NARAN ANAPPA SHETHI v. JAYANTILAL CHUNILAL SHAH — 1985 DIGILAW 140 (GUJ)

A. P. RAVANI, J. ( 1 ) IS there any virtue in insisting upon the strict compliance of procedural requirement against the considerations of substantial justice? The question has arisen in the background of almost unending struggle been a landlord and a tenant. The petitioner is a tenant against whom the respondent-landlord filed Civil Suit No 460 of 1979 in the court of Civil Judge (SD) Narol. The respondent landlord filed the suit for eviction of suit premises which consist of rooms. The premises are situated in Odhav locality of city of Ahmedabad. The rent of the suit premises is Rs. 57. 00 per month plus other taxes. The respondent-landlord alleged that the petitioner was in arrears of rent from 12/12/1978 till 31/07/1979 It was also alleged that the petitioner-tenant had not paid the taxes. The suit was filed on the ground that the petitioner-tenant was not ready and willing to pay the rent. Though a notice demanding the arreas of rent was served upon him he neglected to pay the rent. It was also alleged that the respondent-landlord required the suit premises for his personal bona fide use. The respondent-landlord also alleged that the petitioner-tenant was causing nuisance and annoyance and therefore he was liable to be evicted from the premises. ( 2 ) ONLY on the ground of arrears of rent the suit was decreed ex-party by the trail court on 23 1980 The petitioner-tenant filed an appeal being Civil appeal No. 89 of 1980 in the court of learned District Judge Ahmedabad (Rural) at Narol. She respondent-landlord appeared in the appeal and submitted written of objections inter alia contending that the appeal was filed beyond the period of limitation and hence it was liable to be rejected on the ground of limitation alone. The appeal was adjourned from time to time. Ultimately on 3/12/1980 when the matter was called out the petitioner-tenant and his Advocate were absent and therefore in their absence the appeal was dismissed solely on the ground that the appeal was filed beyond the period of limitation and there was no satisfactory explanation for the delay in filing the appeal. The petitioner-tenant preferred Civil Revision Application No. 2005 of 1980 in this High Court and challenged the legality and validity of the order passed by the learned District Judge Narol by which he dismissed the appeal. The petitioner-tenant preferred Civil Revision Application No. 2005 of 1980 in this High Court and challenged the legality and validity of the order passed by the learned District Judge Narol by which he dismissed the appeal. The revision application came up for hearing before this Court (Coram: I. C. Bhatt J.) on 15/03/1984 This Court allowed the revision application and quashed and set aside the order passed by the learned District Judge Narol and directed to remand the matter to the lower appellate court for proceeding further in accordance with law. ( 3 ) WHILE disposing of the civil revision application decided on 16/03/1984 this Court made the following observations :"in any view of the matter interest of justice required that the lower appellate Court ought to have waited for some time or ought to have restored the appeal more particularly in view of the fact that the decree of the trial court was an exparte decree and should have given the petitioner some opportunity to explain his case. It is true the lower Appellate Court has power to dismiss the Appeal summarily. However in the facts and circumstances of this case the lower appellate Court ought to have given an opportunity to the petitioner to explain as to how the appeal was within time. In the above circumstances without expressing any opinion on the merits or demerits of the case I remand this matter to the lower appellate court for rehearing of the appeal and for deciding the application for the condonation of delay on merits if any made by the petitioner". Accordingly after the matter was remanded to the lower appellate court the question arose about the condonation of delay in filing the appeal. It is an undisputed position that an application for condonation of delay was filed on 20/12/1984 and not when the appeal was filed. The learned Assistant Judge who heard the appeal came to the conclusion that there was sufficient cause for not preferring the appeal within the prescribed period. However in view of the provisions of Order 41 Rule 3a (1) of the Code of Civil Procedure he held that the application for condonation of delay was not maintainable. The learned Assistant Judge on facts found that there was no application filed for condonation of delay together with the memo of appeal. However in view of the provisions of Order 41 Rule 3a (1) of the Code of Civil Procedure he held that the application for condonation of delay was not maintainable. The learned Assistant Judge on facts found that there was no application filed for condonation of delay together with the memo of appeal. He further found that in the memo of appeal there was mere reference to the delay but there was no prayer for condonation of delay and the memo of appeal was not duly sworn. The application for condonation of delay was submitted much time after the filing of appeal i. e. on 20/12/1984 together with affidavit supporting the contents thereof. Therefore according to him the application having not been filed in conformity with the provisions of Order 41 Rule 34 (1) the same was not maintainable and hence liable to be rejected. This judgment and order is challenged in this revision application. ( 4 ) THE learned counsel for the respondent-landlord has tried to support the judgment and order passed by the learned Assistant Judge. He has plated reliance upon the decision of the Kerala High Court in the case of Padmavati v. Kala reported in AIR 1980 Ker 173 and has also relied upon the decision of the Karnataka High Court in the case of Madhukar v. Aanat reported in AIR 1984 Kar 40 . Before discussing the aforesaid decisions the pro visions of Order 41 Rule 34 (1) of the Code of Civil Procedure be seen which read as follows :"application for condonation of delay. 3 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". If this provision is literally interpreted the decision given by the learned Asst. Judge cannot be interfered with. Hence the question is can this provision be literally interpreted disregarding the considerations of substantial justice? ( 5 ) IN the case before the Kerala High Court there was some delay in filing the second appeal. If this provision is literally interpreted the decision given by the learned Asst. Judge cannot be interfered with. Hence the question is can this provision be literally interpreted disregarding the considerations of substantial justice? ( 5 ) IN the case before the Kerala High Court there was some delay in filing the second appeal. The second appeal was filed on 27/11/1979 Application for condonation of delay was filed on 6/12/1979 On behalf of the appellant it was contended that she was bed-ridden at the relevant time and that she did not know about the dismissal of the appeal and that there was no communication from her advocate in that behalf. She came to know about the dismissal of the appeal only when she sent her son on 8/11/1979 to her advocate. The Kerala High Court after reproducing Order 41 Rule 3 of the Code of Civil Procedure held that the provision is mandatory. A person presenting an appeal after the expiry of the period of limitation specified thereof is required to file an application supported by an affidavit to satisfy the court that he had sufficient cause for not preferring the appeal within such period. Thus if the application for condonation of delay is not accompanied with appeal memo when the appeal is being presented the application is not maintainable at all. The same view is taken by the Karnataka High Court. In the case before the Karnataka High Court there was delay of three days in filing the appeal. The Karnataka High Court held that it was imperative on the part of the appellant to enclose an application along with the appeal memo for condonation of delay as contemplated in Order 41 Rule 3a of the Code of Civil Procedure. It is observed as follows :"in view of the mandatory provision of O. 41. R. 3a. 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. . . . 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. . . . "in short the view taken by both Kerala High Court and Karnataka High Court proceeds on the footing that the provision of Order 41 Rule 3a is mandatory and therefore. the same should be strictly complied with. ( 6 ) WITH respect it is difficult to agree with the views taken by the Kerala High Court and the Karnataka High Court. The provision of Rule 3a (1) in Order 41 of the Code has been inserted by Amendment Act No. 104 of 1976. The subject of inserting this provision was to put an end to the practice of admitting of appeal subject to the decision on the question of limitation. This practice was disapproved by the Privy Council and it stressed the expediency of adopting a procedure under which the final determination of the question as to limitation would be possible before admission of the appeal. Therefore with a view to see that the question of limitation does not remain lingering the provision of Rule 3a in Order 41 has been inserted. ( 7 ) THE provisions of Rule 3a cannot be said to be mandatory for the following reasons : (A) The provision contained in Order 41 Rule 3a of the Code is in the realm of procedure. The procedural law as far as possible cannot and should not be interpreted in such a way so as to take away the rights of the parties. In this connection the observations of the Supreme Court in the case of Sangram Singh v. Election Tribunal Kotah reported in AIR 1955 SC 425 may be referred to :"now a code of procedure must be regarded as such. It is `procedure something designed to facilitate justice and further its ends : not a penal enactment for punishment and penalties : not a thing designed to trip people up. Too technical a construction of sections that leaves no room for raesonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to `both sides) lest the very means designed for the furtherance of justice be used to frustrate it". Too technical a construction of sections that leaves no room for raesonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to `both sides) lest the very means designed for the furtherance of justice be used to frustrate it". Therefore unless there is compulsion the procedural law should be read so as to advance the cause of justice and should not be strictly construed so that the vested rights of the parties to get a matter adjudicated on merits are frustrated. (B) The contention that having regard to the wordings of Rule 3a of Order 41 of the Code the provision has got to be construed as mandatory cannot be accepted. It is true that looking to the phraseology of the provisions of Order 41 Rule 3a one may be tempted to say that the provision is mandatory. This is because of the use of the phrase it shall be accompanied by all application supported by affidavit. While adopting the literal construction of the provision one has got to keep in mind the intention of the Legislature in enacting the provision. As slated above the intention of the Legislature was to see that the practice of deferring the question of limitation and deciding the samc together with the final hearing of the appeal was not proper and that was required to be stopped. Therefore the provision for an application for condonation of delay and for deciding the same before admitting the appeal has been made. There is no other virtue in insisting upon an appeal memo being accompanied by such an application supported by affidavit. As held by the Supreme Court in the case of State of M. P. v. Azad reported in AIR 1967 SC 276 if a statute leads to absurdity hardship or injustice presumably not intended a construction may be put upon it which modifies meaning of words and even the strucure of the sentence. In para 5 of the judgment the Supreme Court has observed : "it is well settled that the use of the word shall does not always mean that the enactment is obligatory or mandatory; it depends upon the context in which the word shall occurs and the other circumstances". In para 5 of the judgment the Supreme Court has observed : "it is well settled that the use of the word shall does not always mean that the enactment is obligatory or mandatory; it depends upon the context in which the word shall occurs and the other circumstances". (C) In the instant case if strict adherence to the provisions of Rule 3a is insisted upon it is likely to result into immense hardship inconvenience and in many cases it will surely lead to miscarriage of justice. There are likely to be cases in which the appellant may be bona fide believing that his appeal was within time; or the court may while considering the appeal at the final hearing stage think that the appeal was filed beyond the period of limitation. At the stage of final hearing only it may come to the notice of the court or it may be pointed out by the other side that the appeal was in fact filed beyond the period of limitation. The court may come to the conclusion that the appeal as a matter of fact was filed after the expiry of the period of limitation. The court may also find that it was a case of bona fide mistake. In such cases if strict adherence to the provisions of Order 41 Rule 3a is insisted upon the appeal will have to be dismissed as being time-barred without considering the question of condonation of dealy because there was no application accompanying the appeal memo praying for condonation of delay. Such an absurd result would never be intended by the Legislature. As a matter of fact the Legislature never wanted to cover such type of cases. The only intention of the Legislature was to see that the question of limitation should be decided initially before admitting the appeal. For achieving this object it is not necessary that there must be a written application praying for condonation of delay and that such application should be accompanied with the appeal memo. (D) Despite the use of the word `shall the provision made is only directory The surest test for determination as to whether the provision is mandatory or directory is to see as to whether the sanction is provided therein. (D) Despite the use of the word `shall the provision made is only directory The surest test for determination as to whether the provision is mandatory or directory is to see as to whether the sanction is provided therein. If one looks at the provision of Order 41 Rule 3a it is clear that there is no such sanction provided in the rule itself. In this view of the matter the provision has got to be construe d as directory. (E) At this stage reference may be made to a Division Bench judgment of the Patna High Court in the case of State of Bihar and others v. Raj A. I. R. 1983 Patna 189. In that case also the provision of Order 41 Rule 3a came up for interpretation and the view taken by the Patna High Court is that the provision is directory and not mandatory. (F) In both the decisions relied upon by the counsel for the respondent-landlord the provisions of Order 41 Rule 3a have been held to be mandatory. No reasons have been assigned why the provision is held to be mandatory. Probably the learned Judge of the High Court of Kerala and High Court of Karnataka who decided the aforesaid cases were persuaded to hold the provision mandatory on account of the language of the provision. With utmost respect it is not possible to agree with the view taken by the Kerala and Karnataka High Courts. The view taken in the two decisions is literal one and it would frustrate the ends of justice. (G) The following passage from Crawford on Statutory Construction (Ed. 1940 Art. 261 P. 516) may be seen : "the question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language ill which the intent is clothed. The meaning and intention of the legislature must govern and these are to be ascertained not only from the phraseology of the provision but also while considering its nature its design and the consequences which would follow from construing it the one way or the other". The aforesaid passage has been approvingly quoted by the Supreme Court in the case of Govindlal Chhaganlal Patel v. Agricultural Produce Market Committee Godhra reported in AIR 1976 SC 963. The aforesaid passage has been approvingly quoted by the Supreme Court in the case of Govindlal Chhaganlal Patel v. Agricultural Produce Market Committee Godhra reported in AIR 1976 SC 963. Applying this well recognised cannon of construction of statutes the conclusion is inescapable that the word `shall used in the provision is directory and not mandatory and therefore it must be read as `may. ( 8 ) THERE is yet another way of looking at the problem. Assuming that an appeal when presented beyond the period of limitation is required to be accompanied by an application for condonation of delay and no such application is filed at the time of presentation of appeal then there is no provision in the rule that such an appeal is required to be straightaway dismissed. In such a case if an application is filed later on then the appeal can be said to have been filed on that day i. e. the date on which the application was filed. Therefore at the most the appellant would be required to explain the delay till the date of filing of the application. However as far as the present case is concerned such a position does not arise. ( 9 ) UNFORTUNATELY the attention of the lower appellate court has not been drawn to all the relevant provisions of law. Assuming that I am wrong in holding that the provision of Order 41 Rule 3a is not mandatory and it is merely directory then even strictly speaking this provision is not applicable to the State of Maharashtra and Gujarat. In State of Gujarat by virtue of the State and High Court Amendments made in Civil Procedure Code similar provision did exist which read as follows :"3 Procedure where appellant applies for condonation of delay in filing the appeal. Where an appellant applies for delay in filing the appeal to be excused notice to show cause shall at once be issued to the respondent and the application shall be finally decided before notice is issued to the Court from whose decree the appeal is preferred under Rule 13". Therefore as far as the State of Gujarat is concerned the first question which arises will be what is the effect of the Amending Act of 1976 and the provision for repeal made therein. Sec. 97 of the Amending Act provides for repeal. Therefore as far as the State of Gujarat is concerned the first question which arises will be what is the effect of the Amending Act of 1976 and the provision for repeal made therein. Sec. 97 of the Amending Act provides for repeal. The relevant part reads as follows : repeal and savings. "97 Any amendment made or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act stand repealed. Hence the question is; Is the provision made by the High Court amendments in Rule 3a (1) in any way inconsistent with the provision brought in force by the Amending Act For the purpose of determination as to whether this provision is inconsistent or not it has got to be judged by applying the test as to whether these two provision can stand together or not? The object behind inserting the provision of Rule 3a of order 41 as stated hereinabove was that the practice of admitting the appeal subject to the provision as to limitation was disapproved by he Privy Council and therefor it was considered necessary to adopt a procedure for securing final determination of the question as to limitation at the stage of admission itself. This was the only object behind this provision. The samc object is achieved even by the Amendment inserted by State of Maharashtra and Gujarat. As per the provisions made by the State amendments in Maharashtra and Gujarat it is necessary that the Court should decide the application for condonation of delay before issuing notice to the court from whose decree appeal is preferred under Rule 13. Therefore at this stage it would he necessary to refer to the provisions of Order 41 Rules 11 and 13 of the Code. As per the provisions of Order 41 Rule 11 the appellate court is empowered to dismiss the appeal without sending notice to the court from whose decree the appeal is preferred and without serving notice or the respondent or its pleader meaning thereby the court can dismiss the appeal summarily. As per the provisions of Order 41 Rule 11 the appellate court is empowered to dismiss the appeal without sending notice to the court from whose decree the appeal is preferred and without serving notice or the respondent or its pleader meaning thereby the court can dismiss the appeal summarily. Order 41 Rule 13 provides that whenever appeal is not dismissed under Rule 11 the appellate court should send notice of appeal to the court from whose decree the appeal is preferred. Thus notice of appeal is required to be issued under Rule 13 only after the appeal is admitted. Thus the provision inserted by High Court amendments in the State of Maharashtra and Gujarat achieved the object which is underlying behind the amendment inserted in the Code by Amending Act of 1976. In this connection Rule 3a as it applies to Gujarat and which is slightly different is abundantly clear. Thus in substance both the provisions i. e. State amendment and the same object. Therefore by no stretch of reasoning it can be said that the High Court amendments in the State of Maharashtra and Gujarat are in any way inconsistent with the provisions of the Principal Act as amended by the Amending Act. ( 10 ) SEC. 97 of the Amending Act saves the provisions of High Court amendment which is consistent with the provisions of the Principal Act. In above view of the matter the provisions of Order 41 Rule 3a as amended by the Amending Act 1976 would not be applicable to the State of Gujarat. Therefore the question of application to the condonation of delay being filed together with the appeal memo at the time of presentation of appeal would not arise at all. Unfortunately the attention of the lower court has not been drawn to the provisions applicable to the State of Gujarat and Maharashtra. Therefore the lower court has been misled and has proceeded on the footing that the provisions inserted by the Amending Act 1976 would be applicable and has come to an erroneous conclusion that application for condonation of delay was not maintainable. ( 11 ) THE matter be looked at from another angle also. The respondentlandlord filed suit for recovery of possession of suit premises under the provisions of the Bombay Rents Hotel and Lodging House Rates (Control) Act 1947 (the Rent Act for short ). ( 11 ) THE matter be looked at from another angle also. The respondentlandlord filed suit for recovery of possession of suit premises under the provisions of the Bombay Rents Hotel and Lodging House Rates (Control) Act 1947 (the Rent Act for short ). The suit was filed in a court constituted under the provisions of sec. 28 of the Rent Act. The petitioner preferred appeal as provided under sec. 29 (2) of the Rent Act. Sec 29 (1) provides that notwithstanding anything contained in any law an appeal shall lie in the City of Ahmedabad to the Bench of two Judges of the Small Causes Court and elsewhere to the District Court. As per the aforesaid provision appeal should be filed within a period of 30 days from the date of decree or order as the case may be and the provisions of Limitation Act secs. 4 5 and 12 also would he applicable. ( 12 ) IN the instant case the petitioner filed an appeal as provided under sec. 29 and he has not preferred appeal as provided under sec. 96 of the Code of Civil Procedure. There is nothing in the Rent Act or in the Rules prescribed made the Rent Act to show that whenever appeal is filed beyond the period of lamination the same should be accompanied by an application for conclusion of delay. Section. 31 of the Rent Act provides that the courts specified in Sections 28 and 29 shall follow the procedure in trying suits procedings applications appeals etc. in the Bombay Rent Control Rules 1949 deal with the procedure to in followed by the court exercising jurisdiction under the Rent Act. Rule 9 and Rule 13 deal with the procedure mind appeals. Both the Rules provide the this Court concerned shall has far as may be and with necessary modifications) follow the practice and procedure prescribed for appeals from original decrees by the court. The very word not of the rule gives discretion to the court. The phrase as far as may be and with necessary modifications indicate that it is open to the court exercising jurisdiction under the Rent Act to apply the provisions of the Code with necessary modification and that too as far as it may be practicable. The very word not of the rule gives discretion to the court. The phrase as far as may be and with necessary modifications indicate that it is open to the court exercising jurisdiction under the Rent Act to apply the provisions of the Code with necessary modification and that too as far as it may be practicable. Nowhere it is provided that the provisions of order 41 of the Cycle of Civil Procedure pertaining to appeal will be applicable and shall have to be followed by the Court hearing appeals under the Rent Act. ( 13 ) THUS the being an appeal under the Rent Act the provisions of Order 41 Rule 3a would not be applicable at all. But virtue of provisions of sec. 29 (1) (a) of the Rent Act the provisions of secs. 4 5 and 12 of the Limitation Act would the applicable. As far as she application under sec. 6 of the Limitation Act for condonation of delay is concerned it Fan even be made orally. This is the view taken by a provision Bench of this High Court in the case of Patel Purshottamdas Motilal v. Patel Chhotabhai Motibhai reported in 20 GLR 918. In para 6 of Judgment it is observed:"ordinarily a party who wants to avail himself on the benefit of sec. 5 of Limitation Act makes an application setting out grounds which in his opinion constitute sufficient cause and praying for condonation of delay and for admitting to hearing an appeal or application which is otherwise time barred. In the instant case the plaintiff did not make such an application. Was that omission be the part of the plaintiff fatal to his ease ? In our opinion though an application for condoning delay is ordinarily necessary it is not a mandatory requirement of law. In a given to ease even on an oral application the Court has got the jurisdiction to per done delay if the facts and circumstances of the ease so warrant. . . ". Even the provisions of sec. 5 of the Limitation Act do not require than an application for condonation of delay must be made in writing. Sec. 5 requires that the appellant or the applicant should satisfy the court that he had sufficient cause for not preferring the appeal within the specified period. . . ". Even the provisions of sec. 5 of the Limitation Act do not require than an application for condonation of delay must be made in writing. Sec. 5 requires that the appellant or the applicant should satisfy the court that he had sufficient cause for not preferring the appeal within the specified period. Thus there is nothing in law as far as the appeals also out of the provisions of the Rent Act are concerned required the appellants to file even a written application for condonation of delay Such all application can be made even orally. Further there is nothing to and case that such an application has got to be accompanied with the appeal memo at the time of presentation of the appeal itself. Such an application can be made even at a later stage. Unfortunately this aspect of the provisions of law was also not brought to the notice of the lower appellate court. ( 14 ) IN the instant case the learned appellate Judge has decided Issue No. 1 in favour of the petitioner-tenant. Issue No. 1 was as follows: Whether there was sufficient cause for not preferring the appeal He held that there was sufficient cause but according to him there was no application for condonation of delay as required under the provisions of Order 41 Rule 3a and therefore the appeal was required to be dismissed as being time barred. As discussed hereinabove the view taken by the learned Assistant Judge is not correct. Since there was sufficient cause for condoning delay it is not necessary to go into the details of the merits. ( 15 ) IN above view of the matter the revision application filed by the petitioner is required to behaviour. The order passed by the learned Assassinate Judge dated 31/01/1955 is quashed and set aside. The lower court is directed to that the appeal as having been filed within the limitation period and decide the same on merits in accordance with law. Rule made absolute accordingly with nv order as to costs. ( 16 ) COUNSEL for the respondent-landlord prays that he may be granted certificate of fitness under Article 134 (1) (c) of the Constitution of India for file appeal before the Supreme court. In any opinion this is not gift case in which the certificate for appeal to the Supreme Court should be given. ( 16 ) COUNSEL for the respondent-landlord prays that he may be granted certificate of fitness under Article 134 (1) (c) of the Constitution of India for file appeal before the Supreme court. In any opinion this is not gift case in which the certificate for appeal to the Supreme Court should be given. Hence Certificate is refused. (ATP) application allowed .