STATE OF GUJARAT v. Saratsinh R. Sisodia — 1989 DIGILAW 159 (GUJ)

J. U. MEHTA, J. ( 1 ) ). The present applicants - State of Gujarat and Inspector General of police who are the Appellants in the letters Patent Appeal have filed the aforesaid application on 19-7-1989 to condone the delay of 120 days caused in filing the aforesaid Letters Patent appeal. The facts are as under : the present opponents filed Special civil Application No. 3502 of 1980 praying to declare that the Rule at annexure c, the previous policy decisions, Circulars and Government resolutions in respect of giving 33 1/3 % reservation to Matriculate/ S. S. C. passed Constables are not superseded and remain effective and that the select List of S. S. C. Constables fit to be promoted as Head Constables, grade II remains operative till the same is exhausted and the petitioners in the Writ Petition are entitled to be promoted in their turn if found fit and for other reliefs. There were other special Civil Applications involving common question filed by different petitioners. All the petitions came up for final hearing before the learned single Judge who allowed all the special Civil Applications by a common judgment dated 17-4-1985. ( 2 ) BEING aggrieved by the said judgment, the present petitioners filed a Letters Patent Appeal on 1 8/09/1986, being Letters Patent appeal No. 187 of 1986. The present petitioners herein also filed a Civil application in the Letters Patent appeal being Civil Application No. 923 of 1986 praying, inter alia, to stay of the execution and implem Cation of the aforesaid judgement and order dated 17-4-1986. On 30-6-1986 a division Bench of this Court admitted the Letters Patent Appeal and issued rule on the said Civil Application and also granted ad interim relief as prayed for. The present opponents filed affidavit-in reply dated 2/09/1986 opposing the aforesaid Civil application. Another Division Bench of this, Court after hearing both the sides on Civil Application for interim relief made the Rule absolute by directing that the promotions granted will be subject to the decision of the aforesaid Letters Patent Appeal, and fixed the Letters Patent Appeal for peremptory final hearing. ( 3 ) AT the time of final hearing of the Letters Patent Appeal, learned advocate for respondents raised a preliminary objection that the Letters patent Appeal is time-barred and cannot be heard on merits. ( 3 ) AT the time of final hearing of the Letters Patent Appeal, learned advocate for respondents raised a preliminary objection that the Letters patent Appeal is time-barred and cannot be heard on merits. It was found that the filing of the Letters patent Appeal was delayed by 120 days and, therefore, this Civil Application is filed for condoning the delay. ( 4 ) XXX xxx xxx ( 5 ) MR. R. K. Mishra, learned advocate for the opponents opposed the said Civil Application. He took the preliminary objection that the provision of R. 3a of O. 41 C. P. C. is inserted by Amendment Act. No. 104 of 1976 and the said Rule is not directory but mandatory and when the condonation application is not filed along with the Letters Patent Appeal, the appeal should be dismissed for failure to comply with the Rule. He also submitted that the provisions of r. 3a of O. 41c. P. C. will also apply to Letters Patent Appeals and noncompliance of the said provisions of R. 3a of O. 41 will result into dismissal of the Letters Patent Appeal. On merits also he submitted that there is gross delay of 120 days and, therefore, looking to the reasons given by the petitioners in the Civil application, the same should be dismissed by refusing to condone the delay. ( 6 ) WE will deal with the first submission of the learned Advocate mr. Mishra. The provisions of O. 41, r. 3a (3) and (2) of the Code of Civil procedure read as follows :"application for condonation of delay: 3a (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 of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under r. 11 or R. 13, as the case may be. (2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under r. 11 or R. 13, as the case may be. " ( 7 ) AT this stage it will be appropriate to refer to the Legislative history of o. 41, R. 3a and to the backdrop of legal position prevailing prior to the insertion of O. 41, R. 3a in the statute-book. ( 8 ) IN Krishnaswami v. Ramaswami, A. I. R. 1917 P. C. 179 at page 180, their Lordships of the judicial Committee of the Privy council, while holding that an ex parte order admitting a time-barred appeal would be open to reconsideration at the respondents instance at the hearing of such appeal, observed that the question 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, A. I. R. 1918 P. C. 136 at page 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. The Law Commission of India, in its twenty-seventh Report, at page 237, invited reference to its Fourteenth report, wherein the above observations of the Privy Council were 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 the appeal and suggesting insertion of proposed r. 3-A in the Code for the purpose. ( 9 ) WHEN Bill No. 27 of 1974 to amend the 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, Notes of Clauses were also presented. Sub-cl. (iii) of C1. ( 9 ) WHEN Bill No. 27 of 1974 to amend the 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, Notes of Clauses were also presented. Sub-cl. (iii) of C1. 90 therein read,"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 the hearing. This practice has been disapproved 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 R. 3a is being inserted to give effect to the said recommendation. "that new R. 3-A comprised of sub-Rs. (1) and (2 ). O. 41, R. 3a with sub-Rs. (1) and (2) come to be inserted into the Code, by Cl. (ii) of s. 87 of the C. P. C. (Amendment) Act, 1976. ( 10 ) WE will now proceed to deal with the moot question whether the provision of O. 41, R. 3a is mandatory or directory. It becomes at once obvious that this rule is in the realm of procedure and as far as possible, the procedural law cannot and should not be interpreted in such a way so as to take away vested rights of the parties. For this, it will be apt to rely on the observations of the Supreme court in the case of Sangram Singh v. Election Tribunal, Kotah, reported in A. I. R. 1955 S. C. 425. They are as under:"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 reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) least 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 reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) least the very means designed for the furtherance of justice be used to frustrate it. " ( 11 ) AGAIN in Jai Jai Ram manoharlal v. National Building material Supply, Gurgaon, reported in A. I. R. 1969 S. C. 1267, the Supreme court has observed as under:"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. " ( 12 ) IN the case of Kalipada Das v. Bimal Krishna, reported in A. I. R. 1983 S. C. 876, the Supreme Court has observed as under:"a procedural step which facilitates hearing of the appeal, cannot impede access to justice. " ( 13 ) THE sum and substance of the aforesaid principles is that 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. Reading the phraseology of O. 41, R. 3a one may be tempted to say that the provision is mandatory as the phraseology used is "it shall be accompanied by an application supported by affidavit", but while interpreting the aforesaid provision one should not forget the intention of the Legislature in enacting the provision. The Legislature wanted to see that the practice of deferring the question of limitation and deciding the same 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 the appeal is finally adjudicated has been made. R. 3-A (1) being procedural is intended to aid in the administration of justice. Therefore, in our view the provision of R. 3a cannot - be said to be mandatory but it is only a directory one. R. 3-A (1) being procedural is intended to aid in the administration of justice. Therefore, in our view the provision of R. 3a cannot - be said to be mandatory but it is only a directory one. ( 14 ) IT may be pointed out that a similar question arose before a learned single Judge of this High Court in the case of Naran Anappa Shethi v. Jayantilal Chunilal Shah, 27 (1) g. L. R. 206 wherein it is held that O. 41, R. 3-A is directory and not mandatory. In that case a civil suit was filed in the Court of the Civil judge, Senior Division, Narol for eviction of the suit premises situated in Odhav locality of the City of ahmedabad. The suit was decreed ex parte by the trial Court on 23/06/1980 on the ground of arrears of rent. The tenant filed an appeal in the Court of the learned District Judge, ahmedabad (Rural) at Narol. The respondent appeared in the appeal and, inter alia, contended 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 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 in the 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 came up for hearing before the High court on 16/03/1984 and the 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. After the matter was remanded to the lower Appellate Court, a question arose about condonation of delay in filing the appeal. 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. After the matter was remanded to the lower Appellate Court, a question arose about condonation of delay in filing the appeal. 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 O. 41, R. 3a (1) of the Code of Civil procedure, he held that the application for condonation of delay was not maintainable on the ground that there was no application filed for condonation of delay together with the memo of appeal. According to him, 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. The learned Assistant Judge held that the application having not been filed in conformity with the provisions of O. 41, R. 3-A (1), the same was not maintainable and hence liable to be rejected. The said judgment and order were challenged in a revision application which came to be decided by learned brother Ravani, J. As stated above, while disposing of the Revision application, the view was taken by mr. Justice Ravani that R. 3a (1) of o. 41 is directory and not mandatory and the appeal need not be dismissed on failure to comply with the said Rule. We are in agreement with the view taken by Mr. Justice Ravani. ( 15 ) IT may be pointed out that the rules of the High Court of Judicature at Bombay, Appellate Side Rules, 1960, in Part II, Chapter VI provide for appeals under Cl. 15 of the Letters patent. R. I (iii) thereof provides as under :"1 (III) The provisions of Ss. 4 and 5 of the Limitation Act, 1963, shall apply to applications under Sub-R. (i) and appeals under Sub-R. (ii) above. "r. 2 thereof provides about the accompanying papers along with the letters Patent Appeal. It reads as under:"a Letters Patent Appeal shall be accompanied by the following papers: (i) A typed copy of the memorandum of the Letters Patent Appeal. (ii) Two typed copies of the memorandum of the original appeal. (iii) If the Letters Patent Appeal is from the decision of an application, two typed copies of the application. (iv) If the Letters Patent Appeal is from an appellate decision, two typed copies of the lower Courts judgments. (ii) Two typed copies of the memorandum of the original appeal. (iii) If the Letters Patent Appeal is from the decision of an application, two typed copies of the application. (iv) If the Letters Patent Appeal is from an appellate decision, two typed copies of the lower Courts judgments. (v) Two typed copies of the judgment of this Court where judgment has been delivered. "r. 5 thereof provides as under:"except as otherwise provided in this Chapter, the provisions of O. XLI of the Code of Civil Procedure and the rules herein contained applicable to regular appeal shall apply to Letters patent Appeals. "it will, therefore, be seen that along with the Letters Patent Appeal the papers mentioned in R. 2 are only required to be accompanied which are enumerated in (i) to (v) of R, 2. It will also be seen that R. 5 provides that except as otherwise provided in this Chapter, the provisions of O. XLI of the Code of Civil Procedure and the rules herein contained applicable to regular appeal shall apply to Letters patent Appeals. Therefore, when it is provided in R. 2 as to what are the papers to be accompanied along with the Letters Patent Appeal, the provisions of O. 41, R. 3a will not apply, as accompaniments of Letters patent Appeal are provided by R. 2 which can be said to be otherwise provided and hence O. 41, R. 3a cannot apply to Letters Patent appeals. Thus in Letters Patent appeals there is no requirement that the Appeal Memo must be accompanied with sworn condonation application. However, according to the provisions of S. 5 of the Limitation act, when application for condonation of delay is made, the appellant or applicant should satisfy the Court that he had sufficient cause for not preferring the appeal within the specified period. Such an application can be made even at a later stage. We, therefore, overrule the preliminary objection that this application is not maintainable. .