Radhelal @ Radheshyam and Another vs Bajrang Lal

Dipak Misra, J.

In this Second Appeal preferred u/s 100 of the CPC (hereinafter referred to as the Code'') the appellants call in question the sustainabilty of the judgment and decree dated 9.7.1999 passed by Seventh Additional District Judge, Bilaspur in Civil Appeal No. 131-A/98 whereby he has reversed the judgment and decree dated 8.10.1997 and 14.10.1997 respectively passed by the learned Civil Judge, Class-II, Katghora, Distt. Bilaspur.

This Court on 21.01.2000, after hearing the learned counsel for the appellants issued notice to the respondent on I.A. No. 549/2000 which was filed for condonation of delay u/s 5 of the Limitation Act, 1963. It is relevant to state here the appeal was filed on 15.10.1999 and the application for coronation of delay was presented on 19.01.2000. When the matter came up for consideration with regard to issue of limitation, Mr. Umesh Trivedi, learned counsel for the respondent raised a preliminary objection that the Appeal is incompetent as petition for limitation was not filed along with memorandum of appeal. To sustantiate his submission he has placed reliance on the decision rendered in the case of Pooran Singh Rajput vs. Indira Rajput, 1997 (I) MPU 280.

Mr. A.N. Choubey, learned counsel for the appellants while admitting the factual position submitted that non-filing of the application for condonation of delay alongwith memorandum of appeal does not make an appeal untenable and the provision enshrined under Rule 3-A of Order 41 of the Code should be regarded as directory and not mandatory. In essence, his submission, is that the decision rendered in the case of Pooran Singh Rajput (supra) requires reconsideration.

To appreciate the rival submissions raised at the Bar, It is apposite to refer Rule 3-A of Order 41 of the Code. It reads as under-

3-A. Application for condonation of delay (1) where 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.

(2) If the Court sees no reason to reject the application without the issues 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 II or rule 13, as the case may be.

(3) 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 the hear for appeal.

The aforesaid provision was inserted by the CPC (Amendment) Act, 1976 (Act No. 104 of 1976). It had its objects and reasons.

It is to be noted that before the amendment where an appeal is to be filed after expiry of the period of limitation it was the practice in some courts to admit the appeal subject to provision as to limitation being raised at the time of hearing. Though this practice was disapproved by privy Council which has expressed the expediency for adopting a procedure for securing the final determination of the question as to limitation even at the stage of admission of appeal. The present Rule 3(A) has been inserted to give effect to the said recommendation. Thee is no quarrel over the proposition that before admission the issue of limitation should be threshed out but, a significant one, what is the effect and impact of non-a companying of an application of limitation supported by an affidavit at the time of presentation of an appeal after expiry of the period of limitation. The learned Single Judge in the case of Pooran Singh Rajput (supra) has held as under-

In view of the above, I find that the appeal as filed was not competent. Since the law has not provided the consequences as to what ought to have done in such a situation, and the provision has not said for dismissal of the appeal, as is provided under Order 11, Rule 17, Civil Procedure Code. The main purpose is advancement of justice and advancement of justice by due obedience as the mandate of the law. The mandate of the law may be in a procedural statue, but is of a mandatory character warranting due compliance and the mandate of Legislature, which is for the purpose of accelerating the cause of justice cannot allowed to be obeyed in disobedience.

In the circumstance, the appeal cannot be dismissed for non-compliance of the provisions of Rule 3-A of Order 41, Civil Procedure Code. The appeal as presented itself was incompetent and ought not to have been accepted by the Registry of the Court. The propriety for the Court, satisfying the cause of justice is to direct for the return of the appeal so that the appellant may have the opportunity for filling his appeal after complying with the provisions of Rule 3-A of Order 41, Civil Procedure Code.

In view of above, the memo of appeal together with certified copy of the judgment and decree appealed against, is directed to be returned to the appellant within three days, Subject to the application having been made by the learned counsel for the appellant, so that the appellant may act according to law.

From the aforesaid enunciation of law, it is quite clear that the learned Single Judge has already held though the procedure is mandatory in nature the provision has not envisaged dismissal of appeal. I respectfully agree with the said view. The learned Single Judge has discussed the purpose of the Rule and eventually, directed the memo of appeal to be returned to the appellant to be presented subject to the satisfaction of conditions as per the Rules. In the present case, I find the application for condonation of delay has already been filed and the respondent had taken time to file the objection. At this juncture, it is not appropriate to return the memo of appeal to be presented as petition for condonation of delay has already been brought on record. The appeal might have been initially incompetent but the Court has jurisdiction to grant time to cure the defect. As in the meantime, the defect has been cured, the matter may be listed for orders on the question of limitation.