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2000 DIGILAW 404 (KAR)

P. Amarnatha Shetty v. Vishweshwara Bhat

2000-06-13

H.N.TILHARI

body2000
ORDER Hari Nath Tilhari, J.—This revision petition is directed against the order dated 11th September, 1998 passed by Sri R.S. Kempanna, Principal District Judge, Mangalore, in Un-numbered M.A. No. 1994, whereby the application filed by the Appellant (revision Petitioner herein) under Section 5 of the Limitation Act was dismissed and consequently the Miscellaneous Appeal was also dismissed. 2. In brief the trial Court had dismissed the application for the appointment of an Arbitrator in Case No. AC 2 of 1991 vide order dated 23.8.1994. The said order was passed by the Civil Judge, Puttur. 3. Feeling aggrieved from the rejection of the application under Sections 8 and 20 of the Arbitration Act, the applicant has been advised to file the first appeal i.e., Miscellaneous First Appeal No. 427 of 1994 in this Court and that appeal was filed within 30 days. But later on it happened that the Court found that the appeal Miscellaneous First Appeal No. 427 of 1994 filed in this Court did not lie in this Court i.e. High Court and it should have been filed before the District Court at Mangalore. 4. According to the learned Counsel for the Respondents that the order in Miscellaneous First Appeal No. 427 of 1994 was passed on 12.4.1994, but according to the learned Counsel appearing for the revision Petitioner that papers were returned on 1.7.1994 as it took time in processing. The Appellant-revision Petitioner thereafter filed the appeal in the Court of the District Judge, Mangalore, on 1.8.1994. The appeal was no doubt barred by limitation. Thereafter, it appears that on 21.1.1995 the application for condonation of delay in filing the appeal in the Court of the District Judge, was made before the District Judge alongwith the affidavit. 5. The Respondents filed the objections to the said application denying the allegations made in the affidavit annexed to the application for condonation of delay. Thereafter, the lower appellate Court rejected that application and dismissed the appeal as barred by time. 6. In the affidavit appended to the application for condonation of delay it has been stated by the deponent (revision Petitioner herein) that he was advised that Miscellaneous First Appeal against the order dated 23.2.1994 passed in AC No. 2 of 1991 was to lie in the Hon'ble High Court and accordingly the appeal was filed before this Court and it was received by the High Court. It was stated that the said appeal was filed within the period prescribed namely 30 days. Later on the High Court ordered the return of the appeal and actually the memo appeal was returned on 1.7.1994 to the Counsel for the deponent who was appearing in the High Court at Bangalore. It is stated that the Counsel has sent the papers by post and those papers were served and were received by the Appellant, in appeal filed before the lower appellate Court, i.e., revision Petitioner herein on 15.7.1994. Thereafter, he contacted two or three advocates at Mangalore to get it filed in District Judge's Court and they retained the papers for 2 or 3 days and then returned those papers opining that revision would lie and not the appeal. Then, he contacted some other Counsel i.e., the Counsel through whom the revision Petitioner could file the appeal on 1.8.1984, who accepted the appeal and presented the appeal papers before the District Court, Dakshina Kannada, Mangalore, on 1.8.1994. The delay has been tried to be explained by alleging that as the revision Petitioner (Appellant in the lower appellate Court) was an illiterate and is not conversant with law or the niceties of law, he had to seek advise of the Counsels and he has to act on the advise of the Counsel. So, he filed the appeal in Miscellaneous First Appeal No. 427 of 1994 firstly before this Court and when it was returned and the papers were received then he had to go to Mangalore from his village which is at long distance from his home place and contacted three Counsels and requested them to present the appeal and some i.e., two of them returned the papers after keeping them two or three days with himself. Thereafter, when he got the papers he contacted the Counsel who agreed to file the appeal and who filed the appeal within two days i.e. on 1.8.1994. 7. The first Respondent filed his counter by way of affidavit. He has sworn in his affidavit and alleged that the allegation made in the application for condonation of delay and the affidavit thereto are not true and correct. 8. The record shows that on 12.2.1994 the Court directed papers to be returned to the Petitioner. The Appellant-Petitioner has stated that the appeal papers were returned on 1.7.1994 and he received them by post on 15.7.1994. 8. The record shows that on 12.2.1994 the Court directed papers to be returned to the Petitioner. The Appellant-Petitioner has stated that the appeal papers were returned on 1.7.1994 and he received them by post on 15.7.1994. The Court below also refers to the statement of the Appellant-Petitioner recorded by it. In that, the Appellant names the Counsels who returned the papers and who told that the appeal can't be filed. The trial Court mentions that the senior lawyer Sri Madhava Rao after 8 days returned the papers. So the Petitioner-Appellant had gone from lawyer to lawyer. The Court observed that the caveat was served on the Appellant on 18.3.1994, but the Appellant-revision Petitioner was not diligent in prosecuting the case particularly after receiving the caveat. The Court below observed that even if there was mistaken advise of the Counsels, the mistaken advise of the Counsel can't be a cause for condoning the delay, unless it is shown that the lawyer acted with due diligence. The Court below further observed that the Appellant has not filed the affidavit of his lawyer, who appeared for him in the High Court to show that the papers were returned to him by post. Thus, taking the view the Court below opined that in this case the impugned order had been passed on 23.2.1994 the appeal before the District Judge was filed on 1.8.1994 and the application for condonation was filed on 21.1.1995. So, due to lapse of time right had accrued to the Respondents and therefore no question of condoning the delay. 9. The learned Counsel for the revision Petitioner contended that it is well settled principles of law in judging the question if sufficient cause has been shown or not justice oriented approach should be made. No doubt if it is shown and established that there is any mala fides on the part of the applicant the learned Counsel urged, then he may not be entitled to the condonation of delay. The learned Counsel contended that here the Petitioner had acted bonafide on the advise of the Counsel when he filed the appeal in the High Court. That initially the High Court accepted the appeal and later the Appellant was directed to file the same before the proper forum. The litigant being a villager in the case had to rely on the advise given by experts in law i.e., Advocates. That initially the High Court accepted the appeal and later the Appellant was directed to file the same before the proper forum. The litigant being a villager in the case had to rely on the advise given by experts in law i.e., Advocates. India lives in villages, people ordinarily are illiterates, not well conversent with law, have to ordinarily to rely on advise given by their Counsel. That the memo of appeal was returned by the Registry after vacation. The learned Counsel for the revision Petitioner, contended, that the vacation started in the High Court ordinarily sometimes near about 15th of April and the Courts remain closed for about 5 weeks. The learned Counsel contended that after reopening the papers were returned, no doubt, sometimes in the early part of July. The learned Counsel contended that when the appeal had to be filed in the District Court, the Appellant had to contact the Counsels at Mangalore. This facts to be taken judicial notice of that here in the State of Karnataka usually the Courts are in Taluks and the Taluks are located at places with long distances from the District headquarters where the District Judges sits. The learned Counsel submitted that the distance from Puttur to Mangalore District headquarters is 50 Kms. or more and the Appellant was residing in the village. The learned Counsel contended that there was no benefit to be gained by filing the appeal delayed. Why the Appellant would not have filed the appeal within the time and what benefit he would have got by filing the appeal after having delayed its filing are the matters which Court below ought to have considered, and when he would not have gained any benefit no malafides are to be fastened on him and where delay was not on account of any malafide intent the Court below ought to have condoned it in the circumstances as explained in the affidavit to condonation of delay application. The learned Counsel contended that without taking note of the basic principle of constitutional law that no party should be deprived of the remedy and approach to the Court of justice for relief simply on technicalities and economic or other disabilities. The learned Counsel contended that without taking note of the basic principle of constitutional law that no party should be deprived of the remedy and approach to the Court of justice for relief simply on technicalities and economic or other disabilities. The learned Counsel contended that largest part of population resides in the villages and is illiterate suffering from deficiencies and disabilities economic and other emanating from illiteracy and these facts should have been kept in mind and considered by the learned District Judge while examining the question of sufficient cause and it should not have adopted sheer technical approach. The learned Counsel contended as such that the learned Court below when it rejected the application without applying its mind to the basic principles of law in this regard, it acted illegally and with material irregularities in dismissing the application as the directive principles enshrined in Article 39-A of the Constitution of India are not and cannot be taken superficial and it directs the instrumentalities of the State including Courts to have justice oriented approach. The Counsel urged that the Court below acted illegally and with material irregularity in recording the finding that sufficient cause has not been shown after having ignored the above basic principles of law and mandatory direction of Article 39-A as well. The learned Counsel submitted that as such this is a fit case for interference by this Court under Section 115 of the Code of Civil Procedure, so that doors of justice may not stand closed and may not be closed to poor illiterates and people. The learned Counsel submits that the opposite party is not going to suffer, if the appeal is decided on merits. 10. The above contentions of the learned Counsel for the revision Petitioner have hotly been contested by the learned Counsel for the Respondents. 11. It has been contended by the learned Counsel for the Respondents that the jurisdiction of this Court under Section 115 of the Code of Civil Procedure, is limited and circumscribed. This Court is not entitled to interfere with the finding of fact recorded by the Court below to the effect that the applicant has failed to make out a case for sufficient cause, or that sufficient explanation has not been shown for condonation of delay. This Court is not entitled to interfere with the finding of fact recorded by the Court below to the effect that the applicant has failed to make out a case for sufficient cause, or that sufficient explanation has not been shown for condonation of delay. The learned Counsel, in this connection, has invited my attention to the decision of their Lordships of the Supreme Court in the case of Manindra Land and Building Corporation Ltd. Vs. Bhutnath Banerjee and Others, AIR 1964 SC 1336 . The learned Counsel has invited my attention to paragraph 10 and later part of paragraph 12 thereof and contended that the Court below had jurisdiction to decide whether the applicant had made out a case for sufficient cause or not for condoning delay in the filing of appeal and it had arrived at a finding, and that once a subordinate Court reached the conclusion that the delay has not been sufficiently explained, this Court should be interfere with under Section 115 of the Code of Civil Procedure, as it is a pure finding of fact based on appreciation of evidence. The learned Counsel further contended that according to the requirements of Order 41, Rule 3A Civil Procedure Code the application for condonation of delay should have been filed alongwith the memorandum of appeal. In the present case, the application for condonation of delay not having been filed alongwith the memorandum of appeal, the appeal had to be dismissed and the application had to be dismissed. According to the learned Counsel for the Respondent, application for condonation of delay was made almost 5 months after filing of the appeal i.e., on 21.1.1994 and as there was non-compliance with the requirements of Order 41, Rule 3-A of the Code of Civil Procedure the application had to be rejected and therefore was rightly rejected. 12. In the rejoinder, the learned Counsel for the revision Petitioner contended that it is not provided by Order 41, Rule 3-A Civil Procedure Code that if the application for condonation of delay is not filed alongwith the memorandum of appeal the party has to be penalised and the appeal should be dismissed without giving opportunity to the Appellant/applicant to file the same. The learned Counsel made reference to the Division Bench decision of this Court in State of Karnataka Vs. Nagappa, AIR 1986 Kant 199. The learned Counsel made reference to the Division Bench decision of this Court in State of Karnataka Vs. Nagappa, AIR 1986 Kant 199. The learned Counsel further contended that the Court below was not justified in entering into the question of merits of the appeal at this stage. The learned Counsel contended it has acted illegally in observing that the petition under Sections 8 and 20 of the Arbitration Act, was not maintainable as the partnership firm was an un-registered one and further observing that there is no merits in the appeal. The learned Counsel contended that the lower appellate Court acted illegally by taking up the question of merits of the appeal into consideration without condoning the delay and the observations made on the merits of appeal are illegal. Therefore, the order dismissing the application for condonation of delay in filing the appeal, as well as dismissing the appeal is illegal, null and void. 13. I have applied my mind to the contentions advanced by the learned Counsels appearing for the parties. That Section 5 of the Limitation Act confers power on the Courts to condone the delay in the filing of the appeal or application, and to entertain it if sufficient cause for delay has been shown to it. In other words, if cause for delay has been explained to its satisfaction the Court can admit and entertain such appeal or application. 14. Their Lordships of the Supreme Court in the case of Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, AIR 1987 SC 1353 dealing with Section 5 of Limitation Act and approach of Court to sufficient cause, laid it down as under: The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on "merits". The expression "sufficient cause" employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which sub-serves the ends of justice that being the life purpose for the existence of the institution of Courts. 15. Their Lordships further observed and laid it down as under: The Courts therefore have to informed with the spirit and philosophy of the provision in the course of the interpretation of the expression" sufficient cause. 16. 15. Their Lordships further observed and laid it down as under: The Courts therefore have to informed with the spirit and philosophy of the provision in the course of the interpretation of the expression" sufficient cause. 16. It will be appropriate to refer and to take in view the basic structure of Constitution and democracy i.e., concepts of Rule of Law and Justice and the mandate of the Constitution under Article 39-A of the Constitution of India which ordains the State and its institutions including the Court, that the State and its instrumentalities and institution including Courts will assure and ensure that no person of citizen of India is deprived and denied of remedies and opportunities for securing justice by reason of economic or other disabilities. 17. India lives in villages. A great majority of Indians live in villages, illiteracy yet prevails and people ordinarily cannot be expected to know the law and its intricacies. In the context of our nation where people suffer from illiteracy and disabilities resulting therefrom the doctrine of ignorance of law is no excuse cannot be applied in the context of Indian context and of the one of the goals of the Constitution i.e., justice and the mandate of Article 39-A of the Constitution. 18. It appears appropriate to refer to the decision of the Supreme Court in the case of N. Balakrishnan Vs. M. Krishnamurthy, (1998) 6 AD SC 465. Their Lordships of the Supreme Court observed with reference to exercise of power/discretionary power under Section 5 of Limitation Act and its exercise as under: 9. It is axiomatic that condonation of delay is a mater of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be un-condonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. Once the Court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refuses to condone the delay. In such cases, the superior Court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untramelled by the conclusion of the lower Court. 10. The reason for such a different stance is thus; the primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. 11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a lifespan for such legal remedy for the redress of legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of Limitation is thus founded on public policy. It is enshrined in the maxim interest republicate upsit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 12. A Court knows that refusal to condone delay would result in foreclosing a suit or from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 12. A Court knows that refusal to condone delay would result in foreclosing a suit or from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari and Others, AIR 1969 SC 575 and The State of West Bengal Vs. The Administrator, Howrah Municipality and Others, AIR 1972 SC 749 . 19. Their Lordships further observed in paragraph 13 of the said report as under: 13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of malafides or it is not put-forth as part of a dilatory strategy the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the Court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite a large litigation expenses. It would be a salutary guideline that when Courts condone the delay due to laches on the part of the applicant the Court shall compensate the opposite party for his loss. 20. The application was filed on 21.1.1995 relates back to the date of filing of the appeal. No reason has been shown as to why the Appellant would have filed the appeal barred by limitation and why the allegations should be taken to be incorrect. The principle is that when allegations are made in the affidavit they have to be controverted by affidavit and if the allegations made in the affidavit are not controverted by the other side then uncontroverted averments made on affidavit have to be taken to be correct on the face value. The principle is that when allegations are made in the affidavit they have to be controverted by affidavit and if the allegations made in the affidavit are not controverted by the other side then uncontroverted averments made on affidavit have to be taken to be correct on the face value. In the present case, the allegations made in the affidavit had not been controverted, nor any person appeared in the witness box to deny the correctness of the allegations as such the averments made on the affidavit have to be taken as correct. The Court below did not apply its mind to the basic principle of law in considering the question whether sufficient explanation for delay has been given or not. Therefore, it has to be taken on the prima facie value of the affidavit that the allegations made therein to the effect that appeal papers were returned on 1.7.1994 were undisputed and the papers were sent by registered post by the High Court Advocate of the Petitioner and were received by him on 15.7.1994. The Petitioner has stated on oath that he had contacted good many Counsels at Mangalore to get the appeal filed and there is no dispute that Puttur is at a distance of about 50 kms from the District Headquarters i.e., Mangalore and the applicant has been a resident of near by village. These have been relevant and the material fact. Further it is a material fact that after having received the appeal papers he had to make financial arrangements and to contact the Counsel or Lawyer to get the appeal filed. Two or three Counsels had refused to file appeal papers though the Petitioner as per the undisputed allegation contacted them. So, the applicant could not be blamed. The Court below appears to have not applied its mind to this aspect of the matter and it did act illegally by assuming that the Appellant was negligent. As such, the finding recorded by the Court below that no sufficient cause has been shown arrived at illegally by ignoring the basic principle enshrined in Article 39-A of the Constitution of India as well as laid down by Supreme Court and ignoring the principles that allegations made on the affidavit, if not denied by the other side by way of filing the counter affidavit such allegations have to be taken to be correct. In our country illiteracy prevails. In our country illiteracy prevails. In judicial matters, the litigants have to depend upon the advise of the Counsels. In the case of M.N. Manjunatha Rao vs. Rukminiyamma, 1986 (1) KLJ 133 the Division Bench of this Court has held that though the mistake of the Counsel is regrettable and one which any Counsel with reasonable diligence could have avoided, there is however no material to say that there was any oblique motive in tendering that advise or that the Counsel acted malafide or in a reckless manner or with gross negligence though some diligence there is. The Appellant is entitled to be saved from the consequences of the mistake of his Counsel. In the present case also, in my opinion, nothing such has been shown as to the Counsel who filed the miscellaneous first appeal in the High Court that he has acted with malafides or oblique motive. Nothing has been shown that the Appellant's acted with any malafides and acted with oblique motive in delayed filing of the appeal after expiry of time to file it. In fact originally appeal on wrong or mistaken advise was filed in wrong forum and pursued and it was filed in time before the High Court and its being ordered to be returned and to be filed in Civil Court (District Court) its filing was delayed. In my view the revision Petitioner's application filed in lower appellate Court for condonation of delay deserves to be allowed and ought to have been allowed in view of facts and circumstances stated in the affidavit and is hereby condoned. That the approach of the trial Court to the question of condonation of delay ignoring the basic principle in this regard as indicated above in my opinion amounts in Court acting illegally and with material irregularity in dealing, disposing of and rejecting the application for condonation of delay and it resulted in denying the Appellant-revision Petitioner's right to argue the matter on merits at the appellate Court. The finding recorded by the first appellate Court that appeal is devoid of any merits is illegal and without jurisdiction as firstly the appellate Court could not decide the appeal itself without first condoning the delay as appeal was prima facie barred by limitation and secondly the Appellant-applicant did not and could not have occasion to argue that on merits, as such, the finding recorded on merits of appeal, being without jurisdiction, is non est. 20. That the contention of the learned Counsel for Respondent to the effect that appeal and application for condonation of delay was rightly rejected and appeal was rightly dismissed as application for condonation of delay had not been filed with the appeal when it was filed as there was non-compliance with Order 41, Rule 3-A of the Code of Civil Procedure. He submitted application under Section 5 of Limitation Act was filed long afterwards, so it could not be considered and so was rightly dismissed. I am of the view that this contention has got no substance in view of principles of law laid down by the Division Bench of this Court on Order 41, Rule 3-A of the Code of Civil Procedure in the case of State of Karnataka Vs. Nagappa, AIR 1986 Kant 199. 21. In the context of Order 41, Rule 3A(1) and (2) Code of Civil Procedure, the Division Bench of this Court had interpreted that rule and has observed in the case of State of Karnataka Vs. Nagappa, AIR 1986 Kant 199 in paragraph 12 of the judgment and has held as under: 12. An application for condonation of delay shall accompany a time barred appeal, when it is presented, is the requirement of Sub-rule (1) of Rule 3A, becomes apparent as seen therefrom. The affirmative language employed in the sub-rule, mandates the Appellant presenting a time barred appeal to file along with it, an application for condonation of delay as well. This shows the mandatory nature of the sub-rule. The sub-rule therefore, may be characterised as a mandatory one. The affirmative language employed in the sub-rule, mandates the Appellant presenting a time barred appeal to file along with it, an application for condonation of delay as well. This shows the mandatory nature of the sub-rule. The sub-rule therefore, may be characterised as a mandatory one. When Sub-rule (2), which follows Sub-rule (1) enjoins the Court to finally decide the application for condonation of delay filed under Sub-rule (1) before it proceeds to deal with the appeal under either Rule 11 or Rule 13 of Order 41 of the Code, it clearly indicates that an application for condonation of delay should have accompanied a time barred appeal when presented, so that it may be finally decided before the Court can proceed to deal with the appeal under either Rule 11 or Rule 13 of Order 41 of the Code. A combined reading of sub-rules (1) and (2) of Rule 3A makes it manifest that the purpose of requiring the filing of an application for condonation of delay under Sub-rule (1) along with a time barred appeal, is mandatory, in the sense that the Appellant cannot, without such application being decided, insist upon the Court to hear his time barred appeal. That was the very purpose sought to be achieved by insertion of sub-rules (1) and (2) of Rule 3A becomes clear from the legislative history of new Rule 3A to which, we have already adverted. The scope of Sub-rule (1) being what we have, that, 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 Rule 11 or Rule 13 of Order 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 Rule 3 of the same Order 41 of the Code, which empowers the Court to reject a memorandum of appeal not drawn up in the prescribed manner. When the explanation to Section 5 of the Limitation Act enables the Appellant, who was mislead by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period, to seek condonation of delay in presenting the appeal by pleading such order practice or judgment sufficient cause therefore outright dismissal of a time barred appeal presented without being accompanied by an application for condonation of delay could not have been envisaged at all by the sub-rule, in that the Appellant would be realising the occurrence of such delay in presenting the appeal wholly when it is pointed out to him either by the office of the Court or by his opponent. Even the Legislative history of Sub-rule (1), to which we have adverted, does not indicate that Sub-rule (1) and (2) of Rule 3A inserted in the Code, were intended to award the penalty of dismissal of an appeal in the event of non-compliance with the requirement of Sub-rule (1) by an Appellant presenting a time barred appeal. Thus, when the sub-rule neither expressly nor contextually indicates that its non-compliance by an Appellant presenting a time barred appeal, should, as a penalty, entail dismissal of his appeal, we find it rather difficult to regard its operation, as bringing about impliedly such drastic result. It is not also open to us to construe a procedural rule of the kind intended to aid in the administration of justice as one implying the award on a severe penalty for its non-compliance, if we have regard to what has been said by the Supreme Court as to the manner of approach required of a Court in properly construing a procedural rule. 22. Their Lordships further observed in paragraph 18 as hereinafter: 18. 22. Their Lordships further observed in paragraph 18 as hereinafter: 18. Hence, in our view, mandatory Sub-rule (1) of Rule 3A, the operation of which is being dealt with, has to be regarded by a Court before which a time barred appeal is presented, as requiring that Court to make the Appellant presenting such appeal, comply with its requirement by affording him a reasonable opportunity in that regard and to have recourse to dismissal of such appeal as not properly, presented, only when the Appellant disregards the opportunity so afforded. It is also our view that a time barred appeal which was originally presented defectively, but which defect is remedied (cured) within the time allowed by the Court, should be regarded as one properly presented as on the date of its original presentation, in that, the remedying of such a procedural defect necessarily relates back to the date of original presentation of the appeal. 23. Thus, considered the revision petition deserves to be allowed and is hereby allowed. 24. The judgment and order dated 11th September, 1998 passed by the Principal District Judge, Mangalore, in Miscellaneous Appeal No.... of 1994 is set aside. 25. The delay in filing the appeal is hereby condoned and the parties are directed to appear before the Principal District Judge, Mangalore.