Gujarat High Court
Bharat vs M/S on 9 March, 2012
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
Gujarat High Court Case Information System
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CA/8518/2011 11/ 11 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION NO. 8518 OF 2011
In
SECOND
APPEAL (STAMP NUMBER) NO. 36 OF 2010
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BHARAT
PETROLEUM CORPORATION LTD
Versus
M/S
MAYUR DHANADAL & ORS.
=========================================================
Appearance
:
MR
MIHIR THAKORE, SR. COUNSEL with MS MINU SHAH and G.M. SHAH for
Petitioner.
RULE SERVED for Respondent(s) : 1 - 3.
None for
Respondent(s) : 3,
MR SURESH M SHAH with MR MEHUL S SHAH for
Respondent(s) : 3.2.1
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CORAM
:
HONOURABLE
THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA
and
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
and
HONOURABLE
MS JUSTICE SONIA GOKANI
Date
: 09/03/2012
CAV
ORDER
(Per : HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA) This matter has been referred to this Bench at the instance of a learned Single Judge of this Court while hearing an application for condonation of delay in filing a Second Appeal. At the time of hearing of such application for condonation of delay, the respondent took a preliminary objection that such an application for condonation of delay could not be considered on merits. According to the respondent, as the memorandum of the second appeal was not accompanied by the said application for condonation of delay but was subsequently filed after the office drew the attention of the appellant that the appeal was barred by limitation, the same was not maintainable being violative of the mandatory provision contained in Order 41 Rule 3A of the Code of Civil Procedure.
In such a situation, the learned Single Judge referred the matter for constitution of a larger Bench to answer the following question:
"Whether in view of the provisions of sub-rule (1) of rule 3A of Order XLI of the Code of Civil Procedure, 1908, if an appeal is presented after the expiry of the period of limitation specified therefor without any accompanying application to condone delay, the consequence would be fatal?"
Mr. Thakore, the learned Senior Advocate appearing on behalf of the applicant, submits that the above question has already been answered by a two-judge-bench of the Supreme Court in the case of STATE OF M.P. AND ANOTHER vs. PRADEEP KUMAR AND ANOTHER reported in (2000) 7 SCC 372 in negative and in favour of his client. Mr. Thakore submits that although a Division Bench of this Court has taken a contrary view in the case of PASCHIM GUJARAT VIJ COMPANY LTD., THROUGH DEPUTY ENGINEER, JAMKHAMBHALIA v. KHEMCHAND NATHABHAI GADHVI reported in 2011 (3) GLR 1867, the attention of the said Division Bench was not drawn to the above decision of the Supreme Court which is existing in field. Mr. Thakore, therefore, prays for answering the question in the negative by following the decision of the Supreme Court in the case of STATE OF M.P. AND ANOTHER [supra].
Mr. Shah, the learned counsel appearing on behalf of the respondents, on the other hand, opposed the aforesaid contention of Mr. Thakore and has submitted that the decision of the Supreme Court in the case of STATE OF M.P. AND ANOTHER [supra] does not lay down the correct proposition of law and the correct proposition of law has been laid down in a subsequent decision of a two-judge-bench of the Supreme Court in the case of NOHARLAL VERMA vs. DISTRICT CO-OPERATIVE CENTRAL BANK LTD., JAGDALPUR reported in 2008 (14) SCC 445.
According to Mr. Shah, we should, instead of following the decision of the Supreme Court in the case of STATE OF M.P. AND ANOTHER [supra], follow the one laid down in the case of NOHARLAL VERMA [supra].
After hearing the learned counsel for the parties and after going through the materials on record, we find that the provisions contained in Order 41 Rule 3A of the Civil Procedure Code [Code, for short hereafter], with which we are concerned in the present case, was specifically dealt with by the Supreme Court in the case of STATE OF M.P. AND ANOTHER [supra], and in that context, the Supreme Court made the following observations:
"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. 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.
11. 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 xxx xxx xxx
19. The object of enacting Rule 3-A in Order 41 of the Code seems to be two- fold. 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 3-A of Order 41 of the Code."
In view of the above decision of the Supreme Court, it is apparent that the decision of the Division Bench of this Court in the case of PASCHIM GUJARAT VIJ COMPANY LTD [supra] does not lay down the correct proposition of law, and at the same time, it appears that the attention of their Lordships was not drawn to the decision of the Supreme Court in the case of STATE OF M.P. AND ANOTHER [supra].
In the case of NOHARLAL VERMA [supra], the appellant before the Supreme Court was working as a Manager in the Large Area Multi-Purpose Society. At that time, he committed financial irregularities, as a result, disciplinary proceedings were initiated against him and by order dated April 29, 1982 passed by the Chairman, District Co-operative Central Bank Ltd., Jagdalpur (Bastar), he was removed from service.
The appellant preferred a Departmental Appeal on April 30, 1982. Since he had not been communicated anything as to what had happened to the said appeal, the appellant on June 30, 1982 filed an application under section 55 of the Madhya Pradesh Cooperative Societies Act, 1960 to the Joint Registrar, Co-operative Societies, Raipur. According to the appellant, the application was made to the Joint Registrar, Raipur as District Bastar/Jagdalpur was within the territorial jurisdiction of Raipur. However, a joint Registrar then came to be appointed for District Bastar for Jagalpur area. Another application was, therefore, made on October 8, 1985 by the appellant before the Joint Registrar, Co-operative Societies, Jagdalpur.
On February 19, 1986, the Joint Registrar, Jagaldalpur dismissed the application filed by the applicant as time-barred. The appellant preferred an appeal against the said order before the Board of Revenue, Gwalior but the said appeal was also dismissed by the Board on June 14, 1990.
On October 22, 1990, the application filed by the petitioner on June 30, 1982 before the Joint Registrar, Raipur was forwarded to the Deputy Registrar, Kanker for adjudication. The Deputy Registrar, Kanker, treated the case as one filed within the period of limitation, considered it on merit, set aside the order of removal and directed the Bank to pay all dues to the applicant, vide his order dated May 18, 1994.
The respondent Bank challenged the said order by approaching the State Co-Operative Tribunal. The Tribunal allowed the appeal filed by the Bank on the ground of res judicata observing that the earlier application filed by the appellant was dismissed by the Joint Registrar, Jagadalpur, and the said order was confirmed by the Board of Revenue, Gwalior, dismissing the appeal which had become final.
Being aggrieved by the order passed by the Tribunal, the appellant preferred writ-petition before the High Court of Chhatisgarh, which was dismissed by the High Court and thus, the mater went to the Supreme Court.
In such an appeal before the Supreme Court, it was pointed out by the appellant that the learned counsel appearing on behalf of the Bank conceded that the application filed by the appellant was within time and hence, the Registrar took up for consideration the said application and decided on merits. According to the appellant, it was, therefore, not open to the Bank to contend that the application was barred by limitation and consequently, the order passed by the High Court was liable to be set aside.
While considering such a question, the Supreme Court, by referring to the provisions of section 3 of the Limitation Act, 1963 held that if a suit, appeal or application is barred by limitation, a Court or an adjudicating authority has no jurisdiction, power or authority to entertain such suit, appeal or application and decide the same on merits. The Supreme Court further held that in such a case, even though no such plea had been raised or defence had been set up, it was the duty of the Court or the authority to dismiss such application, appeal or suit as barred by limitation.
We fail to appreciate how the said decision can have any application for dealing with the question as to whether an application for condonation of delay preferred subsequent to the filing of the appeal can be entertained on merits within the scope of Order 41 Rule 3A of the Code.
We. therefore, find that in the subsequent decision of the Supreme Court in the case of NOHARLAL VERMA [supra], it had no occasion to consider the effect of Order 41 Rule 3A of the Code or the question with which we are concerned.
At this stage, we may profitably refer to the provisions contained in Rule 67 of the Gujarat High Court Rules dealing with the procedure in regard to office objection as to limitation, which are quoted below:-
"67. Procedure in regard to office objection as to limitation.-
(i). When an appeal, application or memorandum of cross-objection is presented after the expiry of the period of limitation specified therefore, shall be accompanied by separate application for condonation of delay.
(ii). If objection is raised by the office to the registration of an appeal or application or memorandum of cross-objections on the ground of its being beyond time, a separate regular stamped application for excusing delay in presenting the same shall be made within 15 days from the date of the notice under Clause (a) or as the case may, clause (b) of sub-rule
(iii) of Rule 66 above, or where the duplicate of the office objections has been delivered to the part in person under clause (b) of the said sub-rule (iii) from the date of receipt thereof by him, failing which the office shall place the matter before the court for orders not later than a week after the expiry of period prescribed under sub-rule (iv) (a) of Rule 65.
(iii). Notwithstanding that the objection as to delay in filing the matter has not been finally decided, the party or Advocate shall be required to remove all other objections within the time specified in sub-rule (iii) of rule 65.
(iv). If no application for excuse of delay or note for revision of the Registrar's order is filed within15 days from the date of order of the court under sub-rule (iii), the matter shall without any delay, be placed for orders before the Registrar and the Registrar shall pass orders refusing to register the matter.
(v). When an application for excusing delay is made under any of the provisions of this Rule, the Appeal or application shall be registered provided no other objection survives.
It appears that the aforesaid Rule specifically permits filing of the application for condonation of delay even subsequent to filing of the memorandum of appeal, and the said Rule is quite consistent with the decision of the Supreme Court in the case of STATE OF M.P. AND ANOTHER [supra].
Over and above, in our view, once this High Court in exercise of power conferred under Section 122 of the Code has enacted Rule 67 permitting entertainment of the application for condonation of delay filed even subsequent to filing of the memorandum of appeal, the provisions contained in Rule 67 will have overriding effect on Order 41 Rule 3A of the Code even if we do not take into consideration the above decision of the Supreme Court in the case of State of M. P. and another (supra) because the aforesaid provision of the Code is appearing not in the body of the Code but in the first schedule of the same.
For the purpose of appreciating the question, we quote below the provision of Section 122 of the Code:
"122.
Power of certain High Courts to make rules High Courts not being the Court of a Judicial Commissioner may, from time to time after previous publication, make rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence, and may by such rules annul, alter or add to all or any of the rules in the First Schedule."
(Emphasis supplied by us).
It is now a settled law that the body of the Code (Section 1 to Section 158) is somewhat inflexible inasmuch as the same cannot be altered except by amendment by the Legislature but the rules concerning with the details and machinery for implementing the various provisions of the Code require greater flexibility and necessarily, they should be easily altered. Precisely for the said purpose, the High Courts have been empowered under Section122 to bring suitable amendments to various rules under the Orders contained in the first schedule of the Code. Such Orders and rules basically relate to the procedural matters and they get sustenance from the Sections appearing in the body of the Code.
Thus, in the body of the Code, there being no provision directing filing of simultaneous application for condonation of delay along with memorandum of appeal and such provision being incorporated in the first schedule of the Code, so far as this High Court is concerned, in view of Rule 67 quoted above specifically permitting filing of subsequent application, there is no scope of any argument that a subsequent application for condonation of delay is not maintainable even if the decision of the Supreme Court in the case of State of M. P and another (supra) was not in existence.
On consideration of the entire materials on record, we, thus, answer the question referred to by the learned Single in the negative by following not only the decision of the Supreme Court in the case of STATE OF M.P. AND ANOTHER [supra] but also independently by relying upon Rule 67 of the Gujarat High Court Rules alone. We further hold that the decision of the Division Bench of this Court in the case of PASCHIM GUJARAT VIJ COMPANY LTD [supra] does not lay down the correct proposition of law.
We, accordingly, refer the matter back to the learned Single Judge for deciding the application for condonation of delay on merit.
[BHASKAR BHATTACHARYA, ACTING C.J.] [J.B.PARDIWALA.
J.] [MS SONIA GOKANI, J.] mathew Top