Defects in the presentation of a proceeding before the court can be cured, and the appeal can be treated as validly presented. The appeal should be deemed to be validly presented on the day it was originally filed, following the principle provided in S.149 CPC and S.5 of the Court Fees Act.

Headnote:
Delay in Filing Appeal - Court Procedure - Order XLI R.3A CPC, High Court Rules R.15(2), Civil Rules of Practice R.32 - The court discussed the procedure for excusing delay in filing an appeal, emphasizing that defects in the presentation of a proceeding before the court can be cured and the appeal can be treated as validly presented. The court overruled the conclusion that an appeal must be accompanied by an application to excuse the delay, and held that the defect is cured if the petition to excuse delay is filed as a consequence of the court's direction to cure the defect. The court also determined that the appeal should be deemed to be validly presented on the day it was originally filed, following the principle provided in S.149 CPC and S.5 of the Court Fees Act.
Fact of the Case:

The appeal in this case was filed after the time limit had expired, and the respondent raised a preliminary objection that there was no valid presentation of the appeal or the petition to excuse delay, as the memorandum of appeal was not accompanied by the application to excuse the delay as provided for under Order XLI R.3A CPC.
Finding of the Court:

The court overruled the conclusion that an appeal must be accompanied by an application to excuse the delay, and held that defects in the presentation of a proceeding before the court can be cured and the appeal can be treated as validly presented. The court also determined that the appeal should be deemed to be validly presented on the day it was originally filed.
Issues: The issues involved the procedure for excusing delay in filing an appeal, the requirement for an appeal to be accompanied by an application to excuse the delay, and the date on which the appeal should be deemed to be validly presented.
Ratio Decidendi: The court emphasized that defects in the presentation of a proceeding before the court can be cured and the appeal can be treated as validly presented. The court also held that the appeal should be deemed to be validly presented on the day it was originally filed, following the principle provided in S.149 CPC and S.5 of the Court Fees Act.
Final Decision: The court overruled the conclusion that an appeal must be accompanied by an application to excuse the delay, and held that the defect is cured if the petition to excuse delay is filed as a consequence of the court's direction to cure the defect. The court also determined that the appeal should be deemed to be validly presented on the day it was originally filed.

Judgment :-

1. This application to condone the delay in filing the appeal has been posted before us as the correctness of the decision in Padmavathi v. Kalu (1980 KLT. 306) was doubted when the application came up for consideration before one of us sitting single. The appeal in this case was filed on 24-9-1980. On that date the time to file the appeal was over. But no petition to excuse the delay was filed along with the appeal. The Registrar returned the memorandum of appeal and granted 15 days' time to cure the defects. This was on 25-9-1980. On 8-10-1980 the appeal was re-presented with the petition to excuse the delay. When the respondent entered appearance on receipt of notice of the delay petition be took up a preliminary objection that there is no valid presentation of the appeal or the petition to excuse delay is that the memorandum of appeal was not accompanied by the application to excuse the delay as provided for under Order XLI R.3A CPC. and as such the petition has only to be dismissed, in support of that contention he relied on the decision of Khalid, J in Padmavathi v. Kalu (1980 KLT. 306). R.3A is a rule of procedure to be followed in a case where an appeal is presented out of time. But it may not be correct to say that it the memorandum of appeal is not accompanied by an application to excuse the delay the court cannot return the appeal memo with a direction to cure the defect and on curing the defect to treat the appeal as validly presented. Being a rule of practice if a defect is found in the matter of presentation of a proceeding before the court, it is open to the court if any other provision of law permits, to call upon the party to cure the defects. It this is not the case then R.15(2) of the High Court Rules which directs the return of the memorandum of appeal to cure the defect and re-present the same within a period not exceeding 15 days will be meaningless. There is a similar provision in the Civil Rules of Practice, namely, R.32 of the Civil Rules of Practice which says that any plaint, petition, memorandum of appeal or other proceeding which requires any amendment to conform to the procedure or practice of the Court shall be returned for being re-presented within a period not exceeding 15 days after curing the defects. These two rules of practice are intended to cover a defect of the nature considered in this case. It is true that Order XLI R.3A provides that the memorandum of appeal shall be accompanied with the application to excuse the delay. Though this Rule has been introduced in the C.P.0 only in the 1976 Amendment so far as the High Court practice is concerned there was a similar rule-Rule 42 of the High Court Rules which provides that every memorandum of appeal presented after the expiration of the time limited by law shall be accompanied by a petition to excuse the delay. Before this Rule was introduced there was a similar rule in the earlier High Court Rules, namely R.26 which provides that an appeal presented out of time shall be accompanied by an application to excuse the delay. That rule came up for consideration in Thaycob Sait v. Ayyappan (1963 KLT. 455). A Division Bench of this court after considering the various provisions, the decision of the Supreme Court in Fagat Dhish v. Jawahar Lal (AIR 1961 SC. 832) and the earlier decision of Justice Madhavan Nair in Ratnan Adiodi v. Raman (1961 KLT. 874) adopted the following passage from the Supreme Court case as a principle of general application to govern all defective proceedings filed in court.

It would thus be clear that no hard and fast rule of general applicability can be laid down for dealing with appeals defectively filed under Order XLI, R.I. Appropriate orders will have to be passed having regard to the circumstances of each case, but the most important step to take in cases of defective presentation of appeal is that they should be carefully scrutinised at the initial stage soon after they are filed and the appellant required t

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