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2017 DIGILAW 1106 (KER)

Chandramgadan M. D. v. Mallika Devi M D

2017-08-02

DEVAN RAMACHANDRAN, P.N.RAVINDRAN

body2017
ORDER P.N. Ravindran, J. 1. The prayer in this application filed by the first respondent in the appeal is to recall the order passed by this court on 21.4.2017 on C.M.Appln. No.178 of 2017 and afford the applicant an opportunity of being heard before condoning the delay in filing the appeal and before admitting the appeal. 2. The applicant has in the affidavit filed in support of the application averred that he received notice of the appeal by registered post on 23.5.2017, that the date fixed for appearance was shown therein as on or after 7.6.2017, that the lawyer engaged by him filed vakalath on his behalf and the appeal thereafter came up for consideration on 16.6.2017. He has further averred that through his counsel was instructed to seek time for filing objections to the petition to condone the delay of 141 days in filing the appeal, his counsel came to know that the delay had already been condoned by order passed on 21.4.2017. The deponent has averred that on enquiry he understands that the delay of 141 days in filing the appeal was condoned without notice to him and the other respondents. Relying on Order XLI Rule 3A(2) of the Code of Civil Procedure, the applicant contends that unless the application to condone the delay in filing the appeal is rejected in limine, the respondents are entitled to be put on notice before the application to condone delay is allowed, but in the instant case, the delay in filing the appeal was condoned without notice to the respondents ignoring the said provision. 3. The endorsements on the instant application show that a copy thereof has been served on Sri.B.Kishor, learned counsel appearing for the appellants. Learned counsel for the appellants is, however, not present. There is also no representation on his behalf. The appellants, who are respondents 1 to 3 in the instant application, have not filed a counter affidavit opposing the application. We, therefore, heard learned counsel appearing for the applicant. Learned counsel for the applicant submitted, reiterating the averments in the affidavit filed in support of the application that before the delay of 141 days in filing the appeal was condoned by order passed on 21.4.2017 on C.M.Application No.178 of 2017, none of the respondents in the appeal were put on notice or heard. Learned counsel for the applicant submitted, reiterating the averments in the affidavit filed in support of the application that before the delay of 141 days in filing the appeal was condoned by order passed on 21.4.2017 on C.M.Application No.178 of 2017, none of the respondents in the appeal were put on notice or heard. Learned counsel submitted that the procedure adopted by this court in condoning the delay violates sub-rule (2) of Rule 3A of Order XLI of the Code of Civil Procedure. 4. We have considered the submissions made at the Bar by the learned counsel appearing for the applicant. The "materials before us disclose that R.F.A.No.149 of 2017 arising from the decree and judgment passed by the Court of the Subordinate Judge of Ernakulam on 30.6.2016 in O.S.No.140 of 2014, was presented in this court on 29.3.2017. Along with the said appeal, the appellant had filed C.M.Application No.178 of 2017 to condone the delay of 141 days in filing the appeal and LA.No.768 of 2017 for staying all further proceedings pursuant to the preliminary decree passed by the trial court. The application to condone delay initially came up before a Division Bench of this court on 4.4.2017. On that day, it was adjourned to 10.4.2017. The application did not, however, come up on 10.4.2017. It came up only on 12.4.2017. On that day, it was adjourned to 21.4.2017, On 21.4.2017, the Division Bench admitted the appeal and ordered notice to be issued to the respondents. The Division Bench also condoned the delay of 141 days in filing the appeal by a separate order passed on C.M.Application No. 178 of 2017. Thereupon, notice was sent to the respondents from this court with the hearing date fixed as 7.6.2017 and they were served. The first respondent thereafter entered appearance through counsel and filed the instant application seeking the aforesaid relief. 5. It is evident from the materials before us that it was without notice to the respondents in the appeal that the delay of 141 days in filing the appeal was condoned. It is true that this court might have condoned the delay after notice to the respondents, if the appellants are able to show sufficient cause for the delay of 141 days notwithstanding the objections that the respondents may raise by filing a counter affidavit . It is true that this court might have condoned the delay after notice to the respondents, if the appellants are able to show sufficient cause for the delay of 141 days notwithstanding the objections that the respondents may raise by filing a counter affidavit . The fact, however, remains that before the delay in filing the appeal was condoned, the respondents in the appeal were not put on notice. Sub-rule (1) of Rule 3A of Order XLI of the Code of Civil Procedure stipulates that when an appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the court that he had sufficient cause for not presenting the appeal within such period. Sub-rule (2) thereof provides that if the court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the court before it proceeds to deal with the appeal under Rule 11 or Rule 13 as the case may be. Rule 11 of Order XLI empowers the appellate court to dismiss the appeal in limine after hearing the appellant or his pleader on a day to be fixed for the purpose. It is only if the appellant makes out a prima facie case that the appellate court will entertain the appeal and order notice to the respondent. Rule 13, which was omitted with effect from 1.7.2002 by Central Act 46 of 1999, stipulated that where the appeal is not dismissed under Rule 11, the appellate court shall send notice of the appeal to the court from whose decree the appeal is preferred. In other words, Rule 11 empowers the appellate court to dismiss an appeal at the threshold after hearing the appellant or his counsel. Sub-rule (2) of Rule 3A of Order XLI stipulates that where the appeal is one filed with a delay, unless the court rejects the application to condone delay in limine, the respondent shall be put on notice and the petition to condone delay decided before the court proceeds to exercise the jurisdiction under Rule 11, namely, to admit the appeal. Sub-rule (2) of Rule 3A of Order XLI stipulates that where the appeal is one filed with a delay, unless the court rejects the application to condone delay in limine, the respondent shall be put on notice and the petition to condone delay decided before the court proceeds to exercise the jurisdiction under Rule 11, namely, to admit the appeal. In the instant case, that procedure, which is mandatory was overlooked before the delay in filing the appeal was condoned and the appeal was admitted, thereby, denying the respondents in the appeal an opportunity to object to the application to condone the delay in filing the appeal. We, therefore, recall the order passed by this court on 21.4.2017.on the application to condone delay, without notice to the respondents in the appeal as also the order admitting the appeal. Registry is directed to post CM.Application No.178 of 2017 for consideration on the merits on 10.8.2017. In that view of the matter, the notice issued to respondents from this court on 19.5.2017 shall be treated as notice on the application to condone delay. The respondents in CM.Application No.178 of 2017 shall file their objections if any, to the said application, within a week from today. Call on 10.8.2017.