Rajasthan High Court - Jaipur
Dilip Bhai Gajrota And Ors. vs Contractor Lime Gotan on 31 October, 1995
Equivalent citations: AIR1996RAJ119, 1996(1)WLC1
Author: V.G. Palshikar
Bench: V.G. Palshikar
JUDGMENT V.G. Palshikar, J.
1. While considering First Appeal No. 493/91, Hon'ble Mr. Justice N. K. Jain noted two Division Bench judgments of this Court apparently taking conflicting views in regard to the provisions of Order 41, Rule 3-A of the Civil Procedure Code and Rules 132 and 134 of the Rajasthan High Court Rules, 1952. He, therefore, placed the matter for appropriate orders before the Division Bench.
2. The Division Bench consisting of Hon'ble Mr. Justice K. C. Agrawal, the then Chief Justice and Hon'ble Mr. Justice A. K. Mathur, again considered the relevant provisions of law and came to a conclusion that the decision holding these provisions of law as directory, was preferable to the decision holding the provisions to be mandatory. However, in view of the settled position of law of precedence, the matter was placed before a Full Bench, referring the following questions for opinion of the Full Bench :--
" 1. Whether, in view of Rules 132 and 134, a time barred appeal when filed, must accompany along with memo of appeal, an application under Section 5 of the Limitation Act, 1963 along with affidavit or condonation application can be filed later on, if so, what is the effect of the relevant rules ?
2. Whether the provisions of Order 41, Rule 3-A, C.P.C. is mandatory and the application under Section 5 of the Limitation Act, 1963 for the condonation of the delay in filing afterwards ?"
3. We have heard Mr. A. L. Chopra, Advocate, Mr. B. L. Purohit, Advocate, for the appellants and Mr. Kailash Joshi for the respondents.
4. Undisputed facts necessary for answering the question referred for opinion are very few. In all these appeals, the appeals were presented prima facie after the period of limitation for the presentation of the appeal had expired. At the time of presentation, the appeals were, not accompanied by an application under Section 5 of the Indian Limitation Act duly supported by an affidavit. The provisions of Rajasthan High Court Rule, 1952, as also Order 41, Rule 3-A of the Code of Civil Procedure, require filing of such an application along with the presentation of the appeal. Hence, these appeals were considered defective.
5. When the matter came up for consideration before the learned single Judge of this Court, he made an order on 17th February, 1992, noting an apparent conflict in two decisions rendered by two decision Benches of this Court, one a Reported decision in The State of Rajasthan v. Vijay Singh, (1987 RLR (2) 867) and the other an Un-reported decision in D. B. Special Appeal (Defect) No. 1125 of 1990 rendered on 1-4-1991 in the case of State v. Navratan. The learned Judge, having noted the difference, placed the matter before a Division Bench for appropriate orders. The matter was taken up by a Division Bench of this Court presided over by the then Chief Justice Mr. K. C. Agrawal. The Division Bench noted the conflict of decisions, considered the revelant provisions of law and came to a conclusion that the provisions were not mandatory in nature but in view of the fact that the conflicting decisions were rendered by a Division Bench of concurrent jurisdiction, placed the matter before a Full Bench for authoritative opinion. It was observed by the learned Judges in the referring (sic) that the view that the provisions are not mandatory is preferable and adequate reasons have been given for indicating this preference. It is in this background that we have to consider the above referred two questions.
6. An appeal is a judicial remedy provided by a statute for reconsideration of a decision rendered in a judicial remedy for redressal of a grievance. It is a safeguard against incorrect, improper, mala fide or illegal decision in that remedy. Webster's Third New International Dictionary defines an 'appeal' to mean a legal proceeding by which a case is brought from a lower to a higher Court for rehearing. This very Dictionary defines 'hearing' to mean actively or carefully listening to a speaker. It means, opportunity to be heard or to present one's side of a case. An appeal, therefore, means actively or carefully listening to the grievance of the appellants in regard to the decision rendered by a Subordinate Tribunal on rehearing. Of necessity it, therefore, postulates rehearing of a grievance on merits of that grievance. If this aspect is considered to be the basic definition of an appeal, normally an appeal will have to be heard on its own merits. Breach Of technical procedural requirement cannot override the basic requirement of rehearing of a grievance by a higher authority. A perusal of the decisions rendered by several other High Courts lend total support to this aspect. We, therefore, intend to examine the provisions of Order 41, Rule 3-A of the Civil Procedure Code and Rules 132 and 134 of the Rajasthan High Court Rules, 1952 in this light.,
7. The provisions of Order 41, Rule 3-A require to be noticed verbatim. -
Order 41, Rule 3-A -- 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.
(2) The Court sees no reason to (sic) the application without the issue of a police to the respondent, notice thereof (sic) be issued to the respondent and the major 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.
8. Similar rules existed in Rajasthan High Court Rules, 1952 in relation to an appeal or a Special Appeal. They read as under :--
Rule 132 -- Documents to accompany memorandum of appeal or revision application, -- Every memorandum of appeal or application for revision shall be accompanied by:--
(a) a copy of the decree or formal order against which the appeal or application is directed:
(b) a copy of the judgment upon which such decree or formal order is founded,
(c) a copy of the judgment of the Court of first instance were the appeal or application is directed against an appellate decree or order;
(d) in the case of a memorandum of appeal which is filed after the expiry of the period of limitation, an application supported by an affidavit for extension of the period of limitation under Section 5 of the Indian Limitation Act, 1963 :
Provided that if the copies of the judgments referred to above are hand-written, they shall further be accompanied by uncertified typed copies :
Provided that the Court may for sufficient cause shown dispense with a copy of the formal order under Clause (a) or a copy of the judgment under Clause (b) or (c).
Rule 134 -- Special Appeal, -- A person desiring to prefer a Special Appeal from the judgment of a single Judge shall present a duly stamped memorandum of appeal within thirty days from the date of such judgment. Where such appeal is presented after the period mentioned above, it shall be accompanied by an application supported by an affidavit explaining the cause of delay and it shall be rejected unless the appellant satisfies the Court that he had sufficient cause for not preferring the appeal within the aforesaid time.
The memorandum of appeal shall be drawn up in accordance with Rules 125, 130 and 131 of this Chapter and shall be accompanied by a certified copy of the judgment or order appealed from along with two extra typed copies of the judgment or order."
9. A perusal of these provisions of law quoted above, therefore, lay down a procedure in accordance with which an appeal or a special appeal shall be presented before the High Court of Rajasthan. It only prescribed the manner in which an appeal shall be presented. Wherever prima facie it is found that an appeal is presented after the period of limitation, according to the appellate he should file an application for condo(sic) of delay under Section 5 of the Indian Limitation Act, along with the appeal. This very provision, therefore, postulates existence of a situation where according to the appellant it is bona fide believed that the appeal is within limitation. What has been ordained by Order 41, Rule 3-A of the Code of Civil Procedure, is that the question regarding limitation of an appeal shall be decided first, before proceeding upon adjudication of the dispute raised in an appeal, in order to obviate unnecessary delay in the matter of appeal.
10. The object of inserting Rule 3-A (1) in Order 41 was to put an end to the practice of admitting of appeal subject to the decision on the question of limitation. This practice was disapproved by the Privy Council and it stressed the expediency of adopting a procedure under which the final determination of the question as to limitation would be possible before admission of the appeal. Therefore, with a view to see that the question of limitation does not remain lingering, the provision of Rule 3-A in Order 41 has been inserted.
11. In our opinion, same is the object of Rules 132 and 134 of the Rajasthan High Court Ordinance. What we have to consider, in such circumstances, is the question whether a strict compliance with these procedural requirements, at the cost of substantial justice, is the intent of the Legislature in legislating these provisions. In our opinion, and as will be seen from the opinion, of the several other High Courts, such was never the intent of the Legislature. It was meant solely to expedite the decision of the appeal on merits by first requiring adjudication of the question of delay in filing the appeal.
12. We will notice the decisions of the several other High Courts in regard to the provisions of the Civil Procedure Code. In AIR 1980 Kerala 170, Hon'ble Mr. Justice Khalid took the view that in rare cases an application to excuse delay in filing the appeal can be filed after the appeal is presented. However, the learned Judge observed this while considering the Division Bench judgment of the Kerala High Court reported in 1963 Ker LT 455 and expressed his misgivings about the principle of law. This decision was rendered by the learned Judge on 19-11-1979. On 20-2-1980 the learned Judge decided the case Padmavathi v. Kalu, (AIR 1980 Ker 173) and took a view that the provisions of Order 41, Rule 3-A are mandatory in nature and an appeal unaccompanied by an application for condonation of delay, where prima facie it is delayed, is liable to be dismissed. The learned Judge found his earlier observations per in-curiam, as he had not noticed the provisions of Order 41, Rule 3-A of the Civil Procedure Code. Reliance was placed on this decision for the proposition that the provisions of the Civil Procedure Cede are mandatory in nature.
13. Similar view was taken by a learned single Judge of the Karnataka High Court which is reported in AIR 1984 Kant 40. The learned Judge held that the provision is mandatory because it was incorporated by an amendment of the Civil Procedure Code in 1976. However, with deepest respect to the learned Judge, no reasons have been given for holding that the provisions are mandatory. But reliance was placed on the decision of the Kerala High Court reported in AIR 1980 Ker 173.
14. Both the High Courts, Kerala and Karnataka had again the occasion to consider the provisions of Order 41, Rule 3-A of the Civil Procedure Code and a Division Bench of the Kerala High Court held in Maya Devi v. M. K. Krishna Bhattathiri (AIR 1981 Ker 240) that the provisions of Order 41, Rule 3-A are not madatory in nature. The decision reported in AIR 1980 Ker 173 was overruled. The Division Bench of the Kerala High Court has observed thus :--
"Rule 3-A of Order 41, is intended only to emphasize that if an appeal Mad been filed out of time before the appeal is taken up for consideration the question of delay must be considered before any other order is passed in the appeal. It is to achieve this object that the Rule provides that the appeal should be accompanied by a petition to excuse the delay. If the petition to excuse delay is filed as a consequence of the direction of the Court to cure the defect, when the defect is cured there is a valid presentation of the appeal."
15. A Division Bench of the Karnataka High Court in State of Karnataka v. Nagappa (AIR 1986 Kant 199), referring to the provisions of Rule 3-A of the Order 41 of the Civil Procedure Code, held that the rule is mandatory in the sense that the appellant cannot, without such application being decided, insist upon the Court to hear the time-barred appeal but held the rule to be not mandatory in so far as it require the appeal to be accompanied by an application for condonation of delay. It was held by the Karnataka High Court that opportunity to remedy the defect caused by non-filing of the application along with the appeal, should be allowed at a later stage. The decision of the learned single Judge reported in AIR 1984 Kant 40 was, to that extent, overruled. The judgment of the Court was delivered by HonTsle Mr. Justice Venkatachala of the Karnataka High Court (as he then was) and the Division Bench observed thus:
"A combined reading of Rule 3-A (1) and (2) makes it manifest that the purpose of requiring the filing of an application for condonation of delay under Rule 3-A (1) along with the time-barred appeal is mandatory in the sense that the appellant cannot without such application being decided insist upon the Court to hear his time-barred appeal. That was the very purpose sought to be achieved by the insertion of Rule 3-A(1) and (2) becomes clear from the legislative history of Rule 3-A. No penalty of rejection or dismissal of a time-barred appeal for non-compliance of the requirement of Rule 3-A(1) is envisaged therein. Thus when Rule 3-A(1) neither expressly nor contextually indicates that its non-compliance should as a penalty entail dismissal of the time-barred appeal, its operation cannot be regarded as bringing about impliedly such drastic result. Rule 3-A(1) being procedural is intended to and in the administration of justice and cannot be construed as implying the award of a severe penalty for its non-compliance. A Court before whom a time-barred appeal comes up for hearing with no application along with it under Section 5, Limitation Act for condonation of delay has to necessarily dismiss it not because of non-compliance with Rule 3-A(1) but because of the operation of Section 3 of that Act. Therefore, what a Court should do when a time-barred appeal is presented before it without being accompanied by an application for condonation of delay is to regard such presentation as defective for non-compliance of Rule 3-A(1) and to afford to the appellant a reasonable opportunity to remedy the defect instead of dismissing the appeal outright or in limine. If the appellant disregards the opportunity afforded, the Court should dismiss the appeal. When the defect is remedied within the time allowed by the Court the appeal should be-regarded as one properly presented as on the date of its original presentation in that remedying of such procedural defect necessarily relates back to the date of original presentation of the appeal."
16. In Patna High Court also the question regarding the mandatory nature of the provisions of Order 41, Rule 3-A of the Civil Procedure Code was referred for adjudication to a Division Bench and the Division Bench came to a conclusion that the provisions are not mandatory. The Division Bench in AIR 1983 Pat 189 observed as under:--
"Whether a provision is mandatory or directory is to be tested with regard to the fact whether that provision provides sanction for not complying with the direction. Rule 3-A of Order 41 of the Code does not lay down that if the appeal filed beyond time, is not accompanied by an application under Section 5 of the Limitation Act the Court shall reject it. Therefore, it can be held that the provisions of Rule 3-A of the Code are not mandatory."
And it was, thereafter, observed -
"The filing of limitation petition is entirely different from the filing of an appeal. For proper presentation of appeal all that is needed is that the memorandum of appeal accompanied by a copy of the judgment and of the decree as provided in Rule 1 of Order 41 of the Code. The ambit of Rule 1 cannot be enlarged and has not been enlarged, by Rule 3-A of the Code."
17. Similar is the view taken by the Bombay High Court and is reported in AIR 1984 Bom 390. It was observed by the Bombay High Court that the obvious object of making such a provision is to see that the appeal will not be heard unless delay in the filing of the appeal is condoned. The following observations of the Bombay High Court, in our opinion, very ably; illustrate the contingencies in which an appeal cannot be accompanied by an application for condonation of delay:--
"Despite the apparently peremptory language of Rule 3-A of Order 41 of the Code the appeal preferred after the expiry of period of limitation cannot be dismissed summarily on the ground that the application for condonation of delay does not accompany the memo of appeal. The obvious object of making such a provision is to see that the appeal will not be heard unless delay in the filing of the said appeal is condoned after proper notice to the respondent. This is evident from the provisions contained in Sub-rule (2) of Order 41, Rule 3-A of the Code. This sub-rule provides that where the Court does not reject the application for condonation of delay summarily notice of the said application should be issued to the respondent and it is only after the said application is finally decided that the Court can proceed to dismiss or admit the appeal under the provisions of Rule 11 or Rule 13 respectively of Order 41 of the Code, This must be so because several times it might be the case of the appellant that there is no delay at all and in such a case after examination of the papers if the office of the appeal Court finds that there is delay; then an application for condonation of delay may legitimately be presented by the appellant. A proper construction of the procedural: rule like this must take into account contingency such as this."
18. Similar view is taken by the Orissa High Court in AIR 1986 Ori 38. It is held that provisions of Order 41, Rule 3-A are not mandatory. The Calcutta High Court has also held that the Court has jurisdiction to condone delay of an application presented subsequently to the presentation of the appeal and the provisions of Order 41, Rule 3-A have been held not mandatory. This decision is reported in AIR 1988 Cal 28.
19. Another important judgment which considers the provisions of Order 41, Rule 3-A in all its perspective and elaborately deals with all the aspects of legislation with provision of law, is one rendered by Hon'ble the Chief Justice Shri A. P. Ravani, when he was Judge of the Gujarat High Court. It is reported in AIR 1987 Guj 205. On a careful consideration of the case law on, the point and the aims and objects of amending the Civil Procedure Code extensively in 1976, it was observed :--
"The object of inserting Rule 3-A(1) in Order 41 was to put an end to the practice of admitting of appeal subject to the decision on the question of limitation. This practice was disapproved by the Privy Council and it stressed the expediency of adopting a procedure under which the final determination of the question as to limitation would be possible before admission of the appeal. Therefore, with a view to see that the question of limitation does not remain lingering, the provision of Rule 3-A in Order 41 has been inserted."
20. It is also observed that the provisions are procedural in nature and cannot, therefore, override the requirement of rendering substantial justice. It is then observed by the learned Judge :--
"The provisions contained in Order 41, Rule 3-A of the code is in the realm of procedure. The procedural law as far as possible cannot and should not be interpreted in such a way so as to take away the rights of the parties. Unless there is compulsion, the procedural law should be read so as to advance the cause of justice and should not be strictly construed so that the vested rights of the parties to get a matter adjudicated on merits are frustrated: In the instant case, if strict adherence to the provisions of Rule 3-A is insisted upon, it is likely to result into immense hardship, inconvenience and in many cases, it will surely lead to miscarriage of justice. The surest test for determination as to whether the provision is mandatory or directory is to see as to whether the sanction is provided therein. If one looks at the provision of Order41, Rule 3-A it is clear that there is no such sanction provided in the rule itself. In this view of the matter, the provision has got to be construed as directory. AIR 1980 Ker 173 and AIR 1984 Kant 40, Dissented from. AIR 1983 Pat 189, Rel. on.
Assuming that an appeal when presented beyond the period of limitation, is required to be accompanied by an application for condonation of delay and no such application is filed at the time of presentation of appeal, then there is no provision in the rule that such an appeal is required to be straightway dismissed. At the most, the appellant would be required to explain the delay till the date of filing of the application.
21. The decisions of the Karnataka and Kerala High Courts overruling the decisions noted by the learned Judge were not pointed out to the learned Judge and hence a dissent was recorded. It will, thus, be seen that the majority of the High Courts have held the provisions of Order 41 Rule 3-A to be directory. The view taken by this Court was also not different. It is reported in RLR 1987 (II) 867.
A Division Bench of this Court considered the provisions of Order 41, Rule 3-A along with the provisions of Rules 132 and 134 of the High Court Rules of 1952 and held that neither the rubs nor the provisions of the Civil Procedure Code are mandatory in nature. However, this Division Bench judgment was not brought to the notice of another Bench deciding D, B. Special Appeal No. 1125/90 on 1-4-1991. A perusal of that decision will show that the matter was not argued in extenso and only a request was made in passing that the provisions are directory. Rejecting the request, it was held that they are mandatory. The Division Bench judgment of this Court reported in RLR 1987 (II) 867 was not brought to the notice of the Division Bench, nor the several other decisions of the other High Courts, noted above, were placed for consideration before the learned Judges of the Division Bench and hence a contradictory view has been taken in that order.
22. On a careful consideration of all these decisions and the provisions of law, we are of the view that Order 41, Rule 3-A was inserted by an amendment and the sole object of the amendment was as observed by the Hon'ble Chief Justice in AIR 1987 Guj 205, to put an end to the practice of admitting an appeal subject to the decision on the question of limitation. That being the sole object, to hold that the provisions are mandatory though procedural in nature, would be to permit injustice being caused for compliance of a procedural requirement. An appeal, as observed above, is a proceeding to bring to a H igher Court a decision for redressal of grievance against that decision. Such being the intention of making an appeal available, the entire purpose of making ii available will be frustrated if it is required to be dismissed for non-compliance of the provisions of Order 41, Rule 3-A of the Civil Procedure Code or Rules 132 and 134 of the Rajasthan High Court Rules. We are fortified in this view we are taking by several decisions of the High Courts noted above. We, therefore, answer the questions referred to us as under :--
(1) An appeal which is apparently barred by limitation can be filed without an application under section 5 of the Limitation Act, 1963 and the provisions of Rules 132 and 134 requiring filing of such application are directory in nature.
(2) The provisions of Order 41, Rule 3-A of the Code of Civil Procedure are not mandatory and, therefore, filing of an application under section 5 of the Limitation Act, 1963 for condonation of delay in filing the appeal at a later stage is permissible.
23. It is, therefore, our considered opinion that the provisions of Order 41, Rule 3-A of the Civil Procedure Code and Rules 132 and 134 of the Rajasthan High Court Rules, 1952 are directory in nature. The decision dated 1-4-1991 in D. B. Special Appeal (Defect) No. 1125/90, State v. Nav Ratan is not approved as laying down the correct law and the decision reported in RLR 1987 (II) 867, State of Rajasthan v. Vijay Singh etc. is affirmed. The consequence of this opinion, obviously, is that an appeal can be presented unaccompanied by an application under Section 5 of the Indian Limitation Act, 1963. In such cases, non-filing of such an application would, therefore, necessarily result in the appeal being shown as defective and no orders on the merits, either of interlocutory nature or otherwise, can be solicited till the defect is removed. The Registry shall, in all such cases, show the matter as defective for non-compliance of the provisions of Order 41, Rule 3-A and or Rules 132 and 134 of the Rajasthan High Court Rules, 1952 as the case may be and shall require removal of the defect within reasonable time as provided by the Rajasthan High Court Rules, 1952.
24. The questions having been answered accordingly, the appeals be placed before the appropriate Bench for decision on the application, under section 5 of the Limitation Act, for condonation of delay in accordance with law.