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PETITIONER: NAVINCHANDRA N. MAJITHIA

       Vs.

RESPONDENT: STATE OF MAHARASHTRA & ORS.

DATE OF JUDGMENT:       04/00/2000

BENCH: K.T. THOMAS

JUDGMENT:

THOMAS, J.

Leave granted. L...I...T.......T.......T.......T.......T.......T.......T..J

   A  learned  Single  Judge of the High  Court  of  Madhya Pradesh  held that an appeal filed out of time unaccompanied by  an application to condone the delay is liable to be axed down  at  the  threshold and hence the situation  cannot  be rectified  by  filing  an application at  any  later  stage. Learned  Single  Judge rejected a second appeal on the  sole ground  that  the  delayed   appeal  was  presented  without accompanying  an application to condone the delay.  An order so  passed by the High Court is now being assailed before us by  special  leave.   A suit was filed  by  the  respondents against the State of Madhya Pradesh and one of its Sales Tax Officers  for  a  decree of declaration of their  title  and consequential  injunction  in  respect   of  a   residential building.   The suit was dismissed on the ground of want  of jurisdiction to entertain the suit.  The plaintiffs filed an appeal  before the District Court against the dismissal  and the  District Judge reversed the decision of the trial court regarding  jurisdiction  and remanded the case to the  trial court for disposal of the suit on merits.

   On  10.12.1996  the  appellants filed  a  second  appeal before  the  High Court challenging the judgment and  decree passed by the District Judge in the first appeal.  There was some delay in filing the said second appeal, but when it was presented  no application for condoning the delay was  filed by   the  appellants  along   with  the  appeal.    However, appellants  filed such an application under Section 5 of the Limitation Act on 6.1.1997.

   On  31.1.1997  the  High  Court  issued  notice  to  the respondents  on  the  appeal,  without  deciding  the  delay application.  Long thereafter the respondents moved the High Court  for  disposal of the appeal on the ground that it  is barred by limitation.

   Learned  Single Judge of the High Court allowed the said motion  of  the respondents and dismissed the second  appeal filed by the appellants by observing thus:

   A  perusal of provision of order 41 rule 3A shows  that when  an appeal is presented after the expiry of the  period of limitation specified therefor, it shall be accompanied by an  application  supported  by affidavit setting  forth  the

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facts  on  which the appellant relies to satisfy  the  court that  he had sufficient cause for not preferring the  appeal within such period.

   The  appellants cited before the learned Single Judge  a decision  of the Karnataka High Court in State of  Karnataka vs.   Nagappa  (AIR 1986 Karnataka 199) but he  declined  to follow the dictum therein on the premise that another Single Judge  of  the M.P.  High Court had taken a  different  view earlier  regarding  the legal consequences of not filing  an application for condoning the delay along with the filing of the  appeal.  Learned Single Judge has stated the  following for the purpose of meeting the aforesaid contention advanced by the appellants.

   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.

   Learned  counsel  for the appellants contended that  the High  Court has placed a very narrow construction on Rule 3A of  Order 41 of the Code of Civil Procedure (for short  the Code)  which  resulted in pre-empting the right  of  appeal conferred by the statute, because the court had the power to condone  the delay on showing reasonable explanation for it. In order to decide the said question we have to make a short survey of the relevant Rules in the Code.

   Order 42 Rule 1 of the Code says that the rules in Order 41  shall apply, so far as may be, to appeals from appellate decrees.   Order  41 Rule 1 says that every appeal shall  be preferred  in  the  form  of  a  memorandum  signed  by  the appellant  or  his pleader and presented to the court or  to such  officer as it appoints in that behalf.  It is  further required  that the memorandum shall be accompanied by a copy of the decree appealed against.  A copy of the Judgment must also  be  filed  along with the said memorandum  unless  the appellate  court  dispenses with it.  Rule 2 is not of  much importance on the question involved in this appeal and hence we  may skip it and proceed to Rule 3 which says that where the  memorandum  of  appeal is not drawn up  in  the  manner hereinbefore  prescribed, it may be rejected or be  returned to  the appellant for the purpose of being amended within  a time to be fixed by the Court or be amended then and there. It  is  Rule  3-A of Order 41 of the Code  (which  rule  was inserted  in  the Code by CPC Amendment Act, 1976) which  is now  sought  to be applied and hence that Rule is  extracted below:  3-A Application for condonation of delay.- (1) When an  appeal  is presented after the expiry of the  period  of limitation specified therefor, 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.  (2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice  thereof  shall be issued to the respondent  and  the matter  shall  be  finally decided by the  Court  before  it proceeds  to deal with the appeal under rule 11 or rule  13, as  the case may be.  (3) Where an application has been made under  sub-rule  (1), the Court shall not make an order  for

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the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under rule 11, decide to hear the appeal.

   What  is  the  consequence  if such  an  appeal  is  not accompanied  by an application mentioned in sub-rule (1)  of Rule  3-A?  It must be noted that the Code indicates in  the immediately  preceding  rule  that the  consequence  of  not complying  with  the  requirements in Rule 1  would  include rejection  of  the memorandum of appeal.  Even  so,  another option is given to the court by the said rule and that is to return  the  memorandum  of  appeal  to  the  appellant  for amending  it within a specified time or then and there.   It is  to  be noted that there is no such rule prescribing  for rejection of memorandum of appeal in a case where the appeal is  not  accompanied  by an application  for  condoning  the delay.   If the memorandum of appeal is filed in such appeal without  accompanying  the application to condone delay  the consequence cannot be fatal.  The court can regard in such a case that there was no valid presentation of the appeal.  In turn,  it means that if the appellant subsequently files  an application  to  condone  the  delay before  the  appeal  is rejected  the same should be taken up along with the already filed  memorandum of appeal.  Only then the court can  treat the appeal as lawfully presented.  There is nothing wrong if the  court  returns the memorandum of appeal (which was  not accompanied  by  an  application explaining  the  delay)  as defective.   Such defect can be cured by the party concerned and present the appeal without further delay.

   No  doubt  sub-rule  (1) of Rule 3-A has used  the  word shall.   It  was  contended that employment  of  the  word shall  would  clearly  indicate that  the  requirement  is peremptory  in  tone.   But  such  peremptoriness  does  not foreclose a chance for the appellant to rectify the mistake, either  on  his own or being pointed out by the court.   The word  shall  in  the  context need be  interpreted  as  an obligation  cast  on  the  appellant.   Why  should  a  more restrictive  interpretation be placed on the sub-rule?   The rule  cannot  be interpreted very harshly and make the  non- compliance punitive to appellant.  It can happen that due to some  mistake  or  lapse an appellant may omit to  file  the application (explaining the delay) along with the appeal.

   It  is  true that the pristine maxim  Vigilantibus  Non Dormientibus  Jura  Subveniunt (Law assists those  who  are vigilant  and  not those who sleep over their rights).   But even  a  vigilant litigant is prone to commit mistakes.   As the aphorism to err is human is more a practical notion of human   behaviour   than  an    abstract   philosophy,   the unintentional  lapse  on the part of a litigant  should  not normally  cause  the  doors of  the  judicature  permanently closed  before  him.  The effort of the court should not  be one   of  finding  means  to   pull  down  the  shutters  of adjudicatory  jurisdiction before a party who seeks justice, on  account  of  any mistake committed by him,  but  to  see whether  it is possible to entertain his grievance if it  is genuine.

   Crawford  on Statutory Construction has stated thus at Page 516, Art.  261 in the 1940 Edn.  :

   The  question  as to whether a statute is mandatory  or directory depends upon the intent of the legislature and not upon  the  language  in which the intent  is  clothed.   The

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meaning  and  intention of the legislature must govern,  and these  are to be ascertained, not only from the  phraseology of the provision, but also while considering its nature, its design,  and  the  consequences   which  would  follow  from construing it the one way or the other.

   It  is  apposite to point out that the said passage  has been  quoted  with  approval  by this Court  in  Govind  Lal Chaggan  Lal  Patel  vs.   The  Agriculture  Produce  Market Committee and ors.  (AIR 1976 SC 263)

   In  Jagat  Dhish Bhargava vs.  Jawahar Lal Bhargava  and ors.   (AIR  1961 SC 832) this Court while  considering  the procedure  to  be  followed  by  the  Court  on  receipt  of defectively filed appeals made the following observations:

   It  would  thus be clear that no hard and fast rule  of general  applicability  can  be laid down for  dealing  with appeals  defectively  filed  under O.41,  R.1.   Appropriate orders  will  have  to  be   passed  having  regard  to  the circumstances  of each case, but the most important step  to take  in cases of defective presentation of appeals is  that they  should  be carefully scrutinised at the initial  stage soon  after  they  are filed and the appellant  required  to remedy the defects. (para 14)

   Rule  3-A was inserted in the Code thereafter and  hence the  question had to be considered afresh.  During the early period,  following the insertion of Rule 3-A in Order 41  of the  Code,  some  High  Courts   have  taken  a  very  rigid interpretation  and non-compliance of it even at the initial stage  was held fatal.  A learned Single Judge of the Kerala High  Court  (Khalid, J.  as he then was) held the  view  in Padmavathi  vs.  Kalu (AIR 1980 Kerala 173) that where  the petition  for  condonation of delay in filing of appeal  has been  filed  subsequent  to  the filing of  the  appeal  the petition  is liable to be dismissed. A Single Judge of  the Karnataka  High Court followed the said decision in Madhukar Daso  Deshpande vs.  Anant Nilkantha Deshpande & ors.   (AIR 1984  Karnataka 40) and held that in view of the  mandatory provision  of  Order  41  R.3-A   CPC  the  application  for condonation  of  delay shall be accompanied with the  appeal memo,  if the appeal is presented beyond time.  There is  no occasion  for  the  Court to say that  the  application  for condonation of delay might be entertained later and there is no  occasion  for  the  appellant to request  that  such  an application  should  be received even at this stage  in  the interest of justice.

   A   Division  Bench  of  the   Kerala  High  Court   has subsequently  overruled  the dictum laid down by the  Single Judge  in the above case, (vide Maya Devi vs.  M.K.  Krishna Bhattathiri  and anr., AIR 1981 Kerala 240).  The same  fate had  fallen  on the view adopted by the Single Judge of  the Karnataka  High  Court  in Madhukars case when  a  Division Bench has subsequently overruled it, (State of Karnataka vs. Nagappa, AIR 1986 Karnataka 199).  N.  Venkatachala and S.A. Hakeem,  JJ (as they then were) dealt with the background of introducing  Rule  3-A  in Order 41 of the  Code  and  after discussion  held that sub-rule (1) of Rule 3-A is mandatory. However,  learned Judges pointed out that sub- rules (2) and (3)  have been employed by the legislature for  highlighting the  purpose of introducing such a new rule.  The  following passage  from  the  judgement of the Division Bench  of  the Karnataka High Court can usefully be quoted in this context:

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A  combined reading of sub-rules (1) and (2) of R.3A  makes it  manifest that the purpose of requiring the filing of  an application  for  condonation  of delay under  sub-rule  (1) along  with a time barred appeal, is mandatory, in the sense that  the  appellant cannot, without such application  being decided,  insist  upon  the Court to hear  his  time  barred appeal.   That was the very purpose sought to be achieved by insertion  of  sub-rules (1) and (2) of R.3A  becomes  clear from  the  legislative history of new R.3A to which we  have already adverted.

   We may also point out that a Division Bench of the Patna High  Court has adopted the same view even earlier in  State of  Bihar & ors.  vs.  Ray Chandi Nath Sahay and ors.   (AIR 1983 Patna 189).

   The  object of enacting Rule 3-A in Order 41 of the Code seems  to  be two-fold.  First is, to inform  the  appellant himself  who filed a time barred appeal that it would not be entertained  unless  it  is accompanied  by  an  application explaining  the  delay.   Second is, to communicate  to  the respondent a message that it may not be necessary for him to get  ready to meet the grounds taken up in the memorandum of appeal  because  the court has to deal with application  for condonation  of delay as a condition precedent.  Barring the above  objects, we cannot find out from the rule that it  is intended  to  operate as unremediably or irredeemably  fatal against  the appellant if the memorandum is not  accompanied by any such application at the first instance.  In our view, the  deficiency  is  a curable defect, and if  the  required application  is filed subsequently the appeal can be treated as presented in accordance with the requirement contained in Rule 3-A of Order 41 of the Code.

   In  the  result we allow this appeal and set  aside  the impugned judgment.  The matter shall now go back to the High Court  for disposal of the application to condone the  delay in  filing the second appeal.  If the explanation was  found satisfactory  to the High Court the second appeal will  have to  be  disposed of in accordance with law.  This appeal  is disposed of accordingly.