1985 (6) TMI 199 - HC - Indian Laws

Summary

Issues Involved:
1. Scope and operation of sub-rule (1) of Rule 3A of Order 41 of the Code of Civil Procedure, 1908.
2. Mandatory nature of sub-rule (1) of Rule 3A.
3. Procedural requirements for presenting a time-barred appeal.
4. Judicial approach towards non-compliance with procedural rules.

Detailed Analysis:

1. Scope and Operation of Sub-rule (1) of Rule 3A of Order 41 of the Code of Civil Procedure, 1908:

The case revolves around the interpretation and application of sub-rule (1) of Rule 3A of Order 41 of the Code of Civil Procedure, 1908. The sub-rule mandates that when an appeal is presented after the expiry of the period of limitation, it must be accompanied by an application supported by an affidavit explaining the reasons for the delay. This requirement is crucial to ensure that the court can decide on the condonation of delay before proceeding with the appeal.

2. Mandatory Nature of Sub-rule (1) of Rule 3A:

The court emphasized that the language of sub-rule (1) of Rule 3A is affirmative and mandates that an application for condonation of delay must accompany a time-barred appeal. This mandatory nature is underscored by the legislative history and the intent behind the rule, which aims to secure a final determination of the question of limitation at the stage of admission of the appeal.

3. Procedural Requirements for Presenting a Time-Barred Appeal:

The court elaborated on the procedural requirements, stating that an appeal presented after the prescribed period should be accompanied by an application for condonation of delay. The purpose is to inform both the appellant and the respondent about the necessity of addressing the delay issue before the appeal can be heard on its merits. The court noted that the absence of such an application at the time of filing does not automatically warrant the dismissal of the appeal. Instead, the court should provide the appellant a reasonable opportunity to remedy the defect.

4. Judicial Approach Towards Non-Compliance with Procedural Rules:

The court referred to several precedents to highlight that procedural rules are designed to facilitate justice, not to impose penalties. It cited the Supreme Court's observations in cases like Sangram Singh v. Election Tribunal, Kotah, and Jai Jai Rani Manoharlal v. National Building Material Supply, Gurgaon, emphasizing that procedural rules should not be construed too technically and should allow for reasonable flexibility. The court concluded that a time-barred appeal should not be dismissed outright due to the absence of an application for condonation of delay at the time of filing. Instead, the court should allow the appellant an opportunity to file the necessary application.

Separate Judgments:

The court acknowledged a previous decision by a learned single judge in Madhukar Daso Deshpande v. Anant Nilkandha Deshpande, which held that an appeal should be dismissed if not accompanied by an application for condonation of delay. The Division Bench overruled this view, stating that it is contrary to the intended operation of sub-rule (1) of Rule 3A. The court also referred to decisions from the High Courts of Kerala, Patna, and Bombay that supported a more flexible approach.

Conclusion:

The court allowed the revision petition, set aside the order under revision, and remitted the case to the appellate court with instructions to first decide the application for condonation of delay. If the application is decided in favor of the appellant, the appellate court should then hear the appeal on its merits. The petition was allowed, emphasizing a fair and just application of procedural rules to facilitate the administration of justice.