MAYA DEVI Vs. M K KRISHNA BHATTATHIRI

JUDGEMENT

(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 Ker LT 306) : (AIR 1980 Ker 173) 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 represented with the petition to excuse the delay. When the respondent entered appearance on receipt of notice of the delay petition he took up a preliminary objection that there is no valid presentation of the appeal or the petition to excuse delay in that the memorandum of appeal was not accompanied by the application to excuse the delay as provided for under Order 41, Rule 3A C.P.C. 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 Ker LT 306) : (AIR 1980 Ker 173). Rule 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 if 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. If this is not the case then Rule 15 (2) of the High Court Rules which directs the return of the memorandum of appeal to cure the defect and represent the same within a period not exceeding 15 days will be meaningless. There is a similar provision in the Civil Rules of Practice, namely, Rule 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 represented 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 41, Rule 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.C. 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, Rule 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 Ker LT 455). A Division Bench of this Court after considering the various provisions, the decision of the Supreme Court in Jagat Dhish v. Jawahar Lal (AIR 1961 SC 832) and the earlier decision of Justice Madha-van Nair in Raman Adiodi v. Raman (1961 Ker LT 874) adopted the following passage from the Supreme Court case as a principle of general application to govern all defective proceedings filed in court (at p. 837):-

(2.) THE further question is when should the appeal be deemed to be validly presented. Is it on the day it was originally presented or on the day when the petition to excuse delay is also filed? In the matter of payment of court-fees there is a provision in Section 5 of the Kerala Court-fees Act and Section 149 of the C.P.C. to the effect that if a proceeding is not sufficiently stamped and the defect is cured later it will be deemed that there is no defect from the date of the original presentation of the proceeding. Here the court should have passed orders on the memorandum of appeal if all the papers to be filed along with it were not filed. But once the court returns the same for representation after supplying the deficiency or curing the defect it must mean that permission is granted by the court for that purpose and once that is complied with it should be deemed to have been presented on the day it was originally filed. This is on the same principle as is provided for in Section 149 C.P.C. and Section 5 of the Court-fees Act. It follows that in this case when the defect was cured as directed by this Court the date of the presentation of the appeal shall be deemed to be the date on which the appeal memorandum was originally filed in court. In this view the preliminary objection of the respondent is overruled. Post the application for hearing on the merits two weeks after.