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Andhra High Court · body

2020 DIGILAW 743 (AP)

D. Prameelamma v. State of Andhra Pradesh

2020-11-25

BATTU DEVANAND

body2020
ORDER : 1. This Civil Revision Petition is filed against the order, dated 24.08.2017 in I.A. No. 1646 of 2017 in A.S.S.R. No. 13747 of 2017 (Subsequently numbered as A.S. No. 62 of 2017) on the file of the Principal District Judge, Kadapa, Y.S.R. District. 2. The petitioners are the plaintiff and respondents are the defendants in a suit in O.S. No. 24 of 2005 on the file of the Additional Senior Civil Judge, Kadapa, Y.S.R. District. 3. For convenience, the parties are referred to as plaintiffs and defendants. 4. The facts that lead to the filing of this Civil Revision Petition are briefly as under. 5. The plaintiffs filed a suit in O.S. No. 24 of 2005 on the file of the Additional Senior Civil Judge, Kadapa, Y.S.R. District for compensation. On consideration of material available on record i.e. both oral and documentary, the Court below decreed the suit in favour of the plaintiffs by its decree and judgment dated 11.07.2016. Aggrieved by the said decree and judgment, the defendants filed an appeal in A.S.S.R. No. 13747 of 2017 (Subsequently numbered as A.S. No. 62 of 2017) on the file of the Principal District Judge, Kadapa, Y.S.R. District. The defendants along with the appeal filed interlocutory application in I.A. No. 1646 of 2017 seeking to condone the delay of 352 days in preferring the appeal. The Principal District Judge, Kadapa, Y.S.R. District, allowed I.A. No. 1646 of 2017 by its order, dated 24.08.2017 condoning the delay of 352 days in filing the appeal. Aggrieved by the same, the present Civil Revision Petition is filed by the plaintiffs. 6. Heard Sri. V.R. Reddy Kovvuri, learned counsel for the petitioners/plaintiffs and the learned Government Pleader for Arbitration appearing for the respondents/defendants. 7. The learned counsel for the petitioners/plaintiffs submits that the Court below committed gross illegality in allowing the application filed under Section 5 of the Limitation Act, 1963 that too without putting the petitioners on notice. He contended that an affidavit is filed along with an application seeking to condone the inordinate delay of 352 days and the said affidavit does not contain any reason whatsoever much less valid reasons for condonation of such inordinate delay. 8. He contended that an affidavit is filed along with an application seeking to condone the inordinate delay of 352 days and the said affidavit does not contain any reason whatsoever much less valid reasons for condonation of such inordinate delay. 8. Learned counsel would submit that it is well settled legal principle that the party to the litigation who was not diligent in prosecuting their case is bound to show sufficient cause for the delay in filing the application for condonation of such delay and the affidavit filed in support of the application filed does not contain any sufficient cause and the Court below committed gross illegality in allowing the same without assigning any reasons whatsoever. The learned counsel requested to allow the present Civil Revision Petition by setting aside the order, dated 24.08.2017 in I.A. No. 1646 of 2017 in A.S.S.R. No. 13747 of 2017 (Subsequently numbered as A.S. No. 62 of 2017) on the file of the Principal District Judge, Kadapa, Y.S.R. District. 9. On the other hand, the learned Government Pleader submits that under Order 41 Rule 14(4) of Code of Civil Procedure, the Court below is competent to pass such order considering the reasons stated in the affidavit filed by the respondents seeking to condone the delay. He contends that the averments of the affidavit filed along with the condone delay petition would establish the sufficient cause for condoning the delay in filing the appeal. As such, the learned Government Pleader submits that there is no infirmity in the order of the Lower Appellate Court and no interference is required by this Court in the Civil Revision Petition and sought dismissal of the present Civil Revision petition. 10. The note put up by the office in I.A. No. 1646 of 2017 and the order passed by the learned Principal District Judge, Kadapa, Y.S.R. District are extracted hereunder: Petition under Order 41 Rule 3(A) of CPC “Petitioner/Appellant/Defendant prays to condone the delay of 352 days in preferring the Appeal for the reasons stated in the accompanying affidavit. Submitted for orders. 24.08.2017. Heard. Petition is allowed as notice need not be served for incidental proceedings under Order 41 Rule 14(4) of CPC. Hence, office is directed to number the appeal if it is otherwise in order.” 11. Submitted for orders. 24.08.2017. Heard. Petition is allowed as notice need not be served for incidental proceedings under Order 41 Rule 14(4) of CPC. Hence, office is directed to number the appeal if it is otherwise in order.” 11. On perusal of the material available on record, admittedly, the defendants filed I.A. No. 1646 of 2017 under Section 5 of Limitation Act R/w Order 41 Rule 3(A) of C.P.C. seeking to condone the delay of 352 days in filing the appeal. 12. Before going into the relative merits of the contentions of both sides, it is appropriate to consider the relevant provisions of CPC for filing the appeals from Original Decrees. Order XLI of CPC deals with the same. Rule 3-A of Order XLI CPC has been added by an Act No. 104 of 1976 with effect from 01-02-1977. Now, it is apt to look into the said provision and the same is extracted hereunder: Order XLI Rule 3-A CPC: “3A. Application for condonation of delay: (1) When an appeal is presented after the expiry of the period of limitation specified there for, 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. (2) 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. (3) Where an application has been made under Sub-Rule (1), the court shall not make an order for the stay of execution of the decree against which the appeal is proposed to be filed so long as the court does not, after hearing under rule 11, decide to hear the appeal.” Prior to the introduction of the above said amendment, by way of Rule 3-A, where an appeal is filed after the expiry of the period of limitation, it is the practice to admit the appeal subject to the provisions as to limitation being raised at the time of hearing as the said practice has been disapproved by the Privy Council. By the 1976 Act, the new Rule 3-A has been added to Order XLI for adopting a procedure for securing the final determination of the question as to limitation even at the stage of admission of the appeal. A reading of Rule 3-A makes it clear that it does not prescribe the period of limitation for an appeal, but the period of limitation is provided under Article 111 of Limitation Act, 1963 in respect of appeals and it cannot be said that order XLI Rule 3-A gives any additional right to litigants to claim condonation as it is not a matter of right. This issue was considered by the Madras High Court in a decision in Managing Director, Thanthal Periyar Transport Corporation, Villupuram vs. K.C. Karthiyayini, AIR 1995 Madras 102 which says that the litigant who comes to court after the prescribed period of limitation is bound to satisfy the court that he has sufficient cause for the delay. The ratio laid down in the decision Miss Nirmala Chaudhary vs. Bisheshar Lal, AIR 1979 Delhi 26 is that the power to condone delay under Rule 3-A is in addition to the power under Section 5 of Limitation Act. There is another judgment of Madhya Pradesh High Court in Chhitu vs. Mathuralal and Others, AIR 1981 M.P. 13 which says that the governing expression in Rule3-A(2) 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 makes it imperative for the appellate court first to decide the question of limitation, it puts an embargo on the Courts power to proceed further in the appeal. The appeal cannot be heard even on the question of admission, much less on merits or facts and it further held that there is no appeal before the court unless the delay is condoned. The appeal cannot be heard even on the question of admission, much less on merits or facts and it further held that there is no appeal before the court unless the delay is condoned. It is also necessary to consider the judgment of Patna High Court in For Besganj Jagdish Mill Ltd. vs. Kalora, AIR 1985 Patna 212 wherein it was held that, a time barred appeal or application is admitted as ex-parte without opportunity to the respondent to oppose it, the order will be subject to the rights of the respondent to be heard in the appeal on the question of limitation and it was further held that an order condoning delay in filing an appeal adversely affects the respondent who has a right to be heard before a final order in this regard can be passed. On considering the above mentioned decisions of various High Courts, it is clear that the application filed under order XLI Rule 3-A cannot be decided ex-parte without affording an opportunity to the respondent. But in the case on hand, the Lower Appellate Court without regard to the mandate stipulated in Rule 3-A of Order XLI, erroneously allowed the application filed for condonation of delay of 352 Days in filing the appeal without affording an opportunity to the respondent by observing that notice need not be served for incidental proceedings under Order XLI Rule 14(4) CPC. The Lower Appellate Court committed a blunder in allowing the said application and also placing reliance on Rule 14 (4) CPC for not issuing the notice to the respondent. The Learned District Judge failed to understand the provisions of CPC more particularly Rule 3-A and Rule 14(4) of Order XLI CPC. A reading of Rule 9 of Order XLI says that the Court from whose decree an appeal lies shall entertain the memorandum of appeal and shall endorse thereon the date of presentation and shall register the appeal in a book of appeal kept for that purpose. Rule 10 relates to furnishing of security for costs. Rule 11 relates to hearing of appeals registered under Rule 9. Rule 11-A, which was also introduced through Act No. 104 of 1976 with effect from 01-02-1977 deals with time within which hearing should be concluded and Rule 12 relates to fixing the day for hearing the appeal and Rule 13 was omitted by Act No. 46 of 1999. Rule 11 relates to hearing of appeals registered under Rule 9. Rule 11-A, which was also introduced through Act No. 104 of 1976 with effect from 01-02-1977 deals with time within which hearing should be concluded and Rule 12 relates to fixing the day for hearing the appeal and Rule 13 was omitted by Act No. 46 of 1999. In the present case, it is necessary to have a glance of Rule 14 of Order XLI and the same is extracted hereunder: Order XLI Rule 14 of CPC: Publication and service of notice of day for hearing appeal:- “(1) Notice of the day fixed under Rule 12 shall be affixed in the Appellate Court-house, and a like notice shall be sent by the appellate Court to the Court from whose decree the appeal is preferred, and shall be served on the respondent or his pleader in the appellate Court in the manner provided for the service on a defendant of a summons to appear and answer and all the provisions applicable to such summons, and to proceedings with reference to the service thereof, shall apply to the service of such notice. Provided that the appellate Court may dispense with service of notice on respondents against whom the suit has proceeded ex-parte in the Court from whose decree the appeal is preferred. (2) Appellate Court may itself cause notice to be served - Instead of sending the notice to the Court from which decree the appeal is preferred, the appellate Court may itself cause the notice to be served on the respondent or his pleader under the provisions above referred to. (3) The notice to be served on the respondent shad be accompanied by a copy of the memorandum of appeal. (4) Notwithstanding anything to the contrary contained in Sub-Rule (1), it shall not be necessary to serve notice of any proceeding incidental to an appeal on any respondent other than a person impleaded for the first time in the appellate Court, unless he has appeared and filed an address for the service in the Court of first instance or has appeared in the appeal. (5) Nothing in Sub-Rule (4) shall bar the respondent referred to in the appeal from defending it.” The proviso to Sub-Rule (1) of the above Rule 14 was incorporated by way of High Court amendment of our State and Sub-Rules 3 to 5 were inserted by Act No. 104 of 1976. The proviso to Sub-Rule (1) states that the respondent who remained ex-parte in the Court below, notice to him in the appeal may be dispensed with. 13. A perusal of the above said Rule makes it very clear that it relates to the Appeals which were registered under Rule 9 and taken up for hearing under Rule 11 but not to the cases where appeals are filed with an application to condone the delay in filing the said appeal. By no stretch of imagination, the Rule 14(4) can be pressed into service for dispensing with the notice to the respondent in an application for condonation of delay. Unless, the delay is condoned, the other provisions in Rule 4 onwards can be applied. The Lower Appellate Court failed to understand that this Sub Rule 4 of Rule 14 has no application to the applications filed under Rule 3-A of Order XLI. The exceptions to the mandatory requirement envisaged under Sub Clause 1 of Rule 14 of Order XLI is only in respect of the notice of any proceeding incidental to an appeal and not the main appeal itself. But in the present case, the appeal is not even taken on file and it is not registered as required under Rule 9 of Order XLI. 14. Upon perusing the above provisions of Code of Civil Procedure and the order passed by the Lower Appellate Court, it appears that the Lower Appellate Court has not applied its mind and failed to understand the provisions of law provided under Order XLI Rule 14 of CPC in correct perspective. The court below also failed to understand what are the incidental proceedings. Part-III of Code of Civil Procedure deals with incidental proceedings like power of the Court to issue commission, letter of request, etc. 15. The court below also failed to understand what are the incidental proceedings. Part-III of Code of Civil Procedure deals with incidental proceedings like power of the Court to issue commission, letter of request, etc. 15. The Hon'ble Supreme Court in Vareed Jacob vs. Sosamma Geevarghese and Others, 2004 (4) ALD 35 (SC) at Para No. 30 interpreted the “Incidental Proceedings” as under: A distinction is to be borne in mind keeping in view the fact that the incidental proceedings are in aid to the final proceedings. In other words an order passed in the incidental proceedings will have a direct bearing on the result of the suit. Such proceedings which are in aid of the final proceedings cannot, thus, be held to be at par with supplemental proceedings which may not have anything to do with the ultimate result of the suit. 16. In the present case, the Court below decreed the suit in favour of plaintiffs and against the said decree, the defendants preferred an appeal before the Lower Appellate Court and in preferring that appeal an interlocutory application was filed seeking condonation of the delay of 352 days in preferring the appeal. The interlocutory application which was filed under Section 5 of Limitation Act R/w Order XLI Rule 3-A CPC to condone the delay of 352 days in filing the appeal is not the “incidental proceedings” referred in Rule 14(4) of Order XLI CPC and the same was not noticed by the Lower Appellate Court. As such, the Lower Appellate Court bound to issue notice in the application filed under Rule 3-A of Order XLI CPC to the plaintiff who has an accrued right for being heard on the said application. As such invoking Rule 14(4) of Order XLI CPC in allowing the application in I.A. No. 1646 of 2017 is illegal, unsustainable and against the provisions of CPC. 17. An occasion had arisen for a learned single judge of High Court of Andhra Pradesh in Magadri Satyanarayana vs. B. Jayaramarao and Others, AIR 1990 A.P. 160 to consider the scope of Order XLI Rule 14(4) of CPC. 17. An occasion had arisen for a learned single judge of High Court of Andhra Pradesh in Magadri Satyanarayana vs. B. Jayaramarao and Others, AIR 1990 A.P. 160 to consider the scope of Order XLI Rule 14(4) of CPC. In the said judgment it was held as under: Order 41 Rule 14(4), C.P.C. postulates that “Notwithstanding anything to the contrary contained in Sub-Rule (1) it shall not be necessary to serve notice of any proceeding incidental to an appeal on any respondent other than a person impleaded for the first time in the appellate court, unless he has appeared and filed an address for the service in the Court of First instance or has appeared in the appeal.” This clearly postulates that if the person is impleaded for the first time then notice is necessary. Otherwise if the persons are impleaded in the tribunal below in the incidental proceedings viz. interlocutory orders notice need not be taken out by operation of Sub-Rule (4), R. 14, of O.41, C.P.C. The language used is non obstante clause. Sub-Rule (1) of Rule 14 of Order XLI postulates in mandatory language thus: “Notice shall be sent by the appellate court to the court from whose decree the appeal is preferred, and shall be served on the respondent or on his Pleader in the appellate court in the manner provided for the service on a defendant of a summons to appear and answer; and all the provisions applicable to such summons, and to proceedings with reference to the service thereof, shall apply to the service of such notice.” Thereby Sub-Rule (1) of R. 14 of Order 41, C.P.C. mandates to service the notice on the respondent through the court below unless it is excluded by operation of Sub-Rule (4) of Rule 14, of Order 41, C.P.C. As stated earlier Sub-Rule (4) is used to the incidental proceedings viz. interlocutory orders but not in the main appeal. 18. interlocutory orders but not in the main appeal. 18. The Hon'ble Supreme Court of India in Para No. 9 of its judgment in Ram Lal Kapur and Sons (P) Ltd. vs. Ram Nath and Others, AIR 1963 SC 1060 held as under: Nevertheless, we consider that we should add that, except in very rare cases, if not invariably, it should be proper that this Court should adopt as a settled rule that the delay in making an application for special leave should not be condoned ex-parte but that before granting leave in such cases notice should be served on the respondent and the latter afforded an opportunity to resist the grant 'of the leave. Such a course besides being just, would be preferable to having to decide applications for revoking leave on the ground that the delay in making the, same was improperly condoned years after the grant of the leave when the Court naturally feels embarrassed by the injustice which would be caused to the appellant if leave were then revoked when he would be deprived of the opportunity of pursuing other remedies if leave had been refused earlier. We would suggest that the rules of the Court should be amended suitably to achieve this purpose. 19. The next point to be considered is, admittedly, the Court below passed impugned order without assigning any reasons. On perusal of the impugned order, this Court is of the opinion that by a cryptic order, the Lower Appellate Court allowed the interlocutory application placing reliance on a wrong provision of law. As such, the approach of the Lower Appellate Court itself is perverse. 20. In Bolla V.K. Radha Krishna vs. Viswanadha Venkata Subbaiah, 2002 (5) ALT 355 while allowing the Civil Revision Petition which was filed against the order in interlocutory application passed without issuing notice to the respondents and without assigning any reason, the Court observed as under: The learned Judge passed such an order resulting in far reaching consequences without assigning any reason whatsoever. It is rather surprising and shocking to realise that a judicial officer at the level of Senior Civil Judge could pass such an order without assigning any reason whatsoever. A judicial order not supported by any reason is a nullity. The learned Judge did not even refer to the facts requiring adjudication. It is rather surprising and shocking to realise that a judicial officer at the level of Senior Civil Judge could pass such an order without assigning any reason whatsoever. A judicial order not supported by any reason is a nullity. The learned Judge did not even refer to the facts requiring adjudication. This Court is constrained to express its unhappiness for the manner in which the learned Judge disposed of the application. 21. In the opinion of this Court, the observation of this Court in Bolla V.K. Radha Krishna's case (3rd supra) squarely applicable to the present case also as the officer at the level of the Principal District Judge passed such a perverse order. 22. In view of the above, the order impugned in the present Civil Revision Petition is unsustainable in the eye of law and liable to be set aside. 23. Accordingly, the Civil Revision Petition is allowed and the impugned order is set aside. Consequently, I.A. No. 1646 of 2017 in A.S.S.R. No. 13747 of 2017 (Subsequently numbered as A.S. No. 62 of 2017) on the file of the Principal District Judge, Kadapa, Y.S.R. District shall stand restored to its original file for disposal accordance with law. The Principal District Judge, Kadapa, Y.S.R. District now hear the I.A. No. 1646 of 2017 and dispose of the same on merits in accordance with law, within a period of eight (08) weeks from the date of receipt of copy of this order. There is no order as to costs. 24. As a sequel, miscellaneous petitions, if any, pending in this petition shall stand closed.