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Himachal Pradesh High Court · body

1986 DIGILAW 27 (HP)

PUNSI DEVI RAJBHER v. PISTA DEVI AGARWALLA

1986-06-02

MANISANA

body1986
JUDGMENT Manisana, J.—The revision petition arises out of the order, dated 24-3-1986 passed by the learned Assistant District Judge, Dibrugarh, in Misc. Appeal No. 22 of 1985. 2. The facts of the case may briefly be stated. The petitioner present ed the appeal in the Court of the Assistant District Judge after the expiry of the period of limitation for the appeal without accompanying an application for not preferring the appeal within the period prescribed in violation of the provisions under Order 4i, Rule 3-A (1), C. P. C. The appeal was, however, registered by mentioning that the appeal was barred by limitation. Afterwards, the appellant filed an application under section 5 of the Indian Limitation Act to condone the delay. The learned Judge rejected the petition for condonation of delay on the ground that the petition ought to have been filed at the time of presentation of the appeal without discussing the merits of the petition. In consequence of it, the learned Judge dismissed the appeal as barred by limitation and vacated the interim order of stay; hence this revision petition. 3. Mr. D. N. Barua, learned Counsel for the petitioner, has submitted that the learned Assistant District Judge ought to have allowed the petition, and has referred me to the decisions as reported in Miss. Nirmala v. Bisheshar, AIR i979 Delhi 26, Mr. and State of Bihar v. Ray Chandi Nath Sahay, AIR 198 3 Pat 189, Mr. S. Birsiwal, the learned Counsel for the opposite party, has contended that the learned Assistant District Judge rightly rejected the petition as there was non-compliance with the provision under Order 41, Rule 3-A (1), C. P. C, and has cited a decision reported in Padmavathi v. Kalu, AIR 1980 Ker 173, to support his contention. 4. I Nirmala (supra), the Delhi High Court has held : "The newly added provision of Rule 3-A of Order 41 in the Civil Procedure Code gives an additional right to a litigant to claim condonation at the time of presenting the Appeal. The provision of Rule 3-A 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." 5. The provision of Rule 3-A 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." 5. In Padmavathi (Supra), the Kerala High Court has held : "It is mandatory for a person printing an appeal after the expiry of the period of limitation specified therefor 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." 6. In State of Bihar v. Ray Chandi Nath Sahay (Supra), a Division Bench of the Patna High Court has held : "Rule 3-A of the Code does not lay down that if the appeal, filed beyond time, is not accompanied by an application under section 5 of the Limitation Act the Court shall reject it. In that view of the matter, I have not the least hesitation in holding that the provisions of Rule 3-A of the Code are not mandatory.” 7. The only question which arises for consideration is what will be effect of the presentation of an appeal in non-compliance with the provisions under Order 41, Rule 3-A (1), C. P. C. 8. Order 41, Rule 3-A (1), C. P. C. runs as follows : "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." (Emphasis added) In Order 41, Rule 3-A (I), C. P. C, the word shall has been used. Therefore, the next question which arises for consideration is whether Order 41, Rule 3-A (1), C. P. C. is directory or mandatory. 9. Therefore, the next question which arises for consideration is whether Order 41, Rule 3-A (1), C. P. C. is directory or mandatory. 9. The Supreme Court, in Raza Buland Sugar v. Municipal Board, AIR 1985 SC 895, has held : "The question whether a particular provision of a statute which on the face of it appears mandatory - inasmuch as it uses the word "shall" as in the present case ^or is merely directory cannot be resolved by laying down any general rule and depends upon the facts of each case and for that purpose the object of the statute in making the provision is the determining factor. The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory." 10. Let me now examine the provisions in Order 41, Rule 3-A (1), C. P. C. in the light of the above principles. The objects and reasons for inserting Order 41, Rule 3-A, C. P. C. as published in the Gazette of India, dated 8-4-1974 are : "Where an appeal is filed after the expiry of the period of limitation, it is the practice to admit the appeal subject to the provisions as to limitation being raised at the time of hearing. This practice has been dis-approved by the Privy Council which has stressed the expediency of adopting a procedure for securing the final determination of the question as to limitation even at the stage of admission of the appeal. New Rule 3-A is being inserted to give effect to the said recommendation” 11. The object of making of the provisions of Order 41, Rule 3-A, C. P. C. is to provide a procedure for final determination as to the question of limitation. The intention of the Legislature in making the provisions is to fix a point in time for deciding the question as to limitation. The object of making of the provisions of Order 41, Rule 3-A, C. P. C. is to provide a procedure for final determination as to the question of limitation. The intention of the Legislature in making the provisions is to fix a point in time for deciding the question as to limitation. Ft is to be decided before the Court proceeds to deal with the appeal under Rule 11 or Rule 13 of Order 41, C P. C. For the purpose of the final determination as to the question of limitation as early as possible even at the stage of admission, and application for condonation of delay is required to be filed alongwith the appeal. 12. The expiration of the period of limitation for an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding and beyond challenge as between the parties. However, in view of section 5 of the Limitation Act, if sufficient cause for excusing the delay is shown, the right may be disturbed. The result is that section 5 of the Limitation Act creates a right in favour of the appellant to claim condonation of delay for not preferring the appeal within the period prescribed. The right may not be an absolute right. Therefore, if the memorandum of appeal is rejected for non-compliance with the provision of Order 41, Rule 3-A (1), C. P. C, a serious injustice will be caused to the appellant. At the same time, section 5 of the Limitation Act also does not provide at what stage the claim is to be made. Therefore, if the memorandum of appeal is rejected for non-compliance with the provision of Order 41, Rule 3-A (1), C. P. C, a serious injustice will be caused to the appellant. At the same time, section 5 of the Limitation Act also does not provide at what stage the claim is to be made. A reading of section 5 of the Limitation Act together with Order 41, Rule 3-A shows that the claim for condonation of delay under section 5 of the Limitation Act is to be disposed of in the manner provided under Order 41, Rule 3-A, C. P. C. In such a situation, if the application for condonation of delay is filed before the Court proceeds to deal with the appeal under Rule II or Rule 13 of Order 41, C. P. C. although it was not filed at the time of the presentation of the appeal, the object of Order 41, Rule 3-A, C. P. C. and the intention of the Legislature will not be defeated by holding the same as directory as the Court can dispose of the matter of condonation as early as possible as intended and required by it. 13. Let me also examine Order 41, Rule 3-A (I), C. P. C. in the context of the provisions under Rule 1 and Rule 2 of Order 41, C. P. C. Order 41, Rule 1, C. P. C. provides, inter alia, that every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such Officer as it appoints on this behalf ; and that the memorandum shall be accompanied by a copy of the decree or of the judgment as provided there under. Under Order 41, Rule 3, C P. C. where the memorandum of appeal is not drawn up in the manner prescribed in Order 41, Rule 1, C. P. C, it may be rejected or it may be returned to the appellant for the purpose of being amended within a time to be fixed by the Court or to be amended then and there, Rules 1, 3 and 3-A of Order 4l, C. P.. C. deal with the same subject-matter relating to the presentation of a memorandum of appeal. C. deal with the same subject-matter relating to the presentation of a memorandum of appeal. However, consequence for not presenting the appeal accompanied by an application for condonation under Order 41, Rule 3-A (1), C. P. C. has not been provided. 14. For the foregoing reasons, I am of the view that Order 41, Rule 3-A (1), C. P. C. is directory. 1 with great respect find difficult to agree with the decision of the Kerala High Court, and I respectfully agree with the conclusions arrived as by the High Courts of Delhi and Patna. 15. In the result, the petition is allowed. The impugned order, dated 24-3-19 6 is set aside and the case is remanded to the Assistant District Judge, Dibrugarh to dispose of the application for condonation of delay in accordance with law. No costs. Petition allowed.