1986 Supreme(Raj) 722
RAJASTHAN HIGH COURT AT JAIPUR BENCH
M.B.Sharma, S.Israni, JJ.
State of Rajasthan - Appellant
Versus
Vijay Singh etc. - Respondent
D.B. Civil Spl. Appeal (Writ) Nos. 1207 to 1210 of 1985 (defect).
Decided On : 25-09-1986
Important Points
The requirement of Rule 134 of the Rules of the High Court of Judicature for Rajasthan 1952, which requires a special appeal filed after the prescribed limitation period to be accompanied by an application supported by an affidavit explaining the delay, is not mandatory. An application under Section 5 of the Limitation Act can be filed later on, if it does not accompany the memorandum of appeal, and will have to be disposed of on merits.
Subject
Civil Law - Limitation
Headnote
SPECIAL APPEAL - LIMITATION - ACCOMPANIMENT OF APPLICATION UNDER ORDER 41 RULE 3-A OF THE CIVIL PROCEDURE CODE - MANDATORY OR DIRECTORY - INTERPRETATION OF RULE 134 OF THE RULES OF THE HIGH COURT OF JUDICATURE FOR RAJASTHAN 1952 - APPLICABILITY OF SECTION 5 OF THE LIMITATION ACT - CONDONATION OF DELAY.
Fact of the Case:
Four special appeals were filed against an order of the learned Single Judge, challenging the constitutional validity of a provision in the Rajasthan Service Rules (RSR). The appeals were filed after the prescribed limitation period and were not accompanied by an application supported by an affidavit explaining the delay, as required under Order 41 Rule 3-A of the Civil Procedure Code (CPC). The court had to determine whether the requirement of Rule 3-A was mandatory or directory and whether an application under Section 5 of the Limitation Act could be filed later on.
Finding of the Court:
The court held that Rule 134 of the Rules of the High Court of Judicature for Rajasthan 1952, which deals with special appeals, incorporates the principles of Section 5 of the Limitation Act. The court found that the requirement of Rule 134, which is analogous to Rule 3-A of Order 41 CPC, is not mandatory. The court held that despite the rule being couched in mandatory form, an appeal cannot be dismissed solely because it was not accompanied by an application under Rule 134 or because the application was not supported by an affidavit. The court further held that an application under Section 5 of the Limitation Act can be filed later on, if it does not accompany the memorandum of appeal, and will have to be disposed of on merits.
Issues: 1. Whether the requirement of Rule 134 of the Rules of the High Court of Judicature for Rajasthan 1952, which requires a special appeal filed after the prescribed limitation period to be accompanied by an application supported by an affidavit explaining the delay, is mandatory or directory? 2. Whether an application under Section 5 of the Limitation Act can be filed later on, if it does not accompany the memorandum of appeal?
Ratio Decidendi: 1. The court interpreted Rule 134 of the Rules of the High Court of Judicature for Rajasthan 1952, which deals with special appeals, and found that it incorporates the principles of Section 5 of the Limitation Act. The court held that the requirement of Rule 134, which is analogous to Rule 3-A of Order 41 CPC, is not mandatory. The court reasoned that a strict interpretation of the rule would make the provision of Section 5 of the Limitation Act redundant even in deserving cases. 2. The court held that an application under Section 5 of the Limitation Act can be filed later on, if it does not accompany the memorandum of appeal, and will have to be disposed of on merits. The court reasoned that such an interpretation would advance the cause of justice, for which all procedural laws are framed.
Final Decision: The court rejected all four special appeals as the appellants failed to show sufficient cause for condoning the delay in filing the appeals. The court found that there was a total negligence and carelessness of the various authorities and that each day's delay had not been explained.
JUDGMENT
1. - Common question is involved in all the above mentioned four special appeal as to what is the effect if the memorandum of appeal presented after expiry of period of limitation specified therefor is not accompanied by an application supported by an affidavit as required under Order 41 Rule 3-A of the Civil Procedure Code? Whether order 41 Rule-z-A of the Code of Civil Procedure is mandatory or directory? Other questions are involved which are also common and therefore all the four special appeals listed above are being disposed of by this common judgment.
2. The learned Single Judge under his order dated January 28. 1985 decided five writ petitions in which clause (a) of sub-rule (2) of rule 8 of RSR was under challenge. The learned Judge held that the aforesaid clause is arbitrary and unreasonable and is violative of the right to equality guaranteed under Articles 14 and 16 of the Constitution and therefore, it cannot be upheld and must be struck down The effect of aforesaid view was that except S.B. Civil Writ Petition No. 634/82 Karrar Singh v. State of Rajasthan and others , the other four writ petitions were allowed and the orders rejecting the representation of the petitioners-respondents herein. were quashed and a direction was issued that the representations of the respondents with regard to correction in the date of birth should be considered on merits without taking into consideration the provisions contained in clause (a) of sub-rule (2) of rule 8 of RSR.
3. Four D. B. Civil Special Appeals were filed in this court and they were defective and as such :defect numbers were assigned to each of them. Special Appeals State v. Vijay Singh , State v. Balkrishan , State v. Samarathlal and State v. Hari Singh , were assigned D. B. Civil Special Appeal (defect No 1207/1981, 1208/85, 12(,9/85 and 210/85 (respectively. The defect numbers were assigned to each of the appeals because one of the defects in each of them was that they were filed after specified period of limitation for filing appeal under section 18 of the Rajasthan High Court Ordinance 19.9 which is 30 days from the date of order. All the four special appeals against the order of the learned Single Judge. dated January 28, 1985 was filed on July I, 1985. Except in S B Civil Special Appeal (defect) No. 1208/1985 certified copy of the order was not filed, in rest of the three special appeals Even in Special Appeal No. 1208/85 (defect) a perusal of certified copy will show that an application for certified copy was filed on April 17, 1987 and copy was received on May 21. 1985. Office made objection that the special appeal was barred by 88 dais and no application for condonation of delay has been filed by the Government Advocate. The Court allowed time to the Government Advocate to remove the defects and also passed pre-emptory order on August 20, 198.5. An application under section 5 of the Limitation Act was only filed on October 16, 1985 which was accompanied by an affidavit of Shri P.C Puri Dy. Director, Police Forensic Science Laboratory Jaipur. Because a pre-emptory order as already stated earlier, was passed and it was ordered by the court on December 3, 1985 that proper application should be filed in view of the pre-emptory order, because the defects have not been removed before the expiry of the pre-emptory order The learned Government Advocate filed an application on February 4. 1986 praying for re-calling of the pre-emptory and for treating the application also as an application under Section 5 of the Limitation Act and to condone the delay. In the remaining three Special appeals, in which as already stated earlier no certified copy of the order was filed alongwith the memorandum of appeal, applications have been filed for dispensing with the filing of the certified copy of the order. No orders were passed on the aforesaid three applications and time was sought/ allowed to remove the defects. Certified copy of the order of the learned Single
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