JUDGMENT R. Gogoi, J. 1. This Second Appeal is by the Defendant and is directed against the judgment and decree dated 10.1.1997 passed by the learned Civil Judge (Senior Division) Barpeta in Title Appeal No. 23 of 1994. By the aforesaid judgment and decree dated 10.1.97, the learned Lower Appellate Court has dismissed the Defendant's appeal against the judgment decreeing the Plaintiffs' suit passed by the learned trial Court. It may be noticed at this stage that the dismissal of the Defendant's appeal by the learned lower Appellate Court is on the sole ground that the appeal filed by the Defendant was barred by limitation. 2. By order dated 18.6.1997 while admitting this Second Appeal this Court had framed the following substantial question of law for adjudication. Whether the learned Court below was justified in dismissing the appeal on the plea of limitation in the background of the facts and circumstances of the case. 3. The suit of the Plaintiff was for declaration of his right, title, interest and possession in respect of the suit land mentioned in the schedule to the plaint and for permanent injunction. The suit of the Plaintiff was decreed by the learned trial Court on 22.8.94. Against the aforesaid judgment and decree passed by the learned trial Court, the present Appellant i.e. the Defendant in the suit instituted Title Appeal No. 23/1994 in the Court of the learned Civil Judge (Senior Division), Barpeta. The appeal of the Defendant was filed on 7.11.94, on which date according to the Defendant, the Court had reopened after the long vacation for the calendar year 1994. The appeal was admitted by the learned lower Appellate Court to regular hearing. However, at the hearing of the appeal it was pointed out by the Respondent in the appeal (Plaintiff in the suit) that the appeal was barred by time inasmuch as the Courts had reopened after the long vacation of the year 1994 on 4.11.94 and not on 7.11.94. The Defendant/Appellant contested the plea of limitation by contending that as the appeal had been admitted to regular hearing, no such plea can be advanced. It will be important to note at this stage that the Defendant/Appellant neither filed any application for condonation of the delay nor had sought leave of the learned lower Appellate Court to file any such application for condonation. It will be important to note at this stage that the Defendant/Appellant neither filed any application for condonation of the delay nor had sought leave of the learned lower Appellate Court to file any such application for condonation. The learned Lower Appellate Court taking note of a decision of this Court in the case of Meghalaya State Electricity Board, Shillong v. Shri Ambunath Choudhury and Ors. reported in (1993) 2 GLJ 208 took the view that, notwithstanding the admission of the appeal, it was open to the Respondent in the appeal to raise the question of limitation and as the appeal filed by the Defendant/Appellant was barred by time and no application for condonation of the delay was on record, the appeal merited dismissal. Accordingly, the judgment and decree dated 10.1.1997 was passed dismissing the Defendant's appeal and affirming the judgment and decree dated 22.8.1994 passed by the learned trial Court. 4. I have heard Sri A.S. Choudhury, learned Senior Counsel appearing for the Appellant and Sri M.A. Sheikh, learned Counsel appearing for the Respondents. 5. Sri Choudhury, learned Counsel for the Appellant, has urged that if the appeal filed by the Defendant/Appellant was barred by time, the office ought not to have placed the matter before the Court for its consideration and ought to have treated the said appeal as defective. Not only this was not done; on the matter being placed before the Court the appeal was admitted to regular hearing. In a situation where at the hearing of the appeal it was found that the appeal was really time barred and was not accompanied by any application for condonation of delay, an opportunity to file such an application seeking condonation was required to be given to the Appellant. The same not having been done, the learned Lower Appellate Court had failed to exercise its jurisdiction and the dismissal of the appeal on the ground of limitation on that basis discloses patent errors giving rise to a substantial question of law which is required to be answered in favour of the present Appellant by this Court. Sri Choudhury, learned Counsel for the Appellant, has primarily placed reliance on a judgment of the Karnataka High Court in the case of State of Karnataka v. Nagappa reported in AIR 1986 Kar 199 . Sri Choudhury, learned Counsel for the Appellant, has primarily placed reliance on a judgment of the Karnataka High Court in the case of State of Karnataka v. Nagappa reported in AIR 1986 Kar 199 . Reliance has also been placed on several other judgments, details of which will be noted in the course of the discussions hereinafter. 6. In State of Karnataka (supra) a time barred appeal was filed by the State of Karnataka without an application for condonation of delay. Such application for condonation came to be filed subsequently. The time barred appeal was dismissed as the condonation application was not filed along with the appeal. In such circumstances, the question that arose was one with regard to the true meaning and effect of Order 41 Rule 3A of the Code of Civil Procedure and the correctness of an earlier judgment of a learned Single Judge of the Karnataka High Court in the case of Madhukar Daso Deshpande v. Anant Nilkantha Deshpande and Ors. reported in AIR 1984 Kar 40 . The Division Bench of the Karnataka High Court elaborately considered the object behind the enactment of Rule 3A of Order 41 of the Code of Civil Procedure and the 27th report of the law Commission, in this regard submitted on the basis of the Privy Council decision in the case of Sunderbai and Anr. v. Collector of Belgaum and Ors. reported in AIR 1918 PC 135, which is to the effect that the Courts in India should adopt a procedure which will secure, at the stage of admission, a final determination of the question of limitation upon hearing the concerned parties. On such consideration, the view taken by the Karnataka High Court is that Order 41 Rule 3A, Code of Civil Procedure is a procedural provision and it was also noticed that Rule 3A does not contemplate dismissal of the appeal itself if the application for condonation is not filed along with the appeal. In the above situation, the Division Bench of the Karnataka High Court took the view that if a time barred appeal is not accompanied by a condonation application such an application can be filed subsequently and further that merely because the condonation application has not been filed the appeal cannot be dismissed. In the above situation, the Division Bench of the Karnataka High Court took the view that if a time barred appeal is not accompanied by a condonation application such an application can be filed subsequently and further that merely because the condonation application has not been filed the appeal cannot be dismissed. It was further held that if a time barred appeal is filed without an application for condonation, the same ought not to be dismissed on the said ground but an opportunity should be given to the Appellant to file an application for condonation of the delay. The view taken by the Karnataka High Court is largely similar to the views of the Gujrat High Court in the case of Naran Anappa Shethi v. Jayantilal Chunilal Shah reported in AIR 1987 Guj 205 of the Patna High Court in the case of Mosmat Ram Kali Kuer and Ors. v. Indradeo Choudhary and Anr. reported in AIR 1985 Pat 148 and of the Calcutta High Court in the case of Sm. Sipra Dey v. Ajit Kumar Dey reported in AIR 1988 Cal 30. All the aforesaid decisions have been relied upon by the learned Counsel for the Appellant in support of the arguments projected. 7. Mr. M.A. Sheikh, learned Counsel for the Respondents, has sought to controvert the arguments advanced on behalf of the Appellant by contending that in the present case the Defendant/Appellant on being apprised of the facts and circumstances on account of which the appeal filed by him was time barred, did not seek leave of the Court to file a condonation application. Instead, the stand of the Defendant/Appellant in the matter was that as the appeal has already been admitted to regular hearing, the plea of limitation cannot be advanced at such a stage. The aforesaid stand taken by the Defendant/Appellant being contrary to the law laid down by this Court in Meghalaya State Electricity Board, Shillong (supra) the same was rightly not accepted by the learned Lower Appellate Court. The aforesaid stand taken by the Defendant/Appellant being contrary to the law laid down by this Court in Meghalaya State Electricity Board, Shillong (supra) the same was rightly not accepted by the learned Lower Appellate Court. According to Sri Sheikh, learned Counsel for the Respondent, in the facts of the present case, when the Defendant/Appellant did not pray for leave of the Court to file an application for condonation, the application of the principles laid down by the Karnataka High Court in State of Karnataka (supra) and the similar views of the other High Courts, as noticed above, would have no application to the present case. 8. The rival submissions advanced on behalf of the parties have been duly considered. An appeal filed beyond the period of limitation as stipulated in the Limitation Act would not be maintainable and therefore liable to be dismissed by virtue of the provisions contained in Section 3 of the Limitation Act and not those engrafted in Order 41 Rule 3A of the Code of Civil Procedure Rule 3A only contemplates the requirement of an application for condonation along with the memorandum of appeal but does not visualize dismissal of the appeal itself if such application for condonation is not filed. Though the words 'shall be accompanied' have been engrafted in Rule 3A, the effect of the aforesaid words has to be construed by application of a well accepted canon of interpretation, namely, the consequences of non-adherence to what has been prescribed by the statute. As Rule 3A does not contemplate dismissal of the appeal itself, notwithstanding the use of the words 'shall be accompanied' the said words cannot be understood to have laid down a mandatory requirement. Rule 3A engrafts a procedural requirement and Rules of Procedure ought not to be understood to be capable of dictating substantive justice. I am, therefore, in full agreement with the views expressed by the Karnataka High Court in State of Karnataka (supra) and the other High Courts in Naran Anappa Shethi (supra) AIR 1987 Guj 205 Mosmat Ram Kali Kuer and Ors. (supra), AIR 1985 Pat 148 and Sm. Sipra Dey (supra) AIR 1988 Cal 30With all humility and respect, the principles laid down in the aforesaid judgment are wholesome principles which have the effect of advancing the cause of justice. (supra), AIR 1985 Pat 148 and Sm. Sipra Dey (supra) AIR 1988 Cal 30With all humility and respect, the principles laid down in the aforesaid judgment are wholesome principles which have the effect of advancing the cause of justice. I, therefore, hold that in the present case the learned Lower Appellate Court ought to have given the Defendant/Appellant an opportunity to file an application for condonation, once it was revealed that the appeal filed was barred by limitation and no application for condonation of delay had been filed by the Defendant/Appellant. 9. There is another issue that has to be dealt with by the Court. In the present case, the Defendant/Appellant did not seek the leave of the Court to file an application for condonation and instead had urged that the question of limitation cannot be raised once the appeal had been admitted to regular hearing. On the aforesaid facts, it has been argued on behalf of the Respondent that the requirement of giving an opportunity cannot arise. The argument raised, though attractive at first blush, would require a close consideration of the Court. Requirement of giving due opportunity by the Court is a fundamental principle of dispensation of justice by the Courts and cannot be made dependent on the volition of the parties. It is a cardinal requirement of fairness in the judicial process which alone can uphold the majesty of law. Such a requirement flows from the duties cast on the Court in its quest for justice which cannot be complete without the Court having to play a positive role in the matter. It is a requirement imposed on the Courts and is not contingent on what has been projected by the parties before the Court. In the present case, the appeal filed by the Defendant/Appellant being time barred could not have been admitted to regular hearing. A judicial mistake having occurred, the requirement of giving an opportunity to rectify the defect did not depend on the volition of the parties. It was a duty cast on the Court. In the present case, the appeal filed by the Defendant/Appellant being time barred could not have been admitted to regular hearing. A judicial mistake having occurred, the requirement of giving an opportunity to rectify the defect did not depend on the volition of the parties. It was a duty cast on the Court. I, therefore, hold that in the present case once it came to the knowledge of the learned Lower Appellate Court that the time barred appeal was erroneously admitted to regular hearing it was the duty of the Court to give the Defendant/Appellant an opportunity to file an application for condonation of the delay and thereafter to proceed with the appeal. 10. For the aforesaid reasons, I allow the Second Appeal, set aside the judgment and decree dated 10.1.1997 passed by the learned Civil Judge (Senior Division), Barpeta in Title Appeal No. 23 of 1994 and remand the matter to the learned lower Appellate Court for fresh consideration from the stage of giving an opportunity to the Defendant/Appellant to file an application for condonation of delay. Appeal allowed