Research › Search › Judgment

Kerala High Court · body

2018 DIGILAW 880 (KER)

Usha v. Visakh Unnikrishnan

2018-10-31

P.B.SURESH KUMAR, SATHISH NINAN, V.CHITAMBARESH

body2018
ORDER : An application for leave to appeal as an indigent under order XLIV of the code of Civil procedure (hereinafter referred to as "the code") accompanied by an application to condone delay, is it to be numbered pending condonation of delay or need it be numbered only after the delay is condoned, is the short question referred. There is an apparent conflict between the direction issued in C.M.C. (P) No. 44 of 2005 with the direction in S.A. No. 1837 of 1967 and Circular No. 22/1968 dated 12.09.1968. An answer, though hardly of any judicial significance is necessary to streamline the procedure to be adopted by the registry. 2. Circular No. 22/1968 issued by the High Court reads as follows:- "There is no unifomllty at present in the practice followed in the subordinate courts in the State in numbering and disposing of appeals filed after limitation. The High Court hereby directs that all appeals filed after limitation should be numbered in the regular order and if the petition to condone the delay is dismissed, the appeal, which has already been numbered, should also be dismissed along with the rejection of the petition to condone the delay. The direction will be followed in supersession of the practice now existing" The circular, though issued for subordinate civil courts, in principle is being followed in this court also. 3. In Thambi v. Mathew [ 1987 (2) KLT 848 (F.B)], a Full Bench of this court after analysing the provisions of order XLI of the code and the relevant judgments held that, if an appeal presented out of time is accompanied by an application to condone the delay, there is proper presentation of the appeal. An appeal presented out of time was held to be a valid appeal in the eye of law. The full bench held thus, "An appeal presented out of time is nevertheless an appeal in the eye of law for all practical purposes. An order dismissing the appeal is a decree that can be subject of a second appeal. An appeal presented out of time was held to be a valid appeal in the eye of law. The full bench held thus, "An appeal presented out of time is nevertheless an appeal in the eye of law for all practical purposes. An order dismissing the appeal is a decree that can be subject of a second appeal. " "An appeal registered under R. 9 of O.41 is to be disposed of according to law and a dismissal of the appeal for the reason of delay in its presentation after the dismissal of an application for condonation of delay is in substance and effect a confirmation of the decree appealed against." The above view was affirmed by the Apex court in Shyam Sundar Sarma v. Pannalal Jaiswal [2005 (1) KLT 198 (S.C)]. It was held, "Thus, the position that emerges on a survey of the authorities is that an appeal filed along with an application for condoning the delay in filing that appeal when dismissed on the refusal to condone the delay is never the less a decision in the appeal." Therefore, it needs no further elaboration to hold that an appeal accompanied by a delay petition is still a valid appeal registered on the date of filing and is to be numbered. 4. Order XLIV of the code deals with filing of appeals by Indigent persons. Rule (1) of order XLIV mandates that such appeals shall be accompanied by an application seeking leave to file the appeal as an indigent. Such applications are being numbered in the registry as "C.M.C. (P)". If such appeal is filed beyond the period of limitation and is accompanied by an application seeking condonation of delay in filing, are the C.M.C(P) and appeal to be numbered on filing or are they to be numbered only on condonation of del ay, is the question. The principles as noticed supra regarding the filing of appeals beyond the period of limitation supported by a delay condonation petition, apply equally to indigent appeals also. If the delay is condoned, the C.M.C(P) and thereafter the appeal are proceeded with. If the petition seeking condonation of delay happens to be dismissed, the C.M.C(P) and consequently the appeal entails dismissal. The principles as noticed supra regarding the filing of appeals beyond the period of limitation supported by a delay condonation petition, apply equally to indigent appeals also. If the delay is condoned, the C.M.C(P) and thereafter the appeal are proceeded with. If the petition seeking condonation of delay happens to be dismissed, the C.M.C(P) and consequently the appeal entails dismissal. Going by the judgments in 2005 (1) KLT 198 (S.C.) and 1987 (2) KLT 848 (F.B.) referred to supra, the dismissal on the ground of limitation amounts to confirmation of the trial court decree. Incidentally we do notice that if the appeal is filed within the period stipulated for a regular appeal under order XLI but beyond the period stipulated for an indigent appeal under order XLIV, on the dismissal of the delay petition accompanying a C.M.C(P), the appeal could be saved by paying the court fee since the appeal is within time if considered as a regular appeal under order XLI. So also, if the delay is condoned but the C.M.C. (P) is not granted, meaning thereby that permission to sue as an indigent is refused, the appellant can pay the court fee payable and proceed with the appeal. If he fails to pay the required court fee, then the appeal will be rejected under order VII Rule 11(c) of the code. That order VII Rule 11 applies to rejection of appeals has been held by a bench of the Travancore-cochin High court in Thayikutty Warasayar v. Kunhen Warrier [ 1951 KLT 562 : AIR 1952 T.C. 5 ]. Section 141 of the code further fortifies the said view. In terms of section 2(2) of the code, rejection of the appeal will amount to decree. we have only demonstrated that, viewed in any manner, a valid appeal is registered on its filing for all practical purposes even if the appeal and C.M.C(P) are accompanied by a petition to condone delay in filing the appeal. In view of the fact that there is a resultant decree on the disposal of the appeal albeit on the ground of delay, it is only proper that the appeal and C.M.C(P) be numbered when filed in the registry even if it is accompanied by a delay petition. In view of the fact that there is a resultant decree on the disposal of the appeal albeit on the ground of delay, it is only proper that the appeal and C.M.C(P) be numbered when filed in the registry even if it is accompanied by a delay petition. Not only that it would be the proper procedure, but the above course would also be of help for the registry, lawyers and litigants in identifying and tracing their case files. 5. We direct the registry to number C.M.C(P)'s and appeals which are filed accompanied by a delay petition, even pending orders on the delay petition. The subordinate courts shall continue to follow circular No. 22/1968. The reference is answered accordingly.