SHANKAR RAM RAVIDAS Vs. SHYAM NANDAN SAHAY

JUDGEMENT

(1.) This revision application has been filed against the order dated 27.8.2010 passed by the learned District Judge, Hazaribagh, in connection with Misc. Appeal No. 22 of 2008 whereby the learned District Judge has dismissed the appeal on the ground that compliance of order XLI rule 3 A of the Code of Civil Procedure, was not complied with.

(2.) It is submitted that the Misc. Appeal No. 22 of 2008 was filed by the petitioner on 17.12.2008 under Order XLIII rule 1 of the Code of Civil Procedure for setting aside the order of abatement and petition under section 5 of the Limitation Act was filed on 15.1.2009. The petitioner has assigned valid reasons in the application under section 5 of the Limitation Act, but the learned Dist. Judge has wrongly considered the observations made by this Court in the case of National Insurance Co. Ltd Vs. Smt Runiya Binha & Ors, 2008 3 JCR 456) and dismissed the appeal. It is submitted that the provision contained under order XLI, rule 3A, C.P.C. is not mandatory, rather it is directive. The judgment relied upon by the learned court below was passed in prevailing circumstances. In that very case, adjournments after adjournments were given to the appellant to remove the defects pointed out by the office including the defect that petition under section 5 of the Limitation Act was not filed along with the memo of appeal. Specific direction given by the High Court to the appellant to file petition under section 5 of the Limitation Act was not complied with in time and, therefore, considering the situation that appeals are being filed without accompanied by a petition under section 5 of the Limitation Act have been causing delay in disposal of the matter and therefore this Court in para 6 of the judgment National Insurance Co. Ltd Vs. Smt Runiya Binha & Ors, 2008 3 JCR 456 held that if the time barred memo of appeal is filed without accompanying the limitation petition, then the Court must take it strictly and, in exceptional circumstances, delay is to be condoned if the limitation petition is filed subsequent to the filing of the memo of appeal.

(3.) Learned counsel appearing on behalf of the opposite party has vehemently opposed the prayer and submitted that if the memo of appeal is filed after delay, then petition under section 5 of the Limitation Act for condoning the delay must be filed along with the memo of appeal as prescribed under order XLI rule 3 A of the Code of Civil Procedure. It is further argued that the limitation petition filed by the petitioner was not disclosing valid grounds and therefore the learned District Judge has rightly refused to condone the delay.