VERY IMPORTANT POINT
Second appeal cannot be rejected on the sole ground that the delayed appeal was presented without accompanying an application to condone the delay; 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.

Headnote:Code of Civil Procedure, 1908-Section 100 r/w Order 41, Rule 3-A -Second appeal-Delay in filing appeal-Petition to condone delay and accompanied by memorandum of appeal-Petition to condone delay filed subsequently-Rejection of second appeal on sole ground that delayed appeal presented without application to condone delay-Unsustainable-Rule 3-A is not intended to operate as unremediably or irredeemably fatal against appellant-Deficiency is a curable defect-If required application is filed subsequently appeal can be treated as presented in accordance with requirement in Rule 3-A-If application is filed before rejection of appeal same should be taken up along with already filed memorandum of appeal.
       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 accompanying the 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. (Para 10)
       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 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. (Para 11)
       The object of enacting Rule 3-A in Order 41 of the Code seems to be two-fold. 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. (Para 17)

JUDGMENT

Thomas, J.-Leave granted.

2. 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. 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. An order so passed by the High Court is now being assailed before us by special leave.

3. A suit was filed by the respondents against the State of Madhya Pradesh and one of its Sales Tax Officers for a decree of declaration of their title and consequential injunction in respect of a residential building. The suit was dismissed on the ground of want of jurisdiction to entertain the suit. The plaintiffs filed an appeal before the District Court against the dismissal and the District Judge reversed the decision of the trial Court regarding jurisdiction and remanded the case to the trial Court for disposal of the suit on merits.

4. On 10.12.1996 the appellants filed a second appeal before the High Court challenging the judgment and decree passed by the District Judge in the first appeal. There was some delay in filing the said second appeal, but when it was presented no application for condoning the delay was filed by the appellants along with the appeal. However, appellants filed such an application under Section 5 of the Limitation Act on 6.1.1997.

5. On 31.1.1997 the High Court issued notice to the respondents on the appeal, without deciding the delay application. Long thereafter the respondents moved the High Court for disposal of the appeal on the ground that it is barred by limitation.

6. Learned Single Judge of the High Court allowed the said motion of the respondents and dismissed the second appeal filed by the appellants by observing thus :

"A perusal of provision of Order 41 Rule 3A shows 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."

7. The appellants cited before the learned Single Judge a decision of the Karnataka High Court in State of Karnataka v. Nagappa1 but he declined to follow the dictum therein on the premise that another Single Judge of the M.P. High Court had taken a different view earlier regarding the legal consequences of not filing an application for condoning the delay along with the filing of the appeal. Learned Single Judge has stated the following for the purpose of meeting the aforesaid contention advanced by the appellants.

"Similar question had arisen before this Court in First Appeal No. 107/95 decided on 3.8.95 and this Court took the view that as the appeal was not accompanied with application for condonation of delay and affidavit, stating the fact, the appeal was not competent. In view of this specific finding of the learned Single Judge, the decision of the Karnataka High Court cannot help the learned counsel for the appellants."

8. Learned counsel for the appellants contended that the High Court has placed a very narrow construction on Rule 3A of Order 41 of the Code of Civil Procedure (for short the Code ) which resulted in pre-empting the right of appeal conferred by the statute, because the court had the power to condone the delay on showing reasonable explanation for it. In order to decide the said question we have to make a short survey of the relevant Rules in the Code.

9. Order 42 Rule 1 of the Code says that the rules in Order 41 shall apply, so far as may be, to appeals from appellate decrees. Order 41 Rule 1 says that every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the court or

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2000 Supreme(SC) 1494

Cases Referred (6)