Shrimati Puran Kaur, filed an appeal against the ex parte decree of the trial court dated April 23, 1986. The appeal was filed on September 25, 1986, and prima facie was barred by time. Though no separate application u/s 5 of the Act, for condonation of delay as required under Order XLI Rule 3-A of the CPC (hereinafter called the Code) was filed along with the memorandum of appeal, yet a specfic note had been given at the foot of the memorandum of appeal that the same was being filed beyond the period of limitation for want of the knowledge of the passing of the instant decree and, therefore, a separate application u/s 5 of the Act, was not needed. However, the appeal was duly entertained by the office and notice was issued to the opposite side. At the time of the final hearing an objection was taken on behalf of the Plaintiff Respondent that since no separate application for condonation of delay had been filed as provided under Order XLI Rule 3-A of the Code, the appeal as such was not maintainable. That objection prevailed with the learned Additional District Judge and he, therefore, dismissed the appeal as not maintainable without the requisite application for condonation of delay. According to the learned Additional District Judge, the provisions of Order XLI Rule 3-A of the Code, were mandatory and the non-compliance thereof was fatal.

The learned Counsel for the Petitioner submitted that since the decree under appeal was ex parte, the Petitioner was not in a position to move the specific application u/s 5 of the Act, but in any case. this fact was duly mentioned at the foot of the memorandum of appeal and the office duly entertained the appeal which was subsequently admitted as well by the Presiding Officer. Thus, argued the learned Counsel, the appeal could not be dismissed later on for want of a separate application u/s 5 of the Act. At the most, the Petitioner could be directed to move the necessary application in that behalf which could be disposed of in accordance with law. In support of the contention, the learned Counsel relied upon Des Raj v. Om Parkash (1985-2) 88 P.L.R. 293 and Madhukar v. Anant AIR 1984 Kar 40.

On the other hand, the learned Counsel for the Respondent submitted that the provisions of Order XLI Rule 3-A of the Code, are mandatory and the non-compliance thereof was fatal. Thus, the view taken by the Court below was perfectly valid

After hearing the learned Counsel for the parties I am of the considered opinion that the Additional District Judge acted illegally and with material irregularity in the exercise of the jurisdiction.

Rule 3-A was added by way of the amendment in Order XLI of the Code. Sub-rule (1). there of provides,--

When an appeal is presented after the expiry of the period of limitation specified therefore, it shall be accompanied by an application supported by affidavit setting forth the facts on which the Appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period.

Sub-rule (2) there of reads--

If the Court sees no reason to reject the application without the issue of a notice to the Respondent, notice thereof shall be issued to the Respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under Rule 11 or Rule 13, as the case may be.

Sub-rule (3), further provides,--

Where an application has been made under Sub-rule (1), the Court shall not make an order for the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under Rule 11, decide to hear the appeal.

In the present case, when the appeal was filed, it was specifically mentioned at the foot of the memorandum of appeal, that the appeal was barred by time and in spite of that, it was duly entertained. Notice of the appeal was issued to the Respondents when they took this objection. In these circumstances, Sub-rule (2) of Rule 3-A of Order XLI of the Code, was attracted and the Court should have finally decided the question of limitation before it could proceed to deal with the appeal under Rule 11 or Rule 13 of the said Order. In stead of dealing with the question of limitation, the Court dismissed the appeal as not maintainable, which was not warranted. At that stage, the Court could at the most direct the Petitioner to file the requisite application u/s 5 of the Act because the Court had issued notice of the appeal as contemplated under Sub-rule (2) of Rule 3-A of Order XLI of the Code. In this view of the matter, the appellate Court acted with illegality and with material irregularity in the exercise of the jurisdiction.

Consequently, this revision petition succeeds and is allowed. The impugned order is set aside and the case is sent back to the District Judge, Gurdaspur, for deciding the application for condonation of delay in accordance with law. The Petitioner is directed to move the necessary application for condonation of delay in that Court The parties have been directed to appear in the Court of the District Judge, Gurdaspur, on April 1, 1989, for further proceedings. Necessary application u/s 5 of the Act will be moved by the Petitioner on that date or on any subsequent date which may be fixed by the Court below. The Application as well as the appeal be disposed of expeditiously as, the appeal was filed in September, 1986.