STATE OF M.P. Vs. PRADEEP KUMAR

JUDGEMENT

(1.) The learned counsel also contended that under Order 41 Rule 3 -A, CPC the requirement is that when an appeal is presented after the expiry of the period of limitation, it shall be accompanied by an application supported by affidavit. He contended that it was brought to the notice at the time when the appeal was admitted that the appeal was time barred. No notice of application was also given nor application for condonation of delay was moved along with the appeal. The learned counsel for the State contended that there was calculation mistake and the appeal was within time and no application was given under Section 5 of the Limitation Act. He supports his contention by pressing into service AIR 1986 Karnataka 199 (State v. Magappa) where it was laid down that on non -compliance with R.3 -A(1) appeal should not be dismissed.

(2.) I have considered the contention raised before me by the learned counsel for the parties. It appears that at the time when the order dated 13.1.97 was passed, the learned counsel for the appellants argued on admission of the appeal only. He did not bring to the notice of the Court that there was an application for condonation of delay and the appeal was admitted, though there was a delay. It has to be noted that memo of appeal was filed on 10.12.96 and it was not accompanied by any application for condonation of delay. Thereafter an application purporting to be under Section5 of the Limitation Act was moved on 6.1.1997. A perusal of provision of Order 41 rule 3 -A shows that when an appeal is presented after the expiry of the period of limitation specified therefore, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period. Similar question had arisen before this Court in First Appeal No. 107/95 decided on 3.8.95 and this Court took the view that as the appeal was not accompanied with application for condonation of delay and affidavit, stating the fact, the appeal was not competent. In view of this specific finding of the learned Single Judge, the decision of the Karnataka High Court cannot help the learned counsel for the appellants. I, therefore, allow the application recall the order dated 13.1.1997 and dismiss the appeal as incompetent.