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2020 DIGILAW 100 (CAL)

Swapan Kumar Chanda v. Krishnapada Chanda

2020-01-24

BIBEK CHAUDHURI

body2020
JUDGMENT Bibek Chaudhuri, J. - This is an application for condonation of delay under Section 5 of the Limitation Act filed by the plaintiff No.1/appellant/petitioner. 2. It is stated by the applicant in the instant application that he has filed an appeal being SAT 22 of 2014 assailing the judgment and decree dated 17th July, 2013 passed by the learned Civil Judge (Senior Division), Contai before this Court on 27th January, 2014. It is further stated by the applicant that he engaged one Advocate of this Court to prefer the second appeal within the statutory period of limitation but he did not file the appeal within time though all the documents including the certified copy of the impugned judgment and decree was handed over to him. Subsequently the applicant entrusted the present learned Advocate to file the appeal and he filed the same on 27th January, 2014. In this process there was delay of 22 days in preferring the appeal and registered the appeal in file. 3. I have heard learned Advocates for the applicant and the opposite parties. 4. Learned Advocate for the applicant makes his submission to the tune of the averment made in the application for condonation of delay. 5. It is however, pointed out by the learned Advocate for the opposite party that the present application under Section 5 of the Limitation Act was filed on 13th June, 2019, while the appeal was filed way back on 27th January, 2014. In this regard, he refers to the provision of Rule 3A of Order XLI which runs thus:- R. 3A. Application for condonation of delay. _ (1) 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 preferring the appeal within such period." 6. It is submitted by the learned Advocate for the opposite parties that the objective of enacting Rule 3A of Order XLI of the Code of Civil Procedure is first, to inform the appellant himself who file a time barred appeal that it would not be entertained unless it is accompanied by an application explaining the delay. It is submitted by the learned Advocate for the opposite parties that the objective of enacting Rule 3A of Order XLI of the Code of Civil Procedure is first, to inform the appellant himself who file a time barred appeal that it would not be entertained unless it is accompanied by an application explaining the delay. Secondly, to communicate to the respondent a message that it may not be necessary for him to get ready to meet the ground taken up in the memorandum of appeal because the court has to deal with the application for condonation of delay as a condition precedent. 7. In State of M.P vs. Pradeep Kumar, (2000) 7 SCC 372 , the consequence of not filing an application under Section 5 of the Limitation Act along with a time barred appeal is stated in the following words:- "What is the consequence if such an appeal is not accompanied by an application mentioned in sub-rule (1) of Rule 3A? 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. If the memorandum of appeal is filed in such appeal without accompanying the 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. 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. No doubt sub-rule (1) of Rule 3-A 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. The object of enacting Rule 3A 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 3A, Order 41 of the Code." 8. 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." 8. In view of the observation of the Hon'ble Supreme Court and the principle led down as to the consequence of non filing of an application under Section 5 of the Limitation Act along with the memorandum of appeal, the appellant/applicant is required to explain delay till filing of such application with sufficient cause for its contention. 9. In the instant case the appeal was filed on 27th January, 2014, 22 days after the expiry of the period of limitation. It is already recorded that the application under Section 5 of the Limitation Act was filed on 13th June, 2019. The applicant is required to explain the reasons for delay till the date of filing of the application under Section 5 of the Limitation Act. 10. In view of what has been stated above, the instant application under Section 5 of the Limitation Act is rejected.