JUDGMENT 1. - Common question is involved in all the above mentioned four special appeal as to what is the effect if the memorandum of appeal presented after expiry of period of limitation specified therefor is not accompanied by an application supported by an affidavit as required under Order 41 Rule 3-A of the Civil Procedure Code? Whether order 41 Rule-z-A of the Code of Civil Procedure is mandatory or directory? Other questions are involved which are also common and therefore all the four special appeals listed above are being disposed of by this common judgment. 2. The learned Single Judge under his order dated January 28. 1985 decided five writ petitions in which clause (a) of sub-rule (2) of rule 8 of RSR was under challenge. The learned Judge held that the aforesaid clause is arbitrary and unreasonable and is violative of the right to equality guaranteed under Articles 14 and 16 of the Constitution and therefore, it cannot be upheld and must be struck down The effect of aforesaid view was that except S.B. Civil Writ Petition No. 634/82 Karrar Singh v. State of Rajasthan and others , the other four writ petitions were allowed and the orders rejecting the representation of the petitioners-respondents herein. were quashed and a direction was issued that the representations of the respondents with regard to correction in the date of birth should be considered on merits without taking into consideration the provisions contained in clause (a) of sub-rule (2) of rule 8 of RSR. 3. Four D. B. Civil Special Appeals were filed in this court and they were defective and as such :defect numbers were assigned to each of them. Special Appeals State v. Vijay Singh , State v. Balkrishan , State v. Samarathlal and State v. Hari Singh , were assigned D. B. Civil Special Appeal (defect No 1207/1981, 1208/85, 12(,9/85 and 210/85 (respectively. The defect numbers were assigned to each of the appeals because one of the defects in each of them was that they were filed after specified period of limitation for filing appeal under section 18 of the Rajasthan High Court Ordinance 19.9 which is 30 days from the date of order. All the four special appeals against the order of the learned Single Judge. dated January 28, 1985 was filed on July I, 1985. All the four special appeals against the order of the learned Single Judge. dated January 28, 1985 was filed on July I, 1985. Except in S B Civil Special Appeal (defect) No. 1208/1985 certified copy of the order was not filed, in rest of the three special appeals Even in Special Appeal No. 1208/85 (defect) a perusal of certified copy will show that an application for certified copy was filed on April 17, 1987 and copy was received on May 21. 1985. Office made objection that the special appeal was barred by 88 dais and no application for condonation of delay has been filed by the Government Advocate. The Court allowed time to the Government Advocate to remove the defects and also passed pre-emptory order on August 20, 198.5. An application under section 5 of the Limitation Act was only filed on October 16, 1985 which was accompanied by an affidavit of Shri P.C Puri Dy. Director, Police Forensic Science Laboratory Jaipur. Because a pre-emptory order as already stated earlier, was passed and it was ordered by the court on December 3, 1985 that proper application should be filed in view of the pre-emptory order, because the defects have not been removed before the expiry of the pre-emptory order The learned Government Advocate filed an application on February 4. 1986 praying for re-calling of the pre-emptory and for treating the application also as an application under Section 5 of the Limitation Act and to condone the delay. In the remaining three Special appeals, in which as already stated earlier no certified copy of the order was filed alongwith the memorandum of appeal, applications have been filed for dispensing with the filing of the certified copy of the order. No orders were passed on the aforesaid three applications and time was sought/ allowed to remove the defects. Certified copy of the order of the learned Single Judge in all the three cases was filed on September 16, 1985. No orders were passed on the aforesaid three applications and time was sought/ allowed to remove the defects. Certified copy of the order of the learned Single Judge in all the three cases was filed on September 16, 1985. Even the n no application under sections of the Limitation Act was filed and the application was only filed on October 16/17, 85 which was accompenied by the affidavit of officer-in-charge of the case Like Special appeal No. 1208/85 (defect), also in three cases pre-emptory order was passed and in view of the pre-emptory order and as per the direction of the court applications were filed in the month of January/February 1996, praying for re-calling the pre-emptory cyder and to treat the application as an application under section 5 of the Limitation Act. 4. The first question is as to whether a certified copy of the order should have been filed along with the memorandum of special appeal and if the same has not been filed what is its effect? It cannot be disputed that all the four special appeals have been filed after the prescribed period of limitation which is 30 days for filing special appeal under section IS of the Rajasthan High Court Ordinance, 1949. Under rule 134 of the Rules of the High Court of Judicature for Rajasthan 1952 (for short, the Rules) which deals with special appeal, memorandum of appeal shall be drawn up in accordance with Rules 125, 130 and 131 and should be accompanied by a certified copy of the judgment or order appealed from alongwith two extra typed copies of the judgment or order. Dispensing with the production of the copy of the judgment or order is provided under rule 156 of the Rules which reads as under: "156. Dispensing with the production of copy of judgment. if it is desired that copy of any judgment or formal order required to be filed along with memorandum of appeal (operation present under rule...be dispensed with and a not (sic not) to this effect shall be made on the memorandum or petition as the case may be if no such note is made a subsequent request for that purpose shall note has been made, the Registrar shall pass suitable order. If such copy or petition is not dispensed with, the period between the day on which the appeal or petition was presented & the day on which the order is made shall not be excluded in computing the period of limitation for the appeal or petition unless the Court on an application received under section 5 of the Limitation Act otherwise direct, but if the copy is dispensed with, the appeal or petition shall be deemed to have been duly presented on the day on which it was tiled," A Division Bench of this court in State of Rajasthan v. Bal Singh 1983 RLW page 7 , considered the scope of rule I i6 of the Rules. In that case a special appeal under section 18 of the Rajasthan High Court Ordinance, 1949 was filed. It was not accompanied, by the certified copy of the order appealed against. The office pointed some defects and one of the defects was that certified copy of the judgment has not been filed. As the defects were not removed it was ordered that the appeal be listed for orders before the Court. Time was allowed to remove the defects and then a pruplr was made that filing of the certified copy of the judgment may be dispensed with and on that an order was made that this would be considered on the next date. Certified copy of the judgment was not produced and therefore the court observed that: "No note has been appended to the memo of appeal for dispensing with the production of the certified copy. In view of rule 156 subsequent request for dispensing with the certified copy of the judgment cannot be entertained. Rule 134 of the High Court Rules deals with special appeal. It amongst others provides that the memorandum of appeal shall be drawn up in accordance with Rules. 12, 130 and 131 of Chapter IX of the High Court Rules and shall be accompanied by a certified copy of the judgment or order As stated above the appeal ups 18 was not accompanied by the certified copy of the judgment." In view of the fact that certified copy of the judgment was not filed and defects were not removed till the case was heard, the court refused to cispense with the production of certified copy of the judgment. Consequently. Consequently. the appeal was rejected being defective In our opining in the present four cases rule 155 not actually attracted In one of the special appeals No. 1208/85 (defect) as already stated earlier, certified copy of the order has been filed whereas in the remaining three special appeals, though certified copies of the order have not been filed, no note has been appended to the memorandum of appeal, but a separate application had been filed requesting that the filing of certified copies may be dispensed with Whether a note is or is not appended to the memorandum to the effect as required under rule 156 requesting for dispensing with the filing of the certified copy of the order will not make any difference in case a separate application is filed under rule 156 of the Rules requesting that filing of the certified copy may be dispensed with as it will be sufficient compliance with rule 156 of the Rules. But there can be no doubt that as required by rule 134 of the Rules a memorandum of appal must be accompanied by a certified copy of the judgment or order appealed against but the court can dispense with the filing of the certified copy of the order. As appears from para 2 of rule 156 of the Rules, if the filing of the certified copy of the order is not dispensed with the period between the date the appeal was presented and the day on which the order was made shall not be excluded in computing the period of limitation for the appeal unless the court from received under Section 5 of the Limitation Act otherwise direct. but if the copy is dispensed with, the appeal shall be deemed to have been duly presented ,;n the day on which it was filed. In the instant four cases as already stated earlier in one case (D.B. Civil Special Appeal No. 1 208/z{- defect) a copy of the order had been filed whereas in three other special appeals it had not been filed and the applications under rule 156 of the Rules have been filed. No order his yet been passed in the three appeals and because admittedly all the four appeals are time barred having ,Len preferred on July 1. No order his yet been passed in the three appeals and because admittedly all the four appeals are time barred having ,Len preferred on July 1. 1985, against the order of the learned Single Judge on January 28, 1985, there is no valid ground to dispense with the filing of the certified copies of the order and more so when by then even the application for obtaining of certified copies have not been filed. The effect of this conclusion will be that under the second para of rule 156 of the Rules in three special appeals, the period between the day on which the appeals were the day on which the order has been made shall not be excluded in computing the period of limitation unless in the latter part of this order the application presented in each of the four special appeals under section 5 of the Limitation Act are allowed and the delay is condoned. Rules 134 of the Rules provides that special appeals from the judgment of the learned Single Judge must be presented within 30 days from the date of judgment, and when the same is presented after the period mentioned above, it shall be accompanied with an application supported by an affidavit explaining the cause of delay and it shall be rejected unless the appellant satisfies the court that he had sufficient cause for not preferring the appeal within the aforesaid time. Thus, the requirement of rule 134 of the Rules is that in case the appeal is filed after the prescribed period of limitation it must be accompanied by an application supported by an affidavit explaining the cause of delay. Rule 134 in our opinion incorporates the Principles of section 5 of the Limitation Act. Rule 134, latter part, is almost analogous to rule 3-A of Order 41 CPC. As already stated earlier, the latter part of rule 134 provides, when an appeal is presented after the period prescribed it shall be accompanied by an application supported by an affidavit explaining the cause of delay and it shall be rejected unless the appellant satisfies the court that he had sufficient cause for not preferring the appeal within the aforesaid time. Rule 3A (1) of Order 41 of the Code of Civil Procedure reads as under: 3A. Rule 3A (1) of Order 41 of the Code of Civil Procedure reads as under: 3A. Application for condonation of delay-(1) 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. (2) If the court sees no reason to reject the application without the issue o a notice to the respondent, notice thereof shall he issued to the respondent and the matter shall be finally decided by the court before it proceeds to deal with the appeal under Rule 11 or Rule 13, as the case may be. In both, rule 134 referred to earlier and rule 3-A (I) of Order 41 CPC, the words used are `it shall be accompanied by an application supported by affidavit'. The special appeal is no an appeal under the Code of Civil Procedure and is an appeal under section 18 of the Rajasthan High Court Ordinance. 1949, Order 41 applies to appeal from the original decrees whereas under section 18 of the Rajasthan High Court Ordinance, 1949, the appeal lies to this Court from the judgment, not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of this Court. This Court in State of Rajasthan v. Ashok Kumar D.B. Civil Special Appeal No. 11/1985 (defect) decided on March 26, 1985 , at Jodhpur, no doubt has said that the provisions of rule 3A Order 41 Civil Procedure Code have not been complied with but it was not called upon to address nor appears to have been called upon to address itself on the question as to whether in view of the provisions contained in rule 134 of the Rules in respect of special appeals whether rule 3A of Order 41 Civil Procedure Code will be applicable to the special appeals. It was also not examined as to whether the provisions of Order are applicable to special appeals. It was also not examined as to whether the provisions of Order are applicable to special appeals. We are of opinion that the special appeal lies under Section 18 of the Rajasthan High Court Ordinance, 1949 and not under the provisions of the Code of Civil Procedure and that being so to special appeal Rule 134 of the Rules later part of which is analogous to the provisions of Order 41 Rule 3A(l) and (2) is applicable. 5. Apart from what has been stated hereinabove, the question arises if the special appeal is not accompanied by the application under rule 134, whether any application under section 5 of the Limitation Act can be filed later on or not. This question in the context of rule 3A, Order 1 Civil Procedure Code was examined in two cases, In M. Das Gupta v. Prakash K Shah, AIR 1984 Bombay 390 , a view was taken that despite the apparently pre-emptory language of Rule 3A of Order 1 of the Code of Civil Procedure. the appeal preferred after the expiry of period of limitation cannot be dismissea summarily on the ground that the application for condonation of delay does not accompany the memo of appeal. it was further held that the obvious object of making such a provision is to see that the appeal will not be heard unless delay in the filing of the said appeal is condoned after proper notice to the respondent. In Dijabar and another etc. v. Sulabha and others AIR 1986 Orissa 38 , Order 41 Rule 3A Civil Procedure Code came up for consideration and it was held that it is not mandatory. The learned Judge expressed himself in these words: ,'Thus it is clear that this rule is intended to do away with the practice of postponing consideration of the question of condonation of delay till hearing of the appeal or in other words admit in an appeal of the face of it barred by limitation, subject to the question of condonation of delay being considered at the time of hearing. It is n t intended to affect in any manner the power of the court vested under Section 5. Limitation Act. It is n t intended to affect in any manner the power of the court vested under Section 5. Limitation Act. The proviso to Section 38 read with S 3 z(2) of the said Act (sic) to condone the delay in filing the appeal on sufficient cause being shown for the delay It was further held that if the contention of the learned counsel for the petitioners is accepted then the court will be powerless even in a most deserving case where application has been filed for condonation of delay, though it does not comply in strict sense with the requirements of Order 41 Rule-3A, CPC. Ultimately, it was held by the learned Judge that adopting such a procedure would go against the interest of justice which would never have been intended, while introducing the provisions of Order 41-Rule-3A CPC. fair interpretation of the said provision would be that it requires the appellant who presents an appeal after expiry of the period of limitation specified therefor. to file an application supported by an affidavit setting forth the reasons for delay in preferring the appeal, alongwith the memorandum of appeal. If he fails to file such an application while presenting the appeal or files an application which is not supported by affidavit then it is open to him to file a duly constituted application subsequently explaining not only the delay in presenting the memorandum of appeal but also setting forth the cause for not filing the application for condonation of delay alongwith the memorandum of appeal. In such a case the bonafides of the application will be in question and the court will consider it while taking up the application for condonation of delay. But it cannot Said that in every time-barred appeal where the memorandum of appeal is accompanied by application for condonation of delay or accompanied by an application not supported by an affidavit, court is altogether powerless to consider the matter. Such an interpretation would defeat the very purpose, i. e. advancing the cause of justice for which all procedural laws are framed. 6. It cannot be disputed that even to a special appeal provisions of section 5, Limitation Act are applicable. Such an interpretation would defeat the very purpose, i. e. advancing the cause of justice for which all procedural laws are framed. 6. It cannot be disputed that even to a special appeal provisions of section 5, Limitation Act are applicable. If a view is taken that the part of rule 134 of the Rule which requires that in case the memorandum of appeal is not filed within 30 day which is the prescribed period of limitation it shall be accompanied by an application supported by an affidavit explaining the cause of delay is mandatory it will make the provision of section 5, Limitation Act, redundant even in most deserving cases. Therefore, we are of the opinion that despite the rule being couched in the mandatory form and having used the word 'shall' it is not mandatory and merely because in a time barred -appeal the memorandum of appeal is not accompanied by an application as required under rule 134 of the Rules or accompanied by an application but not supported by an affidavit the appeal cannot be dismissed if the appellant thereafter tiles an application under section 5. Limitation Act. An application under section 5. Limitation Act can also be filed later on, if it does not accompany the memorandum of appeal and if filed, will have to be disposed of on merits. 7. In all the four special appeals, the application under section 5, Limitation Act was either filed on October 16/17, 1985 or in January/February, 1986. A look at the aforesaid application will show that so far as applications of October. 1985 are concerned, all that has been stated is that five writ petitions were decided by common orders with regard to the constitutional validity of sub-rule (2) of rule 8 of RSR. Office applied for certified copy on April 17, 1985 received the same on May 22. 1985 and opinion was sent to law Department from where permission was granted on July 1, 1985 and on the same day appeal was filed. The delay was caused due to mistake of office in applying for certified copies which was not with any intention to cause delay. In the application of January/February. 1985 and opinion was sent to law Department from where permission was granted on July 1, 1985 and on the same day appeal was filed. The delay was caused due to mistake of office in applying for certified copies which was not with any intention to cause delay. In the application of January/February. 1986 it has been stated that the Registry reported in the case of Samarthi that the appeal was time barred by 53 days and in Vijay Singh's case the appeal was time barred by 53 days and the appeal in Hari Singh case was time barred by the same number of days, Appeal in Pratap Singh's case was reported to be within limitation. It may be stated that there is no appeal of Pratap Singh. It is further stated that an application under section 5, Limitation Act was filed on October 14. 1985 in D.B. Special Appeal No. 124 and on October 17, 1985 in appeals Nos. 433/84 and 955/82. After having gone through the reasons contained in the applications, it is a case where there has been a total negligence and carelessness of the various authorities and each day's delay has not been explained it may be stated that even an application for obtaining certified copy was fild after expiry of limitation for filing special appeal and therefore the time taken in certified copy cannot be excluded in computing the period of limitation. The affidavit of the clerk concerned or the law officer concerned has not been filed. No sufficient cause for condoning the delay in any of the cases is made out. Even it has not been shown as to why no applications under section 5, Limitation Act or an application under the later part of rule 134 of the Rules were filed alongwith the memorandum of appeals acid even for sufficient time thereafter inspite of the defect being pointed out by the office that the appeals are time barred. 8. Consequently, no sufficient cause for condoning the delay in any of the cases is made out. All the four special appeals are hereby rejected.Appeal decide. *******