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2000 DIGILAW 584 (MP)

Daulat @ Babu Sonkar v. Kunti Sonkar

2000-06-21

S.C.PANDEY

body2000
ORDER S.C. Pandey, J. 1. This is an application for review of the order dated 14-2-2000 passed by this Court, whereby Second Appeal No. 126/99 was dismissed. 2. The lower appellate Court had dismissed the first appeal on the ground that it was barred by time. In the second appeal, the judgment and decree of the trial Court was maintained, for the reason given in the impugned order dated 14-2-2000. 3. Learned Counsel for the applicant argued that the impugned order dated 14-2-2000 requires reconsideration on the ground that initially learned Additional District Judge had admitted the appeal as within time and thereafter at the time of final hearing dismissed it on the ground that the appeal was obviously barred by limitation without giving the applicant any opportunity of getting the delay condoned. Learned counsel for the applicant relied on the decision of Suresh Kumar and Ors. vs. Firm Kurban Hussain Taiyab Ali and others, reported in 1996 MPLJ 330 : AIR 1996 MP 151 for his contention that the applicant should have been given an opportunity for getting the delay condoned by filing an application under Section 5 of the Limitation Act. In the opinion of this Court, the contention of learned counsel for the applicant is misconceived as Order 41, Rule 3-A of the Code of Civil Procedure requires that when an appeal is presented after expiry of limitation, it should be accompanied by an application supported by an affidavit, setting forth the facts on which the applicant relies to satisfy the Court that he has sufficient cause for not preferring the appeal within the period prescribed. Sub-rule (2) of Order 41, Rule 3-A of the Code of Civil Procedure gives discretion to the Court to reject the application as well as the appeal without issuing notice to the non-applicant/respondent if it appears to the Court that there is no sufficient course. It is apparent from the wordings of Sub-rule (2) of Order 41, Rule 3-A of the Code of Civil Procedure to the effect that if the Court sees no reason to reject the application without issue of a notice to the respondent, notice thereof shall be issued to the respondent. It is apparent from the wordings of Sub-rule (2) of Order 41, Rule 3-A of the Code of Civil Procedure to the effect that if the Court sees no reason to reject the application without issue of a notice to the respondent, notice thereof shall be issued to the respondent. It is further provided in the Sub-rule (2) that the question of sufficient cause shall be considered prior to decision under Order 41, Rule 11 or Rule 13 of the Code of Civil Procedure i.e. hearing of the case on the question of admission. Sub-Rule (3) of Order 41, Rule 3-A of the Code of Civil Procedure further provides that the Court shall not make an order for stay of the execution of the decree unless it decides to hear the appeal after making a decision under Rule 11 of Order 41 of the Code of Civil Procedure to condone the delay. In such a situation, it is imperative that before the appeal is admitted, the Court should decide the question of condonation of delay prior to admission of the appeal. Under these circumstances, it is for the applicant to file an application prior to admission of the appeal. Even if we held that the word accompanied by an application supported by an affidavit under Order 41, Rule 11 or Rule 13 of the Code of Civil Procedure are directory in the sense that an application for condonation of delay can be filed subsequently after filing of appeal it could not be held that the applicant shall not file the application at all and get the appeal admitted without filing any application for condonation of delay. In such cases, at the time of final hearing, the question of giving further opportunity to the applicant would not arise, for the reason, there will be no opportunity to the non-applicant to dispute the facts alleged after number of years when the appeal is heard finally. It is, therefore, the duty of the applicant to file an application alongwith the memo of appeal or in a given case if within some reasonable time but this liberty cannot be extended after the appeal is admitted. The ruling cited by learned counsel for the applicant in the case of Suresh Kumar and others, 1996 MPLJ 330 : AIR 1996 MP 151 (supra) does not relate specifically to an appeal. The ruling cited by learned counsel for the applicant in the case of Suresh Kumar and others, 1996 MPLJ 330 : AIR 1996 MP 151 (supra) does not relate specifically to an appeal. In that case, the question of condonation of delay was not considered in the light of any rule like Order 41, Rule 3-A of the Code of Civil Procedure. In that case, the question of condonation of delay in filing the application under Order 9, Rule 9 of the Code of Civil Procedure arose in altogether different circumstance. The necessary facts for condoning the delay were incorporated in the application under Order 9, Rule 9 of the Code of Civil Procedure. No application under Section 5 of the Limitation Act was filed. 4. Since, there was no formal application under Section 5 of the Limitation Act, the trial Court dismissed the application under Order 9, Rule 9 of the Code of Civil Procedure. In an appeal against that order, this Court said that it is not necessary to file a formal application under Section 5 of the Limitation Act under the facts and circumstance of the case. If sufficient cause for condonation of delay was made out, then as oral prayer can also be accepted. But this is not case here. 5. For all these reasons, there is no merit in this review application. The M.C.C. is accordingly dismissed. Application dismissed