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TMI Blog1985 (6) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... k up the time barred appeal together with the application for condonation of delay for hearing, a preliminary objection, to wit, that time barred appeal having been presented without being accompanied by an application for condonation of delay as required under sub-rule (I of R. 3A of 0. 41 of the Code was liable to be dismissed in limine, appears to have been raised relying upon a decision of a learned single Judge of this Court, in Madhukar Daso Deshpande Anant Nilkandha Deshpande, AIR1984Kant40 . That preliminary objection having been upheld by the appellate Court, by its order dt. 24th July 1984, the appeal itself has come to be dismissed. The validity of that order has been assailed by the State in the present revision petition. This is how, we are concerned and have to deal with the scope and operation of sub-rule (1) of R. 3A of 0. 41 of the Code, in the light of the arguments addressed from the Bar. 3. Su b-rule (1) of R. 3A of 0. 41 of the Code reads : 3A. Application for condonation of delay : - (1) When an appeal is presented after the expiry of the period of limitation prescribed therefore, it shall be accompanied by an application supported by affidavit setting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion of limitation should not, however, be left open till such a late stage as the hearing of the appeal, although that had been till then the usage in India. Again, in Sundara Bai v. Collector ILR 43 Bom 376 : (AIR 1918 PC 135 at p. 136), the Privy Council expressed the view that the Indian Courts should adopt a procedure which will secure, at the stage of admission, the final determination, after due notice to all parties, of any question of limitation affecting the competency of an appeal. 8. The Law Commission of India, in its Twenty-seventh Report, at page 2.37, invited reference to its Fourteenth Report, wherein the above observations of the Privy Council had been noticed and stress was laid on the expediency of adopting a procedure for securing at the stage of admission, the final determination, after due notice of the, question of limitation affecting the competence of I he appeal and suggesting insertion of proposed R. 3A in the Code for- the purpose. 9. When Bill No. 27 of 1974 to amend file C.P.C., 1908, and the Limitation Act, 1963. containing the amendment proposed by the Law Commission, was presented before the Parliament along with the statement of objects Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es (1) and (2) of R. 3A, becomes clear from the legislative history of new R. 3A to which we have already adverted. The scope of subrule (1) being what we have, thus, stated, we shall now turn to the manner of its operation. 13. Sub-rule (1), in its very nature, is a procedural one. It is designed, as seen from its content, to achieve two purposes: (i) to inform an appellant filing a time barred appeal that it would not be entertained if presented, without being accompanied by an application for condonation of delay; and (ii) to inform the respondent in the time barred appeal that it would not be necessary for him to get ready to meet the grounds of objection taken against the judgment and decree appealed against, in that, the appeal itself cannot be heard under R. 11 or R. 13 of 0. 41 of the Code, unless the application for condonation of delay is finally decided in favour of the appellant. No penalty of rejection or dismissal of a time barred appeal for non-compliance with the requirement of the sub-rule is envisaged therein, as has been done under sub-rule (1) of R. 3 of the same 0. 41 of the Code, which empowers the Court to reject a memorandum of appeal not drawn up in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us: Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. 16. Then, as late as in 1983, in Kalipada Das v. Bimal Krishna, AIR1983SC876 , while dealing with a penalty awardable to an appellant who does not comply with a Court's order requiring him to comply with a procedural rule relating to furnishing of Paper Books within the prescribed time, it is said thus : A procedural step which facilitates hearing of the appeal, cannot impede access to justice. 17. A Court, before which a time barred appeal comes up for hearing with no application made along with it under S. 5 of the Limitation Act, seeking condonation of delay, has to necessarily dismiss it not because of non-compliance with sub-rule (1) of R. 3A of 0. 41 of the Code, but because of the operation of S. 3 of that Act. Therefore, what a Court can do when a time barred appeal is presented before it without being accompanied by an application for condonation of delay, is to regard such presentation as defective for non-compliance with sub-ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered by a learned single Judge of this Court, relying upon which the appellate Court has dismissed the appeal by Its order now under revision. 20. It is a decision rendered in a Regular Second Appeal. There, the validity -of a judgment and decree of a first appellate Court dismissing a time barred appeal, on the ground that no application for condonation of delay was filed therein had been assailed. In dismissing that Regular Second Appeal and affirming the judgment and decree of the appellate Court appealed against, the learned single Judge held thus: In view of the mandatory provision of 0. 41, R. 3A of C.P.C., the application for condonation of delay shall be accompanied with the appeal memo, if the appeal is presented beyond time. There is no occasion for the Court to say that the application for condonation of delay might be entertained later and there is no occasion for the appellant to request that such an application should be received even at this stage in the interest of justice. Since application for condonation of delay was not admittedly accompanied with the appeal memo, though it was presented beyond time, the first appellate Court was justified in rejecting t ..... 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