S.M. Iqbal vs Firdous Ahmad Shah

G.A. Kuchhai, J.—This revision petition by the petitioner-defendant in a pending suit before Sub-Judge, Special Mobile Municipal

Magistrate, Srinagar is against the judgment dated 18-2-1993 passed by District Judge, Srinagar. in an appeal, whereby he has dismissed the

application for condonation of delay under Sections 5/14 of Limitation Act, consequently holding the appeal filed by him barred by time.

While considering the admission of this revision petition, some facts need to be narrated which lead to filing the revision petition and also to

facilitate the disposal of the same.

The petitioner happened to be the Collector in Srinagar Development Authority and the respondent occupant of a structure in the shape of a

shop situated at Baranpather, Batamallo, Srinagar. The structure referred to above appears to have been declared an unauthorised construction

and, therefore, demolished by the defendants in the aforesaid suit. Some goods in the shape of hosiery and cosmetics, are alleged to have been

seized from the structure while dismantling it, prompting the respondent to file a civil suit before the Court of Sub-Judge, Special Mobile Municipal

Magistrate, Srinagar where the proceedings were going on and evidence was being recorded, when the respondent suitor filed, an application for

direction to the petitioner to produce the goods before the court. In the meantime the petitioner had sought his premature retirement from

Government service. He resisted the application of the respondent-suitor for production of goods, when vide order dated 13-3-1989, the

petitioner was directed to produce the goods in the shape of hosiery and cosmetics etc. The petitioner challenged the order dated 13-3-1989 in

revision before this court which was dismissed vide order dated 18-6-1989 as not maintainable. The order sought to be revised, being an order

appealable under Order XXXIX, Rule 2, C.P.C., the petitioner filed a review petition before this court against the order dated 18-8-1989

dismissing the revision petition, taking the plea that the petitioner was not a party in the suit, therefore, no direction could be passed against him to

produce the goods. The said review petition came to be dismissed vide order dated 23rd October, 1989. The petitioner field a SLP against the

order dated 23rd of October, 1989 dismissing the review petition before the Hon'ble Supreme Court, which also stands dismissed vide order

dated 17-7-1990 of the apex Court, with liberty to the petitioner to pursue such remedy as may be open to him under law before an appropriate

court. The petitioner, therefore, filed an appeal against the order of Sub-Judge, Special Mobile Municipal Magistrate, Srinagar dated 13-3-1989

before the District Judge, Srinagar after availing of filing of revision and review petitions before this Court and SLP before the Hon'ble Supreme

Court, as indicated above. The appeal in the absence of District Judge was entertained by Additional District Judge, Srinagar and order appealed

against passed by Sub-Judge, Special Mobile Municipal Magistrate, Srinagar was stayed which order was confirmed by the District Judge on his

resuming duties on 21-8-1990. During the pendency of the appeal, the respondent objected to the maintainability of the appeal, taking the plea that

the petitioner has not accompanied the appeal with art application for condonation of delay, which is apparently barred by time, as required under

Order 41, Rule 3(A) of the Code of Civil Procedure. The District Judge, Srinagar, after hearing the parties, did not extend the time in filing the

appeal as applied by the petitioner by way of an application dated 4-5-1991 under Sections 5 and 14 of the Limitation Act during the pendency of

the appeal, consequently dismissing the appeal as barred by time. It is this order of the District Judge dated 18-2-1993 which is in challenge in this

revision petition before this court.

On coming up of the revision petition for admission, the respondent-suitor appeared and I have heard learned counsel for the parties on

admission of the revision petition.

Learned counsel for the petitioner argued that holding the appeal time barred and rejecting the application for condonation of delay under

Sections 5/14 of the Limitation Act is against law, therefore, the order impugned be set aside. Learned counsel submitted that the appeal held time

barred, was in the first instance validly received by the office of Additional District Judge, Srinagar in the absence of District Judge, with office note

that the same was within time and stay order was granted which was later confirmed by District Judge on his assuming duties. Therefore, the

application for condonation of delay was not even required, as the petitioner had explained in the memo of appeal at para No. 26 the

circumstances which appear to have been considered for filing the appeal at delayed stage at the time of filing of the appeal. Therefore,

subsequently the appeal could not be held time barred. He further submitted that in these circumstances the petitioner should not suffer, as is the

established principle of law that no person can suffer at the hands of the court, once there was the office report on the memo of appeal that it was

within time. The appellant was entitled to the opportunity to establish the date for filing the appeal. Learned counsel for the petitioner to support his

argument, referred to 1980 ACJ 134.

Mr. R.A. Jan appearing for the respondent rightly refuted the argument submitting that the report by the office on the memo of appeal regarding

limitation and interim direction by the court are all subject to the contest of the other party at the admission or hearing stage as the respondent has a

right of contest and the court has the power to reconsider the maintainability of the order afresh.

It was further argued by the learned counsel for the petitioner that even the application for condonation was not necessary once the memo of

appeal at para No. 26 gave the circumstances leading to filing the appeal beyond time, learned counsel for the petitioner referred to Meghraj Vs.

Jesraj Kasturjee and Another, ; KLJ 1988 page 335; Nirmal Chaudhary Vs. Bishambar Lal, where the application for condonation of delay u/s 5

of the Limitation Act has been held not mandatory. Their Lordships of the Delhi High Court have gone to the extent that even application for

extending time in filing the appeal beyond time is not necessary as the rule of procedure under Order 41, Rule 3(A) of CPC cannot override the

provision of Section 5 of the Limitation Act and opportunity, therefore, be given to the party to explain the delay.

Agreeing with the rule laid down in the above citations, I am of the opinion that application u/s 5 of the Limitation Act for condoning the delay is

not necessary if otherwise the circumstances are explained which caused the delay in filing the appeal as the powers u/s 5 of the Limitation Act to

condone the delay are wide but such powers have to be exercised judicially once sufficient cause is shown. At the same rime the provision u/s 5 of

the Limitation Act does not envisage or refer to any civil proceedings to establish sufficient cause i.e. condonation can be sought for filing the

appeal/application even after the period of limitation is over. The application after filing the appeal before the District Judge in this case is

composite one under Sections 5/14 of the Limitation Act, the petitioner having based his plea for condonation due to civil proceedings regarding

the same cause due to prosecuting the revision petition and review petition before this Court and SLP before the Hon'ble Supreme Court diligently

and with bona fides. This aspect of the application accommodates specifically the provision of Section 14 of the Limitation Act and not the general

cause to which a party is entitled u/s 5 of the Limitation Act, though under that Section there is no bar to raise the plea of earlier civil proceedings,

but in this case the prayer is specific regarding Section 14 of the Limitation Act which cannot be over-lapped which deals by anology with appeals

in particular where time consumed in civil proceedings regarding the same cause. Therefore, the citations referred to are conspicuously

distinguishable due to the peculiar circumstances of this case wherein the plea for condonation is mainly due to earlier civil proceedings discussed

having failed for want of jurisdiction qualifying therein the provision of Section 14 of the J. and K. Limitation Act.

It was further argued by learned counsel for the petitioner specifically on interpretation of Section 14 of the Limitation Act without dispute that

the petitioner approched this court otherwise by way of revision petition and review petition on the same cause. Not only notice was issued but the

petitions were heard and finally disposed of as dismissed. The petitioner then filed a SLP before the Hon'ble Supreme Court which also, after

hearing, was dismissed and the petitioner was given liberty to take a fresh course available under law. Learned counsel argued that the petitioner

by filing the proceedings indicated establishes not only bona fides but diligence in prosecuting the civil proceedings on the same subject which for

want of jurisdiction or on account of non-maintinability failed. The petitioner engaged counsel to prosecute the proceedings, therefore, he could not

be held having acted without due care and caution. The learned counsel argued that the petitioner did what a prudent litigant is expected to do to

prosecute the cause, relentlessly made best efforts to engage counsel and, therefore, cannot be punished due to defective legal advice. The learned

counsel in this connection cited The State of West Bengal Vs. The Administrator, Howrah Municipality and Others, , where their Lordships while

observing on the scope of Section 5 of the Limitation Act have held that wrong advice of law is sufficient cause to condone the delay in these

words:--

.......... If a party had acted in a particular manner on a wrong advice given by his Legal Adviser, he cannot be held guilty of negligence so as to

disentitle the party to plead sufficient cause u/s 5 of the Limitation Act. In fact that the Judicial Committee observes as follows:

'Mistaken advice given by a legal practitioner may in the circumstances of a particular case give rise to sufficient cause within the section though

there is certainly no general doctrine which saves parties from the results of wrong advice.

Then again on the scope of legal advice their Lordships in Rafiq and Another Vs. Munshilal and Another, have observed as under at page 1401 of

AIR:--

The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the

obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the

things. The party may be a villager or may belong to a rural area and may have no knowledge of the Court's procedure. After engaging a lawyer,

the party may remain supremely confident that the lawyer will look after his interest.

Again in Somnath Banerjee and Others Vs. Vivek Salvi and Others, , while discussing the scope of Sections 5/14 of the Limitation Act in the light

of legal advice, their Lordships of the Calcutta High Court followed the view taken in 1981 SC, giving benefit of extension of time to the party

seeking condonation of delay.

Learned counsel for the petitioner further referred to Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, where it

has been laid down that Courts should take liberal view in condoning the delay and their Lordships in paras Nos. 4 and 5 observed as under at

page 1354:-

When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the

other side cannot claim to have vested right in injustice being done because of a non-deliberate delay,

There is no presumption that delay is occasioned deliberately, or on account of culpable neglignce, or on account of mala fides. A litigant does not

stand to benefit by resorting to delay. In fact he runs a serious risk.

In an earlier judgment reported in Ramdhani Muchi Vs. Khakshardas Tati and Another, on the same point cited regarding condonation of delay u/s

5 of the Limitation Act, it has been observed at page 678: --

a) The question as to the exercise of discretion is ordinarily one of fact. But such discretion must not be exercised arbitrarily but upon sound legal

principles which govern the exercise of such discretion.

b) Limitation Act, Section 5 -- Extension of time on account of the appellant's presenting revision application -- Due diligence in prosecuting the

application and sufficient grounds for applying for review must be proved.

If an appellant claims extension of time on account of his prosecuting a review application, all that the applicant has to show is that he prosecuted

the review application with due diligence and that there were reasonable grounds for filing such an application for review. If these renditions are

fulfilled, the Court is to decide whether it should exercise its discretion to extend time.

c) Limitation Act, Section 5 -- Issue of notice is sufficient evidence of reasonableness of filing review application -- Prospect of success is no test.

In AIR 1917 PC 156 the following observations have been made at page 159: --

If a party bona fide presents an application for review of judgment within the ordinary period limited for appealing, the time occupied by the Court

in disposing of such application will not be reckoned among the days limited for appealing, but will be added thereto, and a memorandum of

appeal represented within such extended period will be received as presented within time.

To the same effect are judgments reported in Raghunath Das Vs. Gokal Chand and Another, and AIR 1962 SC 861 where in given

circumstances condonation of delay has been ruled in favour. I have considered the arguments of the learned counsel for the petitioner and have

gone through the citations referred to by him.

There is no dispute to the established principle of law that u/s 5 of the Limitation Act, which does not specify any condition or defines the

sufficient cause for condonation of delay, the power for condonation of delay is not only discretionary but vast and it is left to the Courts to

accommodate any reasonable ground as sufficient cause which precluded the party in approaching Court to lodge the proceedings for which time

has run out. It is indicated that the petitioner's focus in this case in the application under Sections 5/14 of the Limitation Act is as per circumstances

revealed in Section 14 of the Act, which refers to the earlier proceedings regarding the same cause before a wrong forum having failed for want of

jurisdiction or for like other causes. The petitioner has projected specifically the plea of prosecuting revision/review petitions before the Hon'ble

Supreme Court. No doubt the petitioner remained anxious regarding the litigation and he perused it up to the Hon'ble Supreme Court, but the law

of limitation does not recognise only steps taken but such steps should be with due diligence and in good faith.

Thus the arguments advanced require adjudication on the points, firstly whether the petitioner is entitled to extension of time in filing the appeal

after perusing the revision petition and review petition before this court and SLP before the Hon'ble Supreme Court as prayed in application under

Sections 5 and 14 of the Limitation Act; secondly, whether the provisions of Order 41, Rule 3(A) of CPC are mandatory or directory in nature?

The petitioner consequent to the rejection of his revision petition/review petition by this Court vide orders dated 18-8-1989 and 23-10-1989

respectively and finally by the Hon'ble Supreme Court in SLP placed himself by filing the appeal before the District Judge, Srinagar on the tract as

was held by this court while dismissing the revision petition and the review petition. The appeal has been filed on 1-8-1990 and the application on

4-5-1991 with the plea that the appellant-petitioner having incorporated the plea of condonation of delay in the memo of appeal at para No. 26

and the application for condonation is on account of abundant caution by the petitioner to facilitate the disposal of the appeal after extending the

time.

The application under Sections 5/14 of the J. and K. Limitation Act for extension of time is a composite, one and the petitioner has sought

benefit of both the provisions before the lower appellate court. For that purpose, I need to distinguish both the provisions briefly, though having the

common purpose of extending time of limitation or seeking condonation of delay in filing the suit, appeal, application. Firstly, I quote Section 5 of

the J. & K. Limitation Act hereunder:--

Extension of period in certain cases :--An appeal or an application for a review of a judgment or for leave to appeal or an application to set

aside an order of dismissal of a suit for plaintiff's default or an application to set aside a decree passed ex parte in an original suit or appeal or an

application to bring the heirs of a deceased party on the record or an application to set aside an order of abatement of a suit or appeal or any other

application to which this section may be made applicable by or under an enactment for the time being in force may be admitted after the period of

limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making

the application within such period.

As per the language of the section, the provision is irrespective of the fact, whether the party seeking benefit has prosecuted any proceedings

before any forum regarding the same subject in order to obtain condonation of delay in filing the suit, appeal, application whatever the case may

be. Apparently, the provision of Section 5 of the Act quoted does not refer to any pending proceedings, but is silent on this aspect; that means the

party may not have filed a suit, appeal or an application at all during the prescribed period. All that he has to do is to show sufficient cause in not

filing the proceedings for which he seeks condonation of delay in filing the same after the expiry of the prescribed period. He has to show only

sufficient cause which incapacitated him to file the proceedings for which he seeks condonation of delay in filing of the same. The eventuality of 'not

filing' may be due to the reason appellant-applicant got misled by any order or direction or judgment of the Court in computing the prescribed

period. Thus Section 5 of the Limitation Act does not specifically envisage extension of time due to prosecuting of any other proceedings, appeal,

revision before any forum, though the terms of the Section are wide enough to accommodate any reason to define as sufficient cause within the

consideration of the Court.

Then is the provision of Section 14 of the J. & K. Limitation Act which I quote for ready reference hereunder:--

Exclusion of time of proceeding bona fide in Court without jurisdiction :--

(1) In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another

civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is

founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature,

is unable to entertain it.

(2) In computing the period of Limitation prescribed for any application, the time during which the applicant has been prosecuting with due

diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the same party for the same relief shall be

excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable

to entertain it.

I may at the very out-set observe that this provision does not expressly include the appeal but the provision is applied to the appeals also by way

of anology only and benefit in appropriate cases given to the party. Comparing this provision with that of Section 5, the provision accommodates

the causes for extension of time only beyond the prescribed limitation period, if the party has been prosecuting the proceedings relating to the same

cause of action with 'due diligence' and 'good faith' and such earlier proceedings may have failed due to defect of jurisdiction or other cause of a

like nature. Thus Section 14 of the Limitation Act is a special provision in the Limitation Act for condoning the delay. All that the party has to show

is that he prosecuted the earlier civil proceedings 'with due diligence' and 'in good faith' which the Court will treat as sufficient cause in extending

the time to file the appeal. This provision is independent of Section 5 of the Limitation Act, which is wide enough to accommodate any reason to

the satisfaction of the Court as 'sufficient cause'.

Now dealing with the application filed by the petitioner before the lower appellate Court under Sections 5/14 of the Limitation Act, the

application as per prior proceedings fought by the petitioner in the shape of revision and review petitions before this Court and SLP before the

Hon'ble Supreme Court, is covered by Section 14 of the Limitation Act, because it only envisages prior proceedings on the same subject which

due to defect of jurisdiction or similar cause have failed. It is Section 5 of Limitation Act which is wide enough, as observed, to accommodate any

reason not to file the appeal within the prescribed period, as 'sufficient cause' to the satisfaction of the Court. In Section 14 of the Limitation Act

the only requirement is that the party must have spent the period, which ran against him before a wrong forum for the same cause and it must be

with due diligence and in good faith. As regards 'good faith', it is defined in Sub-section 7 of Section 2 of the Limitation Act in these words :

'good faith'; nothing shall be deemed to be done in good faith which is not done with due care and attention.

The word ""due diligence"" though not defined, but under the dictionary it acquires the meaning, with utmost care and intelligence' rather extra care.

Thus, the earlier proceedings regarding the same cause of action must have been fought by the party with extra-care and intelligence short of any

careless or negligent attitude. To accommodate the prayer of the petitioner before the lower appellate Court, facts, circumstances and observations

of the Courts i.e. decision in the Revision and Review petitions and SLP before the Hon'ble Supreme Court have to be kept in mind before giving

benefit to the party or rejecting his plea.

Facing the situation in this case in the light of the facts, this court has to keep in mind the order passed by the Court on 18-8-1989 in the

revision petition and 23-10-1989 in the Review petition. This Court in unambiguous words has held that the revision petition against order dated

13-3-1989 passed by Sub-Judge, Special Mobile Municipal Magistrate, Srinagar is not maintainable, the order impugned in that petition being

appealable holding it an order under Order XXXIX, Rule 2 of Civil Procedure Code. The Court in clear words records a finding that appeal is

available to the applicant, not the revision in these words:--

In my opinion, the order impugned is covered by Order 39, Rule 1 of the CPC and, therefore, an appealable order under Order 43, Rule 1(r). In

terms of Section 115(2) of the Code of Civil Procedure, this Court cannot vary or reverse any decree or order, against which appeal lies, either to

the High Court or to any subordinate Court thereto.

In these circumstances of the case, I am of the opinion, that this revision is not maintainable. The order impugned is an appealable order and it

could be assailed only in an appeal.

This is a legal observation rather an authoritative legal advice of this Court that revision is not maintainable, only provision of appeal is left open to

the revision-petitioner at the very first instance. The petitioner in a"" defiant manner, ignoring the observations regarding non-maintainability of the

revision petition and only provision of appeal, files review petition before the same Court, taking the plea that there has been an error of law

apparent on the face of the record, the petitioner not being party before the trial court, therefore, sought a review of the order passed in revision

petition. The Court reiterating the observations made in the revision petition, awarded further reasons to the petitioner that he has been contesting

the proceedings before the trial court, and dismissed the review petition, leaving only the appeal available against the order dated 13-3-1989 to the

petitioner. The petitioner appears to have surpassed the legal finding of the Court which for all purposes would have come to the rescue of the

petitioner legally and on facts that revision is not maintainable but only appeal was available, the order having been passed by the trial court under

Order XXXIX, Rule 2 of the Code of Civil Procedure, he leaps to the apex court filing SLP against the order of this court without availing of the

authoritative opportunity, bypassing it, rather overlooking the opportunity without any ambiguity or defect of filing the appeal. He prosecutes the

Special Leave Petition, which got dismissed. Once the SLP got dismissed, the orders of this court in revision petition as well as review petition

stand not only confirmed, but upheld. The appellant-petitioner becomes conscious by the order of the apex court and he files the appeal before the

District Judge, Srinagar against the order at a late stage when there appears no point of return and during the pendency of the appeal, he files an

application under Sections 5/14 of the Limitation Act for condonation of delay, rather extension of time spent, while fighting revision and review

petitions before this Court and SLP before the Hon'ble Supreme Court. Keeping in view the circumstances, facts and above all the findings of this

Court in revision and review petitions, it is difficult to hold, rather to give benefit to the petitioner of the words ""due diligence"" and ""in good faith

having prosecuted the revision petition, review petition before this Court and SLP before the Hon'ble Supreme Court. The lack of bona fides starts

with the appellant the time the revision petition was dismissed by this Court on 18-8-1989 and filing of review petition. He was given sufficient

indication rather authority under law to go in appeal against the order, but he did not do so and appears to have ignored the observations of the

Court in revision petition, and filed review petition which also got dismissed and finally the Special Petition before the Hon'ble Supreme Court.

These proceedings consumed the time to keep the petitioner away from the Court of competent jurisdiction, the time prescribed for appeal having

been elapsed in prosecution proceedings as indicated, but for want of due diligence and good faith. There could be no authoritative advice to the

petitioner than that of the Court order while disposing of the revision petition but for reasons known to the petitioner, which in no case can be said

to be bona fide due to express finding of this court in revision petition, the petitioner did not follow the command rather a mandate to go to the

proper Court and with a lavish understanding chose to bypass the appellate Court, where from he sought the relief after receiving the final reply

from the apex Court. The petitioner admittedly having retired from the post of a Collector could not be held to be a man of ordinary calibre of a lay

thinking person but is supposed to know the gravity of the application of Court order and the law himself over and above the advice tendered to

him by his counsel. He under mistaken legal belief took the proceedings against the findings of this Court to Hon'ble Supreme Court. The step

taken by the petitioner is bound to be at his own risk and cost and cannot be accommodated under the caption of 'good faith' or 'due diligence'.

The petitioner has not cared even with ordinary caution not to speak of utmost caustion required under the intepretation of Section 14 of the

Limitation Act and he was possibly never to undergo the legal fatigue had he followed the order passed by this Court in revision petition. The

action of the petitioner in prosecuting the proceedings before the wrong forum other than the lower appellate Court for want of jurisdiction were

legally ill-conceived and he is not entitled to relief either u/s 5 or 14 of the Limitation Act despite the fact that the earlier proceedings have

specifically failed for want of jurisdiction regarding the same cause. The law does not give benefit of ignorance of law when there is knowledge, but

only innocence can be condoned, that too in special circumstances. Bonus can be given to an illiterate and lay litigant not to a prudent person who

is supposed to know the legal niceties. Once a litigant fails to establish his innocence because of ignorance, he cannot be given benefit under law,

say the Limitation Act.

The Courts are called upon to do justice to the aggrieved equally and cannot focus on one party for his mistaken legal belief for relief at the

cost of other party who has been contesting ill-conceived proceedings at three stages, as in the case in hand, and accrual of legal rights under these

proceedings cannot be shattered for want of due diligence and good faith.

Then the petitioner has to cross the barrier of Order 41, Rule 3(A) of the CPC which requires that once an appeal is presented after the expiry

of period of limitation prescribed, it has to be accompanied by an application supported by an 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. For ready reference the relevant provision is

quoted here-under :-

3-A. Application for condonation of delay:--

(1) When an appeal is presented after the expiry of the period of limitation specified therefor, 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 issue of a notice to the respondent, notice therefore 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.

(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 to, hear the appeal.

From the bare perusal of the provision, it is clear that it aptly applies to the case in hand, where appeal has been filed before the District Judge,

admittedly, barred by time, as reflected in para No. 26 of the memo of appeal and subsequently in the application filed by the petitioner himself

under Sections 5/14 of the Limitation Act on, an objection having been raised by the respondent-suitor before the District Judge. The appeal no

doubt contains the para regarding explanation for filing the appeal beyond time, but same is not identical to the application filed at the subsequent

stage. The averment reveals that the appellant was conscious of his appeal being time barred. He still omitted to file the application along with the

memo of appeal as required under Order 41, Rule 3A of the CPC which gives added power to the Court to adjudicate regarding condonation of

delay and added right to the party to seek condonation. The application is filed on 4-5-1991 while the appeal is filed on 1-8-1990: In the light of

Rule 3A of Order 41 of Civil Procedure Code, the application after filing the appeal is not in accordance with the mandate of the provision. The

provision though procedural yet it serves a caution on the Court that once the appeal is filed beyond time, it has to be accompanied by an

application supported by an affidavit indicating the circumstances to show sufficient cause. Unless the application is decided the Court has no

power even to grant stay of the execution of the decree in question. As has been observed, this provision gives, added right to the appellant to file

the appeal beyond time on showing sufficient cause over and above the provision of Section 5 of the Limitation Act. The procedural provision by

the Legislature cannot be accidental but determined and deliberated to keep off adjudication of appeals filed beyond the period of limitation. Under

the provision, in the absence of application, the appeal is non-existent and cannot be processed except on disposal of the application as envisaged,

favourably. If the application indicated fails, the appeal automatically goes. The learned counsel for the petitioner, as indicated above, has relied on

Nirmal Chaudhary Vs. Bishambar Lal, , wherein the following observations have been made at Page 81 :-

The power of condoning delay conferred by the Limitation Act or by the provisions of the Act is not subject to any rules or practice. The newly

added provision of Rule 3A of Order 41 in the Civil P.C. gives an additional right to a litigant to claim condonation at the time of presenting the

appeal. The provision of Rule 3A of Order 41 of the Code cannot be read in such a way as to repeal the power conferred on a Court by the

substantive provisions for condonation of delay referred to in the aforesaid two provisions'.

The observations of his Lordship Justice Yogeshwar Dayal is qualified by observations made in para 30 at page 31 in these words :--

If an appellant knows that the appeal is barred by time, it goes without saying that he would have to apply for condonation of delay while

presenting the appeal. Otherwise there may be lack of bona fides, and consequently lack of sufficient cause. But, where the appellant is ignorant

that the appeal is barred by time, there is no rule of law, nor any practice that the application for condonation of delay for exercise of power u/s 5

of the Limitation Act read with Section 29(2) thereof or under the proviso to Sub-section (2) of Section 38 of the Act must be filed with the

memorandum of appeal. It cannot be filed at all because the appellant is ignorant about the delay.

The provision of Order 41, Rule 3A of the CPC by its plain reading is mandatory. It bars the Court to grant even the stay of execution till the

application envisaged under the rule is not disposed of. The Rule, as observed, in the above quoted citation does not modify or fetter the powers

of the Court u/s 5 of the Limitation Act, but implication of the Rule has to be applied on the facts and circumstances of each case. As has been

observed, the provision of condoning delay u/s 5 of the Limitation Act is vast and no specific grounds have to be given to show sufficient cause.

On the face of Rule 3A of Order 41 of Civil Procedure Code, the case for condonation has to be dealt on the basis of facts and circumstances of

each individual case and no uniform rule can be liad down to make the procedural provision created by the Legislature redundant. The provisions

have to be read together while giving benefit under Sections 5/14 of the Limitation Act and the provision of Rule 3A of Order 41 of CPC cannot

be omitted or ignored. It has to be read and observed in its strict spirit on the basis of facts established before the Court as sufficient cause.

I, therefore, keeping in view the dimension of the provision, am of the opinion that the appeal filed beyond the prescribed period of limitation

has to be accompanied by application as provided under Rule 3A of Order 41 of CPC irrespective of the fact, whether the appeal is filed at a late

stage as accommodated under the provision of Section 14 of the Limitation Act. Therefore, the provision of Rule 3A of Order 41 of the CPC is

mandatory and not directory. It cannot be clouded by provision of Sections 5 and 14 of the Limitation Act for aid of which this provision has been

incorporated in the Code of Civil Procedure. This provision applies to the appeals and not other proceedings for which condonation can be sought

either u/s 5 or 14 of the Limitation Act.

Learned counsel for the respondent raised an objection that the revision petition is not maintainable and does not fulfil the conditions contained

in Section 115 of the CPC which provides for filing of revision. He argued that appeal having been held barred by time or application for

condonation of delay rejected does not suffer for want of jurisdiction as the Court has the power to decide the appeal as well as the application

filed by the petitioner and the jurisdiction has been exercised validly.

In this petition the petitioner has raised points of law adjudicated upon by the lower appellate Court for which the finding has been recorded on

the issues above. Therefore, it is not necessary to record a separate finding regarding the maintainability of the revision petition which will abide by

the result on the findings recorded.

Now coming to the conclusion, I need to observe that after going through the judgment in question in this revision petition, I find no error of

jurisdiction, otherwise the judgment is legally and factually sound. Keeping in view the observations and findings recorded above, I am of the

opinion that the petitioner knew that the appeal before the court below is barred by time as reflected in the memo of appeal also and was not

ignorant of this fact. Still he did not opt to file application for condonation of delay with the memo of appeal, as required, thus the petitioner

deserves no benefit under the discretionary powers of the Court and under the citations referred to and discussed above as the same get misplaced

because of the defiant attitude of the petitioner, who has not followed the Court verdict and subsequently the procedural provision to file the

application with the appeal. The fact that the appeal was validly received by the appellate Court who stayed the order at the initial stage is

immaterial for a matter which is subject to contest. Therefore, on, that count no legal bonus can be awarded to the petitioner.

Therefore, the revision petition miserably fails and is dismissed without any order as to costs.

The record received from the Court below be returned and the revision file be consigned to records.