M DAS GUPTA Vs. PRAKASH K SHAH

JUDGEMENT

(1.) THE Appellate Bench below negatived the case of the petitioner on two grounds. THE Appellate Bench held that the application for condonation of delay was not presented along with the appeal memo and under the provisions of Order XLI, Rule 3-A of the Code of Civil Procedure an appeal could not be entertained if it is not accompanied by an application for condonation of delay. Secondly, on merits also the Appellate Bench found that the petitioner had failed to establish that there was sufficient cause for not preferring the appeal within time by proving that he was induced by the advice to prefer an appeal belatedly. It is against this order of the Appellate Bench that the present petition under Article 227 of the Constitution has been preferred.

(2.) MR. Deshmukh, the learned Advocate appearing in support of this petition has contended that the view of the Appellate Bench below that the provisions of Order XLI, Rule 3-A of the Code insist that an application for condonation of delay must accompany appeal memo is erroneous. Though the language of Order XLI, Rule 3-A of the Code is mandatory it must be interpreted to mean that no appeal could be entertained unless on an application made for condonation of delay the delay is condoned. I am inclined to agree with MR. Deshmukh. It is true that Rule 3-A of Order XLI mentions (This provision has been inserted by Act 104 of 1976) that when an appeal is presented after the expiry of the period of limitation specified thereof the appeal must be accompanied by an application making out a case for condonation of delay. In my opinion, this does not preclude the appellant from presenting an application for condonation of delay when it is brought to his notice that the appeal has been filed beyond time. I am also of the opinion that despite the apparently peremptory language of Rule 3-A of Order XLI of the Code the appeal preferred after the expiry of period of limitation cannot be dismissed summarily on the ground that the application for condonation of delay does not accompany the memo of appeal. The obvious object of making such a provision is to see that the appeal will not be heard unless delay in the filing of the said appeal is condoned after proper notice to the respondent. This is evident from the provisions contained in sub-rule (2) of Order XLI, Rule 3-A of the Code. This sub-rule provides that where the Court does not reject the application for condonation of delay summarily notice of the said application should be issued to the respondent and it is only after the said application is finally decided that the Court can proceed to dismise or admit the appeal under the provisions of Rule 11 or Rule 13 respectively of Order 41 of the Code. This must be so because several times it might be the case of the appellant that there is no delay at all and in such a case after examination of the papers if the office of the Appeal Court finds that there is delay then an application for condonation of delay may legitimately be presented by the appellant. A proper construction of the procedural rule like this must take into account contingency such as this. I am, therefore, of the opinion that under the provisions of Order XLI. Rule 3-A an appeal presented after the expiry of the period of limitation cannot be dismissed, on the ground that the application for condonation of delay does not accompany the memo of appeal.