Delhi High Court
R.C. Chaudhary vs M/S. Prestige Finance And Chit Fund Co. ... on 3 July, 1996
Equivalent citations: AIR1996DELHI382, AIR 1996 DELHI 382, (1997) 1 CIVILCOURTC 698, (1997) 1 ARBILR 146, (1997) 1 CIVLJ 760, (1997) 3 LJR 382
Author: S.N. Kapoor
Bench: S.N. Kapoor
ORDER
1. A question: "whether for condensation of delay in filing an appeal, any application in writing accompanied by affidavit is essential?", is required to be answered in these five revision petitions relating to the above said same parties.
2. These five revisions arose out of a common judgment dt. 4th Aug., 1984 dismissing five appeals on the ground that the appeals were barred by time in view of the provisions of 0.41, R. 3-A, C.F.C. '
3. First the facts in brief giving rise to the present revision petitions which are as under: Five petitions under Ss. 14 and 17, Arbitration Act were instituted on 20th Nov., 1979. Objections were filed. After hearing the parties, objections filed by the petitioner were dismissed and awards were made rule of the Court by five judgments dt. 7th Jan., 1984.
4. The appellant applied for certified copies of judgments in five cases on 13th Jan., 1984. The copies in appeals Nos. 25,26 and 28 of 84 were delivered on 19th Mar., 1984, copy in appeal No. 24/84 was delivered on 20th Mar.. 1984, and in appeal No. 27, on 24th Mar., 1984. All the appeals were filed in the Court of Senior Sub-Judge on 3rd Apr., 1984. It is apparent that appeals Nos. 25, 26 and 28 of 1984 were filed before Senior Sub-Judge within 21 days, appeal No. 24 of 1984 within 20 days, and appeal No. 27 of 1984 within 16 clays, after excluding the time spent in obtaining certified copies. On 23rd Apr., 1984, the appeals were returned under orders of Additional Senior Sub-Judge Shri R. C. Chopra. On the same date, all these five appeals were filed again in the Court of District Judge. The limitation for filing the appeals in RCA 25, 26 and 28 of 1984 expired on 12-4-84 after excluding the period spent in obtaining the certified copy In appeal RCA 24/84, the limitation expired on 13-4-1984 and in RCA 27/84, the limitation expired on 17th Apr., 1984. So, when the appeals were filed before the learned District Judge, the appeals had already admittedly become time-barred as under item 116 of the Schedule of the Limitation Act, the appeals under the Civil P. C. 1908 were to be filed before the District Court within 30 days from the date of decree or order excluding, of course, the time spent in obtaining copy.
5. Grievance of the revision petitioner is that rigid rule of moving application for condensation of delay should not have been applied in view of the settled law that the technical rules are made to promote the cause of justice. Delay should have been condoned particularly in view of the observation in the impugned judgment that the objection under S. 33 could not have been dismissed as time barred and the learned sub-judge was duty bound to have decided these objections on merits. There was no need of written application and even oral prayer could be allowed. In view of Ms. Nirmala Chaudhary v. Bisheshwar Lal, , it was not at all necessary to file an application for condensation of delay. It was not even necessarily implied in law that the powers of the Court to condone the delay was circumscribed by an application being filed. The appellate Court wrongly applied provision of O. 41, R. 3-A. Thus everything revolves round the applicability of O. 41, R.3-Aof the Civil P. C.
6. As such, it would be appropriate to reproduce O.41, R. 3-A, CPC for proper appreciation. This rule reads as under:
"3A.(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) 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 he 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.
7. It is notable that seeing the language of the aforesaid provision, it is apparent that intention of the legislature in inserting R. 3A in O.41, C.P.C. was to make it mandatory to move an application for condensation of delay by using the phrase "it shall be accompanied by affidavit". Sub-rule (1) of R.3A, O. 41 makes it a condition precedent to move such an application and the appeal even for grant of interim relief of stay of execution of decree could not be entertained and no such relief could be granted "so long as the Court docs not, after hearing under sub-rule (11) "decides to hear the appeal". Consequently, an application for condensation of delay has to be moved along with appeal, otherwise the appeal must fail and insertion of R. 3-A appears to have been made with a view to ensure that the question of limitation is not left open to be decided in future. In the absence of such an application for condensation of delay under Ss. 5, 14 or otherwise, the appeal itself does not exist for all practical purposes.
8. I regret that I have not been able to persuade myself to follow Nirmal Choudhary (supra) relied upon by learned counsel for the revision petitioner, for the reason that newly inserted R. 3-A of O.41, C.P.C. was neither argued before the Court in that matter, nor considered by the Court. Consequently, ratio laid down in Nirmal Choudhary's case is not applicable to the facts of this case and appeal can not be entertained if it is beyond time and if it is not accompanied by an application for condensation of delay.
9. However, one of the contentions raised in the revision petition was that O.41. R.3A would' not apply to the appeals relating to Arbitration Act, It may be mentioned that S. 41(a) of the Arbitration Act provides that "subject to the provisions of this Act and of rules made thereunder (a) the provisions of the Civil P. C. of 1908 shall apply to all proceedings before the Court and to all appeals under this Act". In view of crystal clear provisions of S.41(a), it is not possible to accept that O. 41. R. 3-A which has been inserted in 1976 shall not be applicable to the appeal relating to arbitration matters. As such, this contention raised in these revision petitions must also fail.
10. In view of the above discussion, I do not find any force in these revision petitions. Accordingly. I dismiss these Civil Revisions Nos. 778 to 782 arising out of common judgment in Appeals Nos. 24 to 28 of 1984 decided by learned Additional District Judge, Delhi on 4th August, 1984. Let a copy of this judgment be placed on the files of CR Nos. 779, 780,781 and 782 of 1984 as they are also disposed of accordingly.
11. Let a copy of this judgment be sent along with the record of learned Appellate Court in each case for information.
12.Petition dismissed.