RADHELAL @ RADHESHYAM Vs. BAJRANG LAL

JUDGEMENT

(1.) IN this Second Appeal preferred under Section 100 of the Code of Civil Procedure (hereinafter referred to as the Code') the appellants call in question the sustainabilty of the judgment and decree dated 9.7.1999 passed by Seventh Additional District Judge, Bilaspur in Civil Appeal No. 131 -A/98 whereby he has reversed the judgment and decree dated 8.10.1997 and 14.10.1997 respectively passed by the learned Civil Judge, Class -II, Katghora, Distt. Bilaspur. This Court on 21.01.2000, after hearing the learned counsel for the appellants issued notice to the respondent on I.A. No. 549/2000 which was filed for condonation of delay under Section 5 of the Limitation Act, 1963. It is relevant to state here the appeal was filed on 15.10.1999 and the application for coronation of delay was presented on 19.01.2000. When the matter came up for consideration with regard to issue of limitation, Mr. Umesh Trivedi, learned counsel for the respondent raised a preliminary objection that the Appeal is incompetent as petition for limitation was not filed along with memorandum of appeal. To sustantiate his submission he has placed reliance on the decision rendered in the case of Pooran Singh Rajput vs. Indira Rajput,, 1997 (I) MPU 280.

(2.) MR . A.N. Choubey, learned counsel for the appellants while admitting the factual position submitted that non -filing of the application for condonation of delay alongwith memorandum of appeal does not make an appeal untenable and the provision enshrined under Rule 3 -A of Order 41 of the Code should be regarded as directory and not mandatory. In essence, his submission, is that the decision rendered in the case of Pooran Singh Rajput (supra) requires reconsideration. To appreciate the rival submissions raised at the Bar, It is apposite to refer Rule 3 -A of Order 41 of the Code. It reads as under -

(3.) FROM the aforesaid enunciation of law, it is quite clear that the learned Single Judge has already held though the procedure is mandatory in nature the provision has not envisaged dismissal of appeal. I respectfully agree with the said view. The learned Single Judge has discussed the purpose of the Rule and eventually, directed the memo of appeal to be returned to the appellant to be presented subject to the satisfaction of conditions as per the Rules. In the present case, I find the application for condonation of delay has already been filed and the respondent had taken time to file the objection. At this juncture, it is not appropriate to return the memo of appeal to be presented as petition for condonation of delay has already been brought on record. The appeal might have been initially incompetent but the Court has jurisdiction to grant time to cure the defect. As in the meantime, the defect has been cured, the matter may be listed for orders on the question of limitation.