Procedural defects should not lead to automatic dismissal if they are curable and do not violate substantive rights.

Bipin Chander Negi, Judge (oral)

Present petition has been preferred against the imp ugned judgment dated 17.1.2024 passed by the learned District Judge, Shimla, whereby an appeal preferred by the present petitioner before the 1^st Appellate Court has been rejected.

2. Heard counsel for the parties. Perused the impugned judgment .

3. The present petitioner by way of an appeal had assailed an impugned order dated 17.12.2022 passed by the Municipal Corporation Shimla in case No. 1401/AP/99. The 1^st Appellate Court on a perusal of the record before the Commissioner Municipal Corporation was of the view that since the present petitioner was not a

1 Whether the reporters of the local papers may be allowed to see the judgment?

party to the proceedings pending consideration before Commissioner Municipal Corporation, Shimla, therefore, if at all the petitioner was a “person aggrieved” against the impugned order dated 17.12.2022 passed by the Commissioner Municipal Corporation, Shim.la, then the appeal in the case at hand preferred before the Appellate Court should have been accompanied with an application to leave to appeal.

4. In my considered view, non-filing of an application for leave to appeal at best is a non-compliance with a procedural requirement. The same should not entail automatic dismissal. The said defect was curable. In this respect, it would be appropriate to refer to the authoritative pronouncement of the apex Court reported as (2006) 1 SCC 75 titloed as Uday Shankar Triyar vs. Ram Kalewar Prasad and another . Relevant extract whereof reads as follow:-

“17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural g defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmainden to justice, should never be made a tool to deny justice or perpetuate injustice, by any operative or punitive use. The well recognized exceptions to this principle are:- (i) where the statute prescribing the procedure, also prescribes specifically the consequences of non-

compliance;

(ii) where the procedural defect is not rectified, even after it is a pointed out and due opportunity is given for rectifying it;

(iii) where the non-compliance or violation is proved to be deliberate or mischievous;

(iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the Court.

(v) in case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant.

5. In this regard, it would also relevant to refer toP AIR 1949 Bombay 141 titled as The Province of Bombay vs. Western India Automobile Association wherein in exactly a Hsimilar situation, the impugned order disallowing an appeal not filed alongwith an application for leave to appeal had been set aside. f

6. For the aforesaid reasons, impugned judgment dated 17.12.2022 is quashed and s et aside. Pending miscellaneous applications, if any, also stand disposed of.

Parties are directed to appear before the 1^st Appellate Court on 28^th August, 2025. On the said date, the present petitioner would move an appropriate application for leave to defend. The same shall be considered and decided in accordance with law.