Orissa High Court
Rajkumar Jindal vs Orissa Forest Corporation And Anr. on 3 April, 1995
Equivalent citations: AIR1996ORI10, AIR 1996 ORISSA 10, (1995) 2 CIVLJ 900, (1996) 1 CIVILCOURTC 206, (1995) 1 ORISSA LR 634, (1996) 1 LJR 650, (1995) 3 CURCC 96, (1995) 80 CUT LT 42
Author: A. Pasayat
Bench: A. Pasayat
ORDER A. Pasayat, J.
1. Petitioner, plaintiff in title Suit No. 46 of 1987 challenges the order for condonation of delay in presentation of appeal by the opposite parties (defendants in the suit) before the learned Addl. District Judge. Titilagarh.
2. Background facts sans unnecessary details are as follows :
Petitioner as plaintiff had filed the aforesaid suit in the Court of Subordinate Judge, Titilagarh with a prayer to declare his right, title and interest over the case land and for permanent injunction against the opposite parties on several grounds. The present opposite parties appeared in the suit and filed written statement denying the assertions made in the plaint. Evidence was adduced by the parties and on perusa and consideration , thereof, the suit was decreed in favour of petitioner. Title Appeal No. 19/12 of 1991-93 was filed by opposite party No. 1 in the Court of learned Addl. District Judge. Titilagarh. Undisputedly, the same was filed beyond the time prescribed for preferring appeal. An application under Section 5 of the Limitation Act, 1963 (in short 'Limitation Act') was filed stating that on account of unavoidable difficulties there was delayed presentation of the appeal. On consideration of the grounds taken, delay was condoned and appeal was admitted for hearing on merits. Condonation of delay is the subject-matter of challenge in this application.
3. Mr. M. Section Mishra, learned counsel appearing for petitioner has urged that application for condonation of delay did not meet the requirements of Order 41, Rule 3A of the Civil P. C., 1908 (in short, the 'Code') and therefore, the same should not have been acted upon. Elaborating it is stated that the aforesaid provision mandates an affidavit to accompany a petition for condonation for delay, which was not filed. Even though it was subsequently filed, that did not cure initial defect in the application. It is further urged that prima facie untenable grounds were taken in support of the application for condonation. It is further urged that petitioner has been prejudiced because of delayed action and even if it is accepted that delay was to be condoned, costs should have been awarded to mitigate the difficulties. Learned counsel for the Orissa Forest Corporation Ltd. (hereinafter referred to as 'Corporation'). (opposite party No. 1) on the other hand supported the order of learned Addl. District Judge. According to him, provisions of Order 41, Rule 3A of Code are not mandatory and even if affidavit was filed subseqeuntly, that was to be taken note of. It is further stated that on genuine grounds condonation of delay was sought for and learned Addl. District Judge has acted perfectly within his jurisdiction and in accordance with law.
4. In order to appreciate rival contentions, provision an contained in sub-rules (1) and (2) of Rule 3 A of Order 41 of the Code are to be noted. The same reads as follows :
"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) If the Court sees no reason to reject the application without the issue of 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.
The pivotal question is whether provisions of Order 41, Rule 3 A of the Code are mandatory as contended by the petitioner or directory as urged by Corporation. The said rule has been inserted by Amending Act of 1976 in order to prescribe a procedure for securing final determination of the question as to limitation even at the stage of admission of appeal. A combined reading of Rule 3A(1) and (2) makes it manifest that the purpose of requiring the filing of an appiication for condonation of delay under Rule 3A(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 3A(1) and (2), as becomes clear from the legislative history of Rule 3A. So penalty of rejection or dismissal of a time barred appeal for non-compliance of the requirement of Rule 3A(1) in envisaged therein. Thus when Rule 3A(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 3A(1) being procedural is intended to aid 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 of Limitation Act for condonation of delay has to necessarily dissmiss it not because of non-compliance with Rule 3A (1) but because of operation of Section 3 of the Act. An appeal preferred after the prescribed period shall be dismissed because of the bar of limitation imposed by Section 3 of the Limitation 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 3A (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. My view receives support from decisions of not only various other High Courts i.e. Kerala, Patna, Bombay and Karnataka High Courts in Maya Devi v. M.K. Krishna Bhattathiri, AIR 1981 Kerala 240, State of Bihar v. Ray Chandi Nath Sahay, AIR 1983 Patna 139, M. Das Gupta v. Prakash K. Shah, AIR 1984 Bom 390 and State of Karnataka v. Nagappa, AIR 1986 Karnataka 199, but also decision of this Court in Dilabar v. Sulabha, AIR 1986 Orissa 38. As observed by this Court in Dilabar's case (supra) it cannot be said that in every timbe-barred appeal, where the memorandum of appeal is not accompanied by application for condonation of delay or accompanied by an application not supported by an affidavit, the Court is altogether powerless to consider the matter. Such an interpretation would defeat the very purpose i.e. advancing the cause of justice, for which all procedural laws are framed. The object of inserting Rule 3A(1) in Order 41 was to put an end to the practice of admitting of appeal subject to the decision on question of limitation. This practice was disapproved by the Privy Council in Krishnaswami v. Ramaswami, AIR 1917 PC 179 and it stressed the expediency of adopting a procedure under which the final determination of 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 of Order 41 has been inserted. The Law Commission of India in its Twenty-seventh Report (Page 237) referred to decision of the Privy Council in Krishnaswaini's case, AIR 1917 PC 179 (supra) as noticed in its earlier report (Fourteenth Report) and laid stress on the expediency of adopting a procedure for securing at the stage of admission, the final determination, after due notice of the question of limitation affecting the competence of the appeal, and suggested insertion of proposed Rule 3A of the Code for the purpose. That is how Rule 3A was enacted. Appellate Court has no jurisdiction to defer question of limitation to be considered at the time of hearing, and to admit the appeal. The language of the Rule leaves no room for doubt that question of limitation is to be decided before the appeal is heard under Rule 11 for admission.
A Code of Procedure must be regarded as such. It is procedure, something designated to facilitate justice and further its ends not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical construction of a provision that leaves no room for reasonable elasticity of interpretation should he guarded against (provided that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence of even infraction of rules of procedure. A procedural step which facilitates hearing of appeal cannot impede access to justice. As observed by Apex Court in Collector, Land Acquisition, Anantnag v. Mst. Katiji, AIR 1987 SC 1353 legislature has conferred power to condone delay by enacting Section 5 of the Limitation Act in order to enable Courts to do substantial justice to the parties by disposing of matter on merits. Courts are to apply law in a meaningful manner which subserves ends of justice. Though a justifiable liberal approach in matters of limitation is necessary, at the same time no letharjic inaction is to be encouraged. That would also frustrate ends of justice. When substantial justice and technical considerations are pitted against each other, the former has to be preferred. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides.
5. In the case at hand, admittedly application originally was not accompanied by an affidavit. But records show that subsequently the affidavit was filed. Learned Addl. District Judge was therefore, justified in treating the application for condonation to be in accordance with law, and in dealing with it, The reasons indicated by the Corporation in support of the application for condonation cannot be termed to be unreasonable or unacceptable so as to warrant interference, while exercising power under Section 115 of the Code.
6. But as rightly submitted by learned Counsel for petitioner, inconvenience was caused to petitioner for delayed presentation of appeal, and he is entitled to costs. The opposite party No. I Corporation is a corporate body. It acts through its officer as it has no mind of its own. But when a period of limitation is prescribed, ail possible efforts are to be made to take steps within the time stipulated. Ends of justice would be best served, if the opposite party No. 1 Corporation pays costs. Considering the extent of delay and nature of dispute involved. I direct the Corporation to pay a sum of Rs.500/-(live hundred as costs), to be paid to the learned counsel for petitioner in this Court within a month from today. Receipt however shall be filed before learned Addl. District Judge, Titilagarh. If such receipt is filed, appeal shall be taken up for hearing on merits. This order shall operate only if costs are paid within the time stipulated.
The Civil Revision is disposed of accordingly.
Send back the LCR forthwith.