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2013 DIGILAW 1237 (JHR)

Shankar Ram Ravidas v. Shyam Nandan Sahay

2013-11-18

D.N.UPADHYAY

body2013
ORDER : This revision application has been filed against the order dated 27.8.2010 passed by the learned District Judge, Hazaribagh, in connection with Misc. Appeal No. 22 of 2008 whereby the learned District Judge has dismissed the appeal on the ground that compliance of order XLI rule 3 A of the Code of Civil Procedure, was not complied with. 2. It is submitted that the Misc. Appeal No. 22 of 2008 was filed by the petitioner on 17.12.2008 under Order XLIII rule 1 of the Code of Civil Procedure for setting aside the order of abatement and petition under section 5 of the Limitation Act was filed on 15.1.2009. The petitioner has assigned valid reasons in the application under section 5 of the Limitation Act, but the learned Dist. Judge has wrongly considered the observations made by this Court in the case of National Insurance Co. Ltd Vs. Smt Runiya Binha & Ors reported in 2008(4) JCR 753 (Jhr) and dismissed the appeal. It is submitted that the provision contained under order XLI, rule 3A, C.P.C. is not mandatory, rather it is directive. The judgment relied upon by the learned court below was passed in prevailing circumstances. In that very case, adjournments after adjournments were given to the appellant to remove the defects pointed out by the office including the defect that petition under section 5 of the Limitation Act was not filed along with the memo of appeal. Specific direction given by the High Court to the appellant to file petition under section 5 of the Limitation Act was not complied with in time and, therefore, considering the situation that appeals are being filed without accompanied by a petition under section 5 of the Limitation Act have been causing delay in disposal of the matter and therefore this Court in para 6 of the judgment reported in 2008(4) JCR 753 (Jhr) held that if the time barred memo of appeal is filed without accompanying the limitation petition, then the Court must take it strictly and, in exceptional circumstances, delay is to be condoned if the limitation petition is filed subsequent to the filing of the memo of appeal. 3. 3. Learned counsel appearing on behalf of the opposite party has vehemently opposed the prayer and submitted that if the memo of appeal is filed after delay, then petition under section 5 of the Limitation Act for condoning the delay must be filed along with the memo of appeal as prescribed under order XLI rule 3 A of the Code of Civil Procedure. It is further argued that the limitation petition filed by the petitioner was not disclosing valid grounds and therefore the learned District Judge has rightly refused to condone the delay. 4. I have gone through the impugned order which indicates that the learned District Judge has not given reasons for disallowing the ground taken in the limitation petition filed under section 5 of the Limitation Act; rather, the court has rejected the petition on the ground that it was filed after delay of 29 days after filing of the memo of appeal for which no reason was assigned. In this context, the ratio decided and the guidelines given by the apex court in the judgment in the case of State of M.P. & another Vs. Pradeep Kumar & another reported in 2000(7) SCC 372 is more convincing and gives clarity on the issue involved in the case. Their Lordships in para 10, 11 and 19 of the said judgment have discussed the issues and given reasons whether the word 'shall' used in Rule 3A Order XL1 will be directory or mandatory and it is desirable to re-produce those paragraphs hereunder. “10. What is the consequence if such an appeal is not accompanied by an application mentioned in sub rule (1) of Rule 3-A? It must be noted that the Code indicates in the immediately preceding Rule that the consequence of not complying with the requirements in Rule 1 would include rejection of the memorandum of appeal. Even so, another option is given to the court by the said Rule and that is to return the memorandum of appeal to the appellant for amending it within a specified time or then and there. It is to be noted that there is no such rule prescribing for rejection of memorandum of appeal in a case where the appeal is not accompanied by an application for condoning the delay. It is to be noted that there is no such rule prescribing for rejection of memorandum of appeal in a case where the appeal is not accompanied by an application for condoning the delay. If the memorandum of appeal is filed in such appeal without an accompanying application to condone delay the consequence cannot be fatal. The court can regard in such a case that there was no valid presentation of the appeal. In turn, it means that if the appellant subsequently files an application to condone the delay before the appeal is rejected the same should be taken up along with the already filed memorandum of appeal. Only then the court can treat the appeal as lawfully presented. There is nothing wrong if the court returns the memorandum of appeal (which was not accompanied by an application explaining the delay) as defective. Such defect can be cured by the party concerned and present the appeal without further delay. 11. No doubt sub rule (1) of Rule 3A has used the word “shall”. It was contended that employment of the word “shall” would clearly indicate that the requirement is peremptory in tone. But such peremptoriness does not foreclose a chance for the appellant to rectify the mistake, either on his own or being pointed out by the court. The word “shall” in the context need be interpreted as an obligation cast on the appellant. Why should a more restrictive interpretation be placed on the sub-rule? The Rule cannot be interpreted very harshly and make the non-compliance punitive to an appellant. It can happen that due to some mistake or lapse an appellant may omit to file the application (explaining the delay) along with the appeal. 19. The object 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. 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 3A order 41 of the Code.” 5. The judgment passed by the Division Bench of the Patna High Court in the case of State of Bihar Vs. Rai Chandinath Sahay (1983 Patna 189) has been approved by the Supreme Court. 6. The judgment reported in 2008(4) JCR 753 (supra) was passed in prevailing circumstances that the time barred memo of appeals are being filed without accompanying a petition under section 5 of the Limitation Act and it is not being complied with even after years together and perhaps the judgment reported in 2000(7) SCC 372 (supra) was not brought to the notice of the Court. Since the apex court in the judgment in the case of State of M.P. & another (supra) has discussed the issue by approving and disapproving judgments of different High Courts, I feel that the impugned order dated 27.8.2010 passed by the learned District Judge, Hazaribagh, in connection with Misc. Appeal No. 22 of 2008 is not tenable and is fit to be set aside. For the reasons aforesaid, this civil revision application is allowed and the impugned order dated 27.8.2010 is hereby set aside with the direction that the learned District Judge shall consider the grounds taken in the petition filed under section 5 of the Limitation Act and shall pass a fresh order either for admitting or refusing the appeal.