M N G KRISHNAIAH Vs. GANESHAPPA

JUDGEMENT

(1.) THIS revision under Section 115 of the Code of Civil Procedure arises from the judgment and order dated august 21, 1998 passed by Sri N Subba Rao. Civiljudge, Senior Division, Kolar Gold Fields in Appeal No. 16 of 1998 condoning the delay of almost sixty-five days in filing of the appeal in exercise. of jurisdiction under Section 5 of the LIMITATION ACT, 1963. Feeling aggrieved from that order, the plaintiff-respondent has come up in revision under Section 115 of the Code of civil Procedure.

(2.) THE learned Counsel for the revision petitioner contended that in view of the provisions of Order 41 Rule 3a. the Court below should not have considered the application under Section 5 of the LIMITATION ACT, 1963 nor should have granted any interim order He contends that Rule 3a is mandatory in its nature and it was the duty of the Appellate Court to have dismissed the appeal when the appeal was filed without accompanying an application under Section 5 of the LIMITATION ACT, 1963 The learned Counsel further contended that the finding regarding sufficient cause is also erroneous and it needs to be set aside The learned counsel further contended that the appellant had filed the appeal stating that the appeal is in time. When objections were raised on the ground of limitation, the respondent filed the application for condonation of delay. So he was not entitled to exercise the discretionary jurisdiction. Learned Counsel contended that the delay has not been properly explained day to day. Learned Counsel further contended that the condonation of delay was sought on the ground of Advocate's mistake, but there is no affidavit of Advocate concerned. The contentions of the learned Counsel for the revision petitioner is hotly contested by Sri. B. Veerappa appearing on behalf of the respondent. On behalf of the respondent it has been contended justice is the motto as per Constitution. Learned Counsel contended that no persons should be deprived to the recourse of a remedy under law on account of disability, economic or otherwise. He submitted that if the counsel himself calculated the limitation taking it from the date of his knowledge and stated the appeal to be in time, the mistake may be bona fide and party should not be made to suffer nor should be denied justice. Learned counsel for the respondent contended that the counsel believed the appeal filed to be in time as such the appeal was filed without an application under Section 5 of LIMITATION ACT, 1963 and justice being the motto and basic objective and rules of procedure being sub-servient to the cause of justice, should be interpreted in a way that they may advance justice and must not mar the cause and course of justice. He submitted that though it is required that the appeal should be filed along with an application under Section 5. this rule does not bar the jurisdiction of the Court to consider to exercise its sub-jurisdiction under Section 5 of LIMITATION ACT, 1963 if the material on record itself disclosed sufficient cause. The learned Counsel contended that Rule 3a being procedural, has to be interpreted taking the circumstances in view of the basic concept of justice under the Constitution to the parties. He further contended that rule 3-A, Order 41 CPC does not itself provide that if appeal is not accompanied by Section 5 application, it has to be may be dismissed instantaneously, simply on the ground that the appeal is not accompanied by the application. The learned Counsel further contended that even if in its view there was need of an application for condonation of delay under Section 5 of LIMITATION ACT, 1963 and material on record being not by itself disclosing, it to be in tune or cause for delay it had full jurisdiction to call upon the party to file application with affidavit. It is only in cases, the learned counsel contended, that inspite of direction to remove the defect by filing an application the party concerned or the appellant concerned does not remove the defects by filing any application under Section 5, no doubt the Court has to dismiss the appeal. But it is not that, outright the appeal should be dismissed The learned Counsel further contended that the finding recorded as to the sufficient cause is really a finding of fact and does not call for interference under Section 115 of the Code of Civil Procedure. He further contended that the appeal is yet to be decided and it cannot be said that the defendant cannot be substantially compensated for the injury on delay being condoned if it is so necessary At the most, the plaintiff-respondent before the Court below, that is the present revision petitioner could have claimed compensation in the form of cost learned Counsel contended in that view of the matter the order impugned is, really making available and is of providing opportunity of hearing to the parties.

(3.) I have applied my mind to the contentions raised by the learned Counsel for the parties. Section 115 of the Code of Civil Procedure confers powers of supervisory nature and exercise jurisdiction of the Court under section 115, C. P. C. by this Court can be made only on establishment of jurisdictional error having been committed. But in every case of jurisdictional error even being shown, this Court is not bound to interfere with the order of the court below unless it is shown that justice is going to sufferer injustice is going to be caused to the party aggrieved coming to this Court keeping these basic principles in view, I proceed to examine the contentions raised by the learned Counsel for the parties. The first contention is definitely too technical one and it is one of the trite principles of law that technicalities should not be made to obstruct the course of justice. Rules or procedures are meant to be followed and adhered, no doubt, keeping in view the main object of imparting justice to the people, that is, to serve the cause of justice. Keeping this principle in view, let us examine Order 41 Rule 3a along with other provisions of the law in this regard 4 Section 3 of the LIMITATION ACT, 1963 no doubt that subject to Sections 4 to 24, provides that every suit instituted, appeal preferred and application made after the period prescribed therefor shall be dismissed although limitation has not been set up by way of defence. This power of the Court to dismiss the appeal is subject to the provisions of Sections 4 to 24 including Section 5 of the Limitation act Section 5 of the LIMITATION ACT, 1963 provides that any appeal or any application other than an application under any provision of Order 21 of the Code of Civil Procedure, can be admitted after prescribed period, if the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation to Section 5 reads and provides that the fact that appellant or applicant was misled by any order, practice or judgment of the High Court in ascertaining or in computing the prescribed period, may be sufficient cause within the meaning of this section. So this section confers jurisdictional power on the court to admit the appeal even if it is time barred, provided it is satisfied by the appellant or applicant that he had sufficient cause for not preferring the appeal in time. So, this confers a power on the Court to admit the appeal even if time barred, if sufficient cause for delay appears to the Court for admitting the appeal after holding that appeal is filed in time. But this section does not in express terms requires any application under Section 5 of Limitation act to be made in every case. If the circumstances appear from the record which consti tutes in its opinion sufficient cause for admitting the appeal then the Court can reasonably find that the appeal is in time, it can suo motu exercise the power without application for condonation of delay being made, but of course after having recorded a finding as to satisfaction that sufficient cause existed the provisions of Order 41, Rule 3-A has to be interpreted keeping this position of law existed in view. Order 41, Rule 3a reads as under :-