Gujarat High Court
Bharat vs M/S on 5 September, 2009
Author: Harsha Devani
Bench: Harsha Devani
CA/8518/2011 11/ 11 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR CONDONATION OF DELAY No. 8518 of 2011 In SECOND APPEAL (STAMP NUMBER) No. 36 of 2010 ========================================= BHARAT PETROLEUM CORPORATION LTD - Petitioner(s) Versus M/S MAYUR DHANADAL & 2 - Respondent(s) ========================================= Appearance : MR MIHIR THAKORE, SR. ADVOCATE with Ms MINU SHAH for MR GN SHAH for applicant RULE SERVED for Respondent(s) : 1 - 3. MR SURESH M SHAH for Respondent(s) : 3.2.1 ========================================= CORAM : HONOURABLE MS.JUSTICE HARSHA DEVANI Date : 13/01/2012 ORAL ORDER
By this application, the applicant seeks condonation of delay of 71 days caused in filing second appeal against judgement and decree dated 5.9.2009 passed by the learned Second Joint District Judge, Gondal in Regular Civil Appeal No.79 of 1995.
Mr. Mihir Thakore, learned Senior Advocate appearing with Ms. Minu Shah, learned advocate for the applicant invited attention to the averments made in the application for condonation of delay as well as the further affidavit filed by the applicant in support of the application, to submit that the delay of 71 days has been sufficiently explained. It was submitted that it is understood that in a Government Body, some amount of red-tapism exists. In the present case, before final sanction could be obtained for preferring the appeal, the file had to pass through three Departments, thereby occasioning some delay in preferring the appeal. It was submitted that there was no deliberate negligence on the part of the applicant, nor had the applicant ever given up the cause and as such, the delay is required to be condoned. In support of his submissions, the learned counsel placed reliance upon the decision of the Supreme Court in the case of State of Nagaland v. Lipok AO and others, (2005) 3 SCC 752, the decision of the Supreme Court in the case of Special Land Acquisition Officer. UK Project v. Mahaboob and another, (2009) 14 SCC 54 as well as the decision of this court in the case of State of Gujarat, through Commissioner of Commercial Tax v. M/s Rama Newsprint & Papers Ltd., 2011 (1) GLH 333.
Opposing the application, Mr. S. M. Shah, learned advocate for the respondents drew the attention of the Court to the fact that in the present case, the appeal has been preferred on 25.2.2010, whereas the present application for condonation of delay has been filed on 10.3.2010. Inviting the attention of the court to the provisions of rule 3A of Order XLI of the Code of Civil Procedure, 1908 (the Code), it was submitted that sub-rule (1) of the said rule mandates that 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. Thus, while filing the appeal, the same is required to be accompanied by the application for condonation of delay. In case of non-compliance of the mandatory provisions, the appeal itself would be required to be dismissed as time-barred and the application would not be maintainable. In support of his submission, the learned advocate placed reliance upon the decision of a Division Bench of this Court in the case of Paschim Gujarat Vij Company Ltd., through Deputy Engineer, Jamkhambhalia v. Khemchand Nathabhai Gadhavi, 2011 (3) GLR 1867, wherein the court has held that sub-rule (1) of rule 3A of Order XLI of the Code mandates that if a time-barred appeal is filed, it has to be accompanied by an application and affidavit for condonation of delay. In absence, the appeal is rendered incompetent and is liable to be dismissed. The rule is mandatory in nature and its non-compliance is fatal. Mr. Shah, accordingly, submitted that in the light of the aforesaid decision of this court, the appeal itself has been rendered incompetent and is liable to be dismissed in view of the non-compliance of the provisions of sub-rule (1) of rule 3A of Order XLI of the Code.
On the merits of the case, the learned advocate submitted that though the delay has been sought to be explained, there are specific periods which are not explained. According to the learned advocate the facts stated in the affidavit must also be backed by foundational facts. It was submitted that the law is the same for a private party and for a Government Body. Reliance was placed upon the decision of this court in the case of Acharya Shri Devendraprasadji Vasudevprasadji Maharaj Pande v. Sadhu Muktajivandasji Guru Ishwardasji, 1966 GLR 645, for the proposition that when an application for condonation of delay is made under section 5 of the Act, what the applicant has to show is sufficient cause for the delay which has elapsed between the last day of limitation and the day on which the appeal or application is filed; and secondly he has to show sufficient cause not only for not filing the appeal or application on the last day of limitation but to explain this entire period between the last day of limitation and the day on which the appeal or application is filed day by day. It was accordingly submitted that in the facts of the present case, the period between January and February, 2010 has not been explained by the applicant and as such sufficient cause cannot be said to have been made out. Reliance was also placed upon the decision of a Full bench of this court in the case of Municipal Corporation of Ahmedabad v. Voltas Ltd., 1994 (2) GLR 1325, wherein it has, inter alia, been held that the plea on the part of the applicants that delay was caused by 'administrative delay/administrative reasons/ administrative procedure' (and analogous expressions) is merely an averment in the nature of a plea which by itself and ipso facto does not establish sufficiency of the cause for condonation. Precise factual reasons for the delay within the general ambit of the phrase must be established and that too to the satisfaction of the court. The decision of the Supreme Court in the case of Ajit Singh Thakur Singh v. State of Gujarat, 1981 GLR 268 SC, for the proposition that when an applicant allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired, it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute such sufficient cause. But that the limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation. The decision of this court in the case of Dilipsinh Pravinsinh v. Suvidha Builders through Administrator, (2004) 5 GHJ (575) was cited for the proposition that affidavit must come from different departments to explain the delay at the end of each department. It was submitted that in the present case the different departments have not filed any affidavits in respect of the delay caused at the end of the said department.
In rejoinder, Mr. Mihir Thakore for the applicant submitted that the decision of the Division Bench of this Court in the case of Paschim Gujarat Vij Company Ltd., through Deputy Engineer, Jamkhambhalia v. Khemchand Nathabhai Gadhavi (supra) cannot be relied upon as the same is per incuriam having been rendered in ignorance of the decision of the Supreme Court in the case of State of M. P. and another v. Pradeep Kumar and another, (2000) 7 SCC 372 wherein the Supreme Court while interpreting rule 3A of Order XLI of the Code, held thus:
"(19) The object of enacting Rule 3-A 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 3-A Order 41 of the Code."
It was, accordingly, submitted that in the light of the aforesaid decision of the Supreme Court, the deficiency in not filing a delay condonation application along with the appeal 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 of Order XVI of the Code. The attention of the Court was also drawn to the decision of a Full Bench of this High Court in the case of Prakashkumar Prahladbhai Patel v. District Primary Education Officer, 2000(3) GLR 2467, wherein the court has held that once a matter is settled by the apex court, there would hardly remain any scope for referring the same question for a decision by a Larger Bench. In fact, the reference on a point which is already decided by the Supreme Court would be a redundant reference. The decisions of the Supreme Court are binding precedents in view of Article 141 of the Constitution of India and when the question is decided by the Supreme Court, there would remain no scope for its being decided by the High Court, and what remained to be done by the High Court was only to apply the law settled by the highest Court of the land to the facts before it. If the High Court had earlier decided a case in ignorance of the Supreme Court decision, that would be per incuriam decision.
The learned counsel, accordingly, submitted that it was not necessary for the court to refer the matter to the Larger Bench when the Supreme Court has already decided the controversy in issue.
Countering the aforesaid submission advanced by the learned counsel for the applicant, Mr. S. M. Shah, learned advocate for the respondents invited attention to the decision of the Division Bench in the case of Paschim Gujarat Vij Company Ltd., through Deputy Engineer, Jamkhambhalia v. Khemchand Nathabhai Gadhavi (supra), to point out that the court had referred to various statutory provisions, viz., rule 3A of Order XLI of the Code, rule 67(i) of the Gujarat High Court Rules as well as the provisions of section 3 of the Limitation Act. It was submitted that these additional factors have been taken into consideration by this court while rendering the above referred decision. According to the learned advocate the object of rule 67(i) of the High Court Rules is to make it compulsory for an appeal to be presented along with an application for condonation of delay. The attention of the court was also drawn to the fact that the Division Bench has placed reliance upon a decision of the Supreme Court in the case of Noharlal Verma v. District Co-operative Central Bank Ltd., Jagdalpur, 2008 (14) SCC 445, to submit that the judgement on which the Division Bench has placed reliance is subsequent in point of time and as such, the same would prevail.
Mr. Shah next submitted that the decision in the case of Paschim Gujarat Vij Company Ltd., through Deputy Engineer, Jamkhambhalia v. Khemchand Nathabhai Gadhavi (supra) is a decision of a Division Bench of this court. Even if the same is erroneous, it is not permissible for a Single Judge to say that it is incorrect or that the decision rendered by the Division Bench is per incuriam.
It was submitted that there is no course open to this court but to refer the matter to a Division Bench or a Larger Bench.
As noticed earlier, a Division Bench of this Court in Paschim Gujarat Vij Company Ltd., through Deputy Engineer, Jamkhambhalia v. Khemchand Nathabhai Gadhavi (supra) has held that the provision of sub-rule (1) of rule 3A of Order XLI of the Code mandates that if a time-barred appeal is filed, it has to be accompanied by an application and affidavit for condonation of delay. In absence, the appeal is rendered incompetent and is liable to be dismissed. The rule is mandatory in nature and its non-compliance is fatal. The court has also placed reliance upon rule 61(i) of the High Court Rules and has held that it was mandatory for the appellant to file an application for condoning the delay supported by affidavit when the appeal came to be presented. In absence of non-compliance of rule 67(i), the appeal is liable to be dismissed. The court has also drawn support from the decision of the Supreme Court in the case of Noharlal Verma v. District Co-operative Central Bank Ltd., Jagdalpur (supra).
The Supreme Court in the case of State of M. P. and another v. Pradeep Kumar and another (supra) was dealing with a case similar to the case before the Division Bench wherein a learned Single Judge of the High Court of Madhya Pradesh held that an appeal filed out of time unaccompanied by an application to condone the delay is liable to be axed down at the threshold and hence the situation cannot be rectified by filing an application at any later stage. The learned Single Judge rejected a second appeal on the sole ground that the delayed appeal was presented without accompanying an application to condone the delay. The Supreme Court, after considering various decisions on the issue, held thus:
"(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 an accompanying 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.
(19) The object of enacting Rule 3-A 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 3-A Order 41 of the Code."
Insofar as the decision of the Supreme Court in the case of Noharlal Verma v. District Co-operative Central Bank Ltd., Jagdalpur (supra) is concerned, the same was rendered in the context of section 55 of the Madhya Pradesh Cooperative Societies Act, 1966, which allowed an aggrieved party to approach the Registrar within a period of thirty days. There was no provision analogous to section 5 of the Limitation Act, 1963 allowing the Registrar to condone the delay if "sufficient cause" is shown. In view of this fact, the Supreme Court held that the application submitted by the appellant therein was barred by time.
Thus, it is apparent that there is a conflict between the decision rendered by the Division Bench of this court in the case of Paschim Gujarat Vij Company Ltd., through Deputy Engineer, Jamkhambhalia v. Khemchand Nathabhai Gadhavi (supra) and the decision rendered by the Supreme Court in the case of State of M. P. and another v. Pradeep Kumar and another (supra).
The Supreme Court in the case of State of U.P. And another v. C. L. Agrawal and another, (1997) 5 SCC 1 held thus:
"(19) We are dismayed that the Division Bench hearing the said writ petition should have proposed to examine the issue "notwithstanding the aforesaid pronouncement of the Full Bench judgement ...". If the judgement in the cases of Supreme Court Employees' Welfare Association and H.C. Puttaswamy were cited and the respondents to the said writ petition submitted that the Full Bench judgement was erroneous by reason thereof, the proper course for the Division Bench to follow, if it found any merit in the submission, was to refer the said writ petition to a Full Bench. Judicial discipline requires that a Division Bench should not examine de novo an issue that is concluded by the decision of a Full Bench of that High Court."
In State of Uttaranchal v. Sandeep Kumar Singh and others, (2010) 12 SCC 794, the Supreme Court has held that a two-Judge Bench of the Supreme Court could not have held the decision rendered by a three-Judge Bench in S. Pushpa case to be obiter and per incuriam.
The court placed reliance upon the decision of a Constitutional Bench of the Supreme Court in the case of Central Board of Dawoodi Bohra Community v. State of Maharashtra, (2005) 2 SCC 673, wherein it had been held thus:
"(1) The law laid down by the Supreme Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.
(2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted."
In the light of the law laid down by the apex court in the above referred judgments, propriety demands that the matter be decided by a Larger Bench. Hence, the matter is referred to 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 an accompanying application to condone delay, the consequence would be fatal?
The Registry is directed to forthwith place the matter before the Hon'ble the Chief Justice for appropriate orders as the controversy involved in the present case relates to presentation of appeal beyond the prescribed period of limitation without accompanying application and affidavit to condone the delay, which would be a recurrent issue in many matters as in many cases applications for condonation of delay are filed after the presentation of the appeal.
[HARSHA DEVANI, J.] parmar*