Himachal Pradesh High Court
Kusum Kumar And Others vs State Of Himachal Pradesh And Others on 26 April, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA.
CMPMO No. 50 of 2016
Decided on: 26.4.2016
.
______________________________________________________
Kusum Kumar and others. ...Petitioners
Versus
State of Himachal Pradesh and others. ...Respondents.
______________________________________________________________
Coram:
of
Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting?1 Yes
For the petitioners : Mr. Gaurav Gautam, Advocate.
rt
For the Respondents: Mr. Parmod Thakur, Addl. A.G. with
Mr. Neeraj K. Sharma, Dy. A.G.
____________________________________________________________
Justice Rajiv Sharma, Judge (oral):
This petition is instituted against the order dated 1.8.2015 rendered by the Additional District Judge, Kangra at Dharmashala in CMA No. 42 of 2015.
2. "Key facts" necessary for the adjudication of this petition are that one Jayabanti Devi deceased instituted a suit against the respondent seeking decree for payment of arrears of pension, which was payable to her husband late Sh. Desh Raj. The suit was decreed vide judgment and decree dated 29.3.2012 passed by the learned Civil Judge (Junior Division), Indora, District 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:11:06 :::HCHP 2Kangra, H.P. The petitioners, being legal heirs of judgment debtors instituted an Execution Petition before the trial court. Notice was issued to the judgment debtors on .
24.4.2014. Respondents preferred an appeal against the judgment and decree dated 29.3.2012 before the Additional District Judge, Kangra at Dharamshala alongwith an application under section 5 of the Limitation Act for of condonation of delay. Respondents have also filed an application under order 41 rule 5 of the Code of Civil rt Procedure seeking stay of the judgment dated 29.3.2012.
Learned Additional District Judge passed the order on 1.8.2015 staying the operation of impugned judgment and decree.
3. Mr. Gaurav Gautam, learned counsel for the petitioners, has vehemently argued that since the appeal was barred by three years and the delay has not been condoned, as such, interim order could not be passed.
4. Mr. Parmod Thakur, learned Additional Advocate General, has supported the order dated 1.8.2015 passed by the learned Additional District Judge.
5. I have heard the learned counsel for the parties and have gone through the judgment and decree dated 29.3.2012 and order dated 1.8.2015 carefully.
::: Downloaded on - 15/04/2017 20:11:06 :::HCHP 36. It is evident from the order dated 1.8.2015 that notice was issued to the petitioners. They were ordered to be summoned for 24.8.2015 and till then the operation of .
impugned judgment and decree was stayed. The petitioners were granted opportunity to file reply/objection on or before the next date.
7. Division Bench of Madras High Court in Gouse of Bi versus Salima Bi, AIR 1974 Madras 220 has held that even though an appeal is presented beyond the period of rt limitation and no order has been made on an application to condone delay there is an appeal before the court in view of order 41 rule 1 and if an application for interim stay of an execution is made, the court can grant the interim stay ex parte under order 41 rule 5 (4) even though an application for condoning delay is not decided. Division Bench has further held that order 41 rule 1 (3) does not preclude the making of such interim order. Apart from rule 5 (4), the court can pass ex parte order of stay under section 151.
This judgment has been rendered by the Division Bench of the Madras High Court before the insertion of rule 3-A (1) in order 41 of the Code of Civil Procedure vide Amendment Act No. 104 of 1976. Division Bench has held as under:
"[8] In the same way, in our opinion, particularly having regard to the wording of Order XLI, Rule 1, as pointed out already there ::: Downloaded on - 15/04/2017 20:11:06 :::HCHP 4 is an appeal to this court, even though it has not been presented in time and it might even turn out eventually that the application for excusing the delay is no allowed. Madhavan Nair, J., expressed the view that the decision of the Privy Council did not apply to the facts of the case before him. With respect, we .
differ.
[9] Now we come to the second question, whether Order XLI, Rule 1(3) forbids us to pass an ex parte order of stay. In answering the question we must remember at the outset how in some cases the very purpose of the appeal may be frustrated and injustice may result if such an ex parte order is not passed. Quite often, particularly, in these days, when it is difficult to get of accommodation in trains or even in buses and there is even strike in the railways and bus transports, a party may not be able to come to Madras and file an appeal in time and the chances are that the application for excusing the delay would be allowed. But, rt in the meantime, if the appellant's house is pulled down as a result of the lower court's decree, irreparable harm would be caused to him and it would be no consolation to him to be told that he would be given restitution in money, if his appeal is eventually allowed. It is easy to imagine other such instances of substantial loss within the meaning of Order XLI, Rule 5 irreparable harm to the appellant. Yet, on the reasoning of Paul, J., the court would be powerless to pass any order and prevent such substantial loss or irreparable harm. It is no use saying that hard cases make bad law, because such instances of substantial loss or irreparable harm are quite common and likely to happen often if the decree is not stayed. Further, that maxim would have application only if the law is unequivocal, but where, as in this case, Order XLI, Rule 5 enables the court to pass an ex parte order of stay, and the interests of justice do require it, we should not construe Order XLI, Rule 1(3) so as to make the provisions of Order XLI, Rule (5) a dead letter, and so as to result in injustice. It is possible to give an interpretation which would reconcile both Order XLI, Rule 1(3) and Order XLI, Rule 5, namely, that when the court passes an ex parte order of stay, it does not deal with the appeal in any manner, but is merely maintaining the status quo. It must be remembered that the reason for the introduction of Order XLI, Rule 1(3) was the decision of the Privy Council in ILR 41 Mad 412 = (AIR 1917 PC 179), which again ::: Downloaded on - 15/04/2017 20:11:06 :::HCHP 5 shows that the reason why their Lordships suggested that the question of excusing the delay should be disposed of first was only to prevent needless expenditure of printing records or typing voluminous records and engaging counsel paying heavy fees, which would be unnecessary if the delay were not to be .
excused. This being the object underlying the introduction of the rule, we need not extend it so as to throttle the exercise of the power of the appellate court under Order XLI rule 5.
[10] We are finally of the opinion that Order XLI rule 5 itself enables us to pass an ex parte order of stay; but if necessary, we are prepared to say that we can exercise the power of stay by virtue of our inherent powers under Section 151 C.P.C.
of The principle in these cases has been enunciated in several cases, and it is sufficient to refer to some of them. In Nandakishore Singh v. Ramgolam Sahu, (1913) ILR 40 Cal 955, it was held by that eminent Judge, Mookerjee J. that the High rt Court, in exercise of its inherent powers, could make an order of stay of proceedings in execution of its decree in view of an application by the judgment-debtor to the Judicial Committee for special leave to appeal to His Majesty in Council, though the case was not expressly covered by the rules. The learned Judge pointed out that, if the proposed application for special leave was granted by the Judicial Committee, the High Court would be competent to stay the proceedings under the authority of the decision of the Privy Council. He proceeded to observe--
"The Court, therefore, ought now to act in aid of possible order of stay that may hereafter have to be made. if the contrary view is taken, what is the result? Assume that the present application for stay is refused, and the decree-holder permitted to sell the mortgaged properties; the application for special leave is granted by the Judicial Committee and an application then made to this court by the judgment-debtors for stay of proceedings. Are we to say that our action has already been paralysed, that we are powerless to grant relief and that the application is infructuous? I am strongly of opinion, after most anxious consideration of the subject, that the court should not tolerate such a result, and, as I have shown, the position may be avoided by the recognition of sound judicial principles......... It is fairly obvious that, if the contention of the decree-holders were to prevail, the gravest injustice might be done to litigants. An ::: Downloaded on - 15/04/2017 20:11:06 :::HCHP 6 application to the Judicial Committee for special leave to appeal to His Majesty in Council must necessarily take time; distance cannot be annihilated, and time must be occupied, in spite of the utmost expedition, in the preparation and transmission of papers....... if meanwhile his properties are allowed to be sold up .
by the decree-holders on the theory that this court is powerless to interfere, not only may an application for stay after the grant of the special leave, as contemplated by the Judicial Committee in Nityamoni Dasi v. Madhusudan Sen, (1911) ILR 38 Cal 335 (PC), become infructuous, but the appeal admitted by special leave of their Lordships of the Judicial Committee may turn out to be wholly illusory and ineffectual. It cannot seriously be of maintained that the grant of a stay in any way throws doubt on the decree or weakens its effect; the stay is granted on the principle that the parties should, if the circumstances justify the adoption of such a course, be retained in status quo till the rt validity of the decree has been tested in the court of ultimate appeal. The exercise of the inherent power of the court should thus be widened to aid the administration of justice and not unduly restricted so as to cause needless hardship to litigants and a possible failure of justice".
Holmwood, J., was not prepared to differ on the general principles, though he stated that in that particular case the use of the inherent power would be an abuse of the process of the court."
8. Learned Single Judge of Gujarat High Court in Naran Anappa Shethi vs. Jayantilal Chunilal Shah, AIR 1987 Gujarat 205 has held that order 41 rule 3-A of the Code of Civil Procedure is directory and not mandatory.
Learned Single Judge has also held that rule 3-A (1) in order 41 of the Code has been inserted by Amendment Act No. 104 of 1976. The object of inserting this provision was to put an end to the practice of admitting of appeal subject ::: Downloaded on - 15/04/2017 20:11:06 :::HCHP 7 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 of inserted. Learned Single Judge has also held that provisions of rule 3-A cannot be said to be mandatory.
rt Learned Single Judge has held as under:
[6] With respect, it is difficult to agree with the views taken by the Kerala High Court and the Karnataka High Court. The provision of Rule 3A(1) in Order 41 of the Code has been inserted by Amendment Act No. 104 of 1976. The object of inserting this provision 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 3A in Order 41 has been inserted.
[7] The provisions of Rule 3A cannot be said to be mandatory for the following reasons :
(a) The provision contained in Order 41 Rule 3A 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. In this connection the observations of the Supreme Court in the case of Sangram Singh v. Election Tribunal, Kotah, reported in AIR 1955 SC 425 may be referred to :
"Now a code of procedure must be regarded as such. It is 'procedure', something designed to facilitate justice and further ::: Downloaded on - 15/04/2017 20:11:06 :::HCHP 8 its ends : not a penal enactment for punishment and penalties :
not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to 'both' sides) lest the very .
means designed for the furtherance of justice be used to frustrate it."
Therefore, 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.
(b) The contention that having regard to the wordings of Rule 3A of of Order 41 of the Code, the provision has got to be construed as mandatory cannot be accepted. It is true that looking to the phraseology of the provisions of Order 41 Rule 3A one may be tempted to say that the provision is mandatory. This is because rt of the use of the phrase "it shall be accompanied by an application supported by affidavit." While adopting the literal construction of the provision, one has got to keep in mind the intention of the Legislature in enacting the provision. As stated above, the intention of the Legislature was to see that the practice of deferring the question of limitation and deciding the same together with the final hearing of the appeal was not proper and that was required to be stopped. Therefore, the provision for an application for condonation of delay and for deciding the same before admitting the appeal has been made. There is no other virtue in insisting upon an appeal memo being accompanied by such an application supported by affidavit. As held by the Supreme Court in the case of State ofM.P. v. Azad, reported in AIR 1967 SC 276, if a statute leads to absurdity, hardship or injustice presumably not intended, a construction may be put upon it which modifies meaning of words and even the strutcure of the sentence. In para 5 of the judgment, the Supreme Court has observed :
"It is well settled that the use of the word "shall" does not always mean that the enactment is obligatory or mandatory; it depends upon the context in which the word "shall" occurs and the other circumstances."
(c) In the instant case, if strict adherence to the provisions of Rule 3 A is insisted upon, it is likely to result into immense ::: Downloaded on - 15/04/2017 20:11:06 :::HCHP 9 hardship, inconvenience and in many cases, it will surely lead to miscarriage of justice. There are, ikely to be cases in which the appellant may be bona fide believing that his appeal was within time or the court may, while considering the appeal at the final hearing stage, think that the appeal was filed beyond the period .
of limitation. At the stage of final hearing only, it may come to the notice of the court or it may be pointed out by the other side that the appeal was in fact filed beyond the period of limitation.
The court may come to the conclusion that the appeal, as a matter of fact, was filed after the expiry of the period of limitation. The court may also find that it was a case ofbona fide mistake. In such cases, if strict adherence to the provisions of of Order 41 Rule 3 A is insisted upon the appeal will have to be dismissed as being time-barred without considering the question of condonation of delay because there was no application accompanying the appeal memo praying for condonation of rt delay. Such an absurd result would never be intended by the Legislature. As a matter of fact, the Legislature never wanted to cover such type of cases. The only intention of the Legislature was to see that the question of limitation should be decided initially before admitting the appeal. For achieving this object it is not necessary that there must be a written application praying for condonation of delay and that such application should be accompanied with the appeal memo.
(d) Despite the use of the word 'shall', the provision made is only directory. 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 Order 41 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.
(c) At this stage, reference may be made to a Division Bench judgment of the Patna High Court in the case of State of Bihar and others v. Raj, A.I.R. 1983 Patna 189. In that case also the provisions of Order 41 Rule 3 A came up for interpretation and the view taken by the Patna High Court is that the provision is directory and not mandatory.
(f) In both the decisions relied upon by the counsel for the respondent-landlord, the provisions of Order 41 Rule 3 A have been held to be mandatory. No reasons have been assigned why ::: Downloaded on - 15/04/2017 20:11:06 :::HCHP 10 the provision is held to be mandatory. Probably the learned Judge of the High Court of Kerala and High Court of Karnataka who decided the aforesaid cases were persuaded to hold the provision mandatory on account of the language of the provision. With utmost respect, it is not possible to agree with the view .
taken by the Kerala and Karnataka High Courts. The view taken in the two decisions is literal one and it would frustrate the ends of justice.
(g) The following passage from Crawford on Statutory Construction (Ed. 1940 Art. 261 P. 516) may be seen :
"The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the of language in which the inlent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also while rt considering its nature, its design and the consequences which would follow from construing it the one way or the other."
The aforesaid passage has been approvingly quoted by the Supreme Court in the case of Govindlal Chhaganlal Patel v. Agricultural Produce Market Committee, Godhra, reported in AIR 1976 SC 263. Applying this well recognised cannon of construction of statutes, the conclusion is inescapable that the word 'shall' used in the provision is directory and not mandatory and therefore, it must be read as 'may'.
[8] There is yet another way of looking at the problem. 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 straightaway dismissed. In such a case, if an application is filed later on, then the appeal can be said to have been filed on that day, i.e. the date on which the application was filed. Therefore, at the most the appellant would be required to explain the delay till the date of filing of the application. However, as far as the present case is concerned, such a position does not arise."
9. This judgment has been relied upon by learned Single Judge of Bombay High Court in Shaikh Ibrahim ::: Downloaded on - 15/04/2017 20:11:06 :::HCHP 11 Janmohammad vs. Tekchand alias Ravindra Fakirchand Rathod, 1987 (1) MhLR 539. Learned Single Judge has held that the Civil Procedure Code has to be .
interpreted so as to advance the cause of justice. In case a decree is allowed to be executed before deciding the application for condonation of delay and also before hearing under rule 11 CPC, the judgment debtor would be of put to a great loss and inconvenience in case later on the Court condones the delay and also admit the appeal on rt hearing under rule 11. Learned Single Judge has further held that if in the interest of justice the Court thinks necessary to stay the execution for the decree pending hearing of the application for condonation of delay, it can certainly stay the execution pending hearing and decision of the application for condonation of delay and admission of appeal.
10. Their Lordships of the Hon'ble Supreme Court in State of M.P. and another vs. Pradeep Kumar and another, (2000) 7 SCC 732 have held that the object of enacting Rule 3-A in order 41 of the Code is two fold.
Firstly, to inform the appellant that time barred appeal would not be entertained without an accompanying application explaining the delay. Secondly, to indicate that ::: Downloaded on - 15/04/2017 20:11:06 :::HCHP 12 the application for condonation has to be dealt with as a condition precedent and that therefore the respondent may not have to get ready to meet the grounds of appeal. Their .
Lordships have further held that the use of the word "shall"
in order 41 rule 3-A (1) does not foreclose a chance for the appellant to rectify the mistake, either on his own or on being pointed out by the court. The word "shall" in the of context needs to be interpreted as an obligation cast on the appellant. There is no reason to put a more restrictive rt interpretation on the sub-rule. The rule cannot be interpreted very harshly and make the non-compliance punitive to an appellant. It can happen due to some mistake or lapse an appellant may omit to file the application explaining the delay alongwith the appeal.
Even a vigilant litigant is prone to commit mistakes and as the aphorism "to err is human" is more of a practical notion of human behaviour than an abstract philosophy, the unintentional lapse on the part of a litigant should not normally cause the doors of the judicature permanently to be closed before him. Their Lordships have held as under:
"[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 ::: Downloaded on - 15/04/2017 20:11:06 :::HCHP 13 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 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.
[12] It is true that the pristine maxim "vigilantibus Non Dormientibus Jura Subveniunt" (Law assists those who are vigilant and not those who sleep over their rights). But even a vigilant litigant is prone to commit mistakes. As the aphorism "to err is human" is more a practical notion of human behaviour than an abstract philosophy, the unintentional lapse on the part of of a litigant should not normally cause the doors of the judicature permanently closed before him. The effort of the court should not be one of finding means to pull down the shutters of adjudicatory jurisdiction before a party who seeks justice, on rt account of any mistake committed by him, but to see whether it is possible to entertain his grievance, if it is genuine.
[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 of Order 41 of the Code."
11. Full Bench of Rajasthan High Court in Dilip Bhai Gajrota and others versus Contractor Lime Gotan, AIR 1996 Rajasthan 119 has held that the provisions of ::: Downloaded on - 15/04/2017 20:11:06 :::HCHP 14 order 41 rule 3-A of the Code of Civil Procedure Code are directory in nature. Full Bench has held as under:
"[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 of 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 rt 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 ::: Downloaded on - 15/04/2017 20:11:06 :::HCHP 15 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."
12. Accordingly, in view of the analysis and of discussion made hereinabove, there is no merit in the petition and the same is dismissed. However, in the interest of justice, learned Additional District Judge is rt directed to decide the application filed under section 5 of the Limitation Act as expeditiously as possible within a period of three months. Pending application(s), if any, also stands disposed of. No costs.
(Justice Rajiv Sharma), Judge.
26.4.2016 *awasthi* ::: Downloaded on - 15/04/2017 20:11:06 :::HCHP