Ujjain Development Authority vs Bhangalidutt Verma

The short question involved in this case is that as to whether the view taken by the First Appellate Court that the defects regarding filing of

application for condonation of delay can be cured or not.

This second appeal is filed against the judgment dated 31. 07.2019 passed in First appeal No.17-A/2019 by VII Additional District Judge, Ujjain

whereby the First appeal preferred by the appellant was dismissed, as no application for condoning the delay of two days in filing the appeal was

preferred by the appellant.

Learned counsel for the appellant would submit that the appeal was preferred on 26.04.2019. The reader of the First Appellate Court examined the

limitation and found it within time. The appeal was admitted, stay application of the appellant was allowed, stay was granted but at the time of final

hearing of the appeal, it was noticed that there was a delay of two days in filing the appeal, for which the application was not filed or delay was not

explained, therefore, the First Appellate Court dismissed the appeal without considering the merits of the case.

The Hon'ble Supreme Court had dealt with the similar situation in the case of State of MP and Another Vs. Pradeep Kumar and Another reported

in (2000) 7 SCC 372. Para nos. 10 and 11 of the order reads as under:-

“10. What is the consequence if such an appeal is not accompanied by an application mentioned in sub-rule (1) of Rule 3-A? It must be noted that

the Code indicates in the immediately preceding rule that the consequence of not complying with the requirements in Rule 1 would include rejection of

the memorandum of appeal. Even so, another option is given to the court by the said rule and that is to return the memorandum of appeal to the

appellant for amending it within a specified time or then and there. It is 1o be noted that there is no such rule prescribing for rejection of memorandum

of appeal in a case where the appeal is not accompanied by an application for condoning the delay. If the memorandum of appeal is filed in such

appeal without accompanying the application to condone delay the consequence cannot be fatal. The court can regard in such a case that there was

no valid presentation of the appeal. In turn, it means that if the appellant subsequently files an application to condone the delay before the appeal is

rejected the same should be taken up along with the already filed memorandum of appeal. Only then the court can treat the appeal as lawfully

presented. There is nothing wrong if the court returns the memorandum of appeal (which was not accompanied by an application explaining the delay)

as defective. Such defect can be cured by the party concerned and present the appeal without further delay.

11 No doubt sub-rule (1) of Rule 3-A has used the word ""shall"". It was contended that employment of the word ""shall"" would clearly indicate that the

requirement is peremptory in tone. But such peremptoriness does not foreclose a chance for the appellant to rectify the mistake, either on his own or

being pointed out by the court. The word ""shall"" in the context need be interpreted as an obligation case on the appellant. Why should a more

restrictive interpretation be placed on the sub-rule? The rule cannot be interpreted very harshly and make the non-compliance punitive to appellant. It

can happen that due to some mistake or lapse an appellant may omit to file the application (explaining the delay) along with the appealâ€​

This Court also has taken similar view in the case of Premchand Soni through Lrs Janki Bai and others Vs. Harish Chand reported in 2012(1)MPLJ

65 and Man Khan Vs. Dr. Keshav Kishore and others vide order dated 05.02.2019 rendered in SA No.2043/2018.

The prayer of the appellant is opposed by the respondent on the grounds that neither the application for condonation of delay was filed nor the delay

was explained, therefore, First Appellate Court has rightly dismissed the appeal. Reliance has been placed on Jairam Vs. Baburao reported in 1986

MPWN N 122.

This judgment of the MP High Court cannot be followed in view of the judgment passed by the Hon'ble Supreme Court in the case of Pradeep

Kumar (Supra).

Following the principal laid down in the judgment of Pradeep Kumar (Supra), the appeal deserved to be and is allowed hereby.

The judgment of the First Appellate Court dated 31.07.2019 is set aside. The matter is remanded back to the First Appellate Court to consider it

afresh after granting opportunity to the appellant to cure the defects and pass the appropriate order in accordance with law.

With the aforesaid the present petition stands allowed and disposed off.