ORDER 1. Heard on admission. This civil revision under section 115 of the Code of Civil Procedure is filed against the order dated 17.8.2006 passed by XIth Additional District Judge (Fast Track Court), Gwalior, in Civil Appeal No. 39-N2006 whereby delay in filing the appeal has been condoned and an application under section 5 of Limitation Act has been accepted. 2. Being aggrieved by eviction ordered by the trial Court non-applicant filed civil appeal before the appellate Court on 20th April, 2006 challenging the judgment and decree dated 28.8.2006 passed in Civil Case No. 18-A/ 2003 by this judgment and decree, eviction of the application under section 12 (1) (a) of M.P. Accommodation Control Act was ordered. Shri V.K. Bharadwaj counsel for the appellant submitted that once an appeal is not accompanied with an application for condonation of delay then the appeal itself is not maintainable and in view of provision of Order 41 Rule 3 CPC the appeal was liable to be dimissed. Inter alia contending that when the appeal was presented on 20th April, 2006 no application under section 3 or 5 of the Limitation Act was filed, an application under section 3 was filed on 20th May, 2006 and the application under section 5 was filed on 3rd July, 2006, it was argued by Shri Bharadwaj, that the learned Court below has committed grave error in entertaining the application and subsequently allowing them. Placing reliance on a judgment rendered by a Bench of this Court in the case of State of M.P. v. Pradeep Kumar [1999 (I) MPWN SN (41)] and judgment of Kerala High Court in the case of Padmmwati v. Kalu [AIR 1980 Kerala 173] and in the case of State of M.P. and another v. Pradeep Kumar and another [ 2000 (2) JLJ 340 = (2000) 7 SCC 372 ] Shri Bharadwaj argued that the order passed by the Court below allowing the application for condonation of delay is unsustainable and the same is liable to be rejected. On the contrary it was submitted by the counsel for appellant that delay in filing of the appeal having been not reasonably explained, condoning the delay in filing of appeal is also unsustainable on the basis of explanation submitted for delay. 3. Having heard learned counsel for petitioner I find no substance in this revision application. On the contrary it was submitted by the counsel for appellant that delay in filing of the appeal having been not reasonably explained, condoning the delay in filing of appeal is also unsustainable on the basis of explanation submitted for delay. 3. Having heard learned counsel for petitioner I find no substance in this revision application. The contention of Shri Bharadwaj, with regard to the principle laid down under Order 41 Rule 3 (a) for accepting the time barred appeal is wholly misconceived. In the case of State of M.P. v. Pradeep Kumar (supra) it has been held that a time barred appeal not accompanied with, by an application for condonation of delay is not competent and similar view is taken by the Kerala High Court in the case of Padmawati v. Kalu (supra). On a perusal of the judgment rendered by Supreme Court in the case of State of M.P. v. Pradeep Kumar (supra) it is seen that the preposition laid down in these judgments are no more good law. In para 17 of the judgment rendered by Supreme Court it is indicated that the law laid down in the case of State of M.P. v. Pradeep Kumar (supra) have been over ruled after considering the judgment of Kerala High Court, the judgment of Division Bench of Karnataka High Court is also considered and in para 17, 18 & 19 has observed as under by the Supreme Court: "17. A Division Bench of the Kerala High Court has subsequently overruled the dictum laid down by the single Judge in the above case (vide Maya Devi v. M.K. Krishna Bhattathiri). The same fate had fallen on the view adopted by the single Judge of the Karnataka High Court in Madhukar case when a Division Bench had subsequently overruled it (State of Karnataka v. Nagappa) N. Venkatachaliah and S.A. Hakeem, JJ (as they then were) dealt with the background of introducing Rule 3-A in Order 41 of the Code and after discussion held that sub-rule (1) of Rule 3-A is mandatory. However, learned Judges pointed out that sub-rule (2) and (3) have been employed by the legislature for highlighting the purpose of introducing such a new rule. The following passage from the judgment of the Division Bench of the Karnataka High Court can usefully be quoted in this context. However, learned Judges pointed out that sub-rule (2) and (3) have been employed by the legislature for highlighting the purpose of introducing such a new rule. The following passage from the judgment of the Division Bench of the Karnataka High Court can usefully be quoted in this context. "A combined reading of sub-rules (1) and (2) of Rule 3-A 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) (2) of Rule 3-A becomes clear from the legislative history of new Rule 3-A to which we have already adverted." 18. We may also point out that a Division Bench of the Patna High Court has adopted the same view even earlier in State of Bihar v. Ray Chandi Nath Sahay. 19. The subject of enacting Rule 3-A in Order 41 of the Code seems to be twofold. First is, to inform the appellant himself who filed a time-barred appeal that it would not be entertained unless it is accompanied by an application explaining the delay. Second is, to communicate to the respondent a message that it may not be necessary for him to get ready to meet the grounds taken up in the memorandum of appeal because the Court has to deal with application for condonation of delay as a condition precedent. Barring the above objects, we cannot find out from the Rule that it is intended to operate as unremediably or irredeemably fatal against the appellant if the memorandum is not accompanied by any such application at the first instance. In our view, the deficiency is a curable defect, and if the required application is filed subsequently the appeal can be treated as presented in accordance with the requirement contained in Rule 3-A Order 41 of the Code." 4. From the aforesaid it is clear that even if the memorandum of appeal is not accompanied by such an application at the first instance the deficiency is curable it can be rectified. From the aforesaid it is clear that even if the memorandum of appeal is not accompanied by such an application at the first instance the deficiency is curable it can be rectified. In the light of the legal principle laid down by Supreme Court in the case of State of M. P. v. Pradeep ( supra) as indicated hereinabove and by following the same learned additional district Judge having entertained the application for condonation of delay, I find no error of law or error of jurisdiction in the matter. Discretion exercised by Court below in allowing the appeal and the application under section 5 of the Limitation Act. 5. As far as condonation of delay on merit is concerned on the basis of the affidavit filed learned Court has found that clerk of the counsel with whom the papers were kept has committed some default, because of the negligence of the Advocate or his clerk parties could not suffer loss, taking a pragmatic view of the matter and by ignoring to take hyper technical view delay in filing the appeal is condoned. As the discretion exercised by both the Court below in condoning the delay in filing of appeal is after appreciating the facts and circumstances of the case and as cogent reasons is indicated in the order I find the same to be legal and warranting no interference in this petition under section 115 of CPC. Considering the same finding no case made out for admission, the petition stands dismissed at the stage of admission without notice to the respondents.