If Appeal Is Preferred Beyond Limitation, Notice Must Be Issued To Respondent; Court Can't Directly Proceed On Merits: Patna High Court

The Patna High Court has made it clear that if an appeal is filed beyond the period of limitation, a notice of hearing is to be mandatorily issued to the respondent party.

Single bench of Justice Arun Kumar Jha added that appellate court cannot proceed with the appeal on merits keeping the issue of limitation pending till final judgment. It reasoned,

"...issuance of notice to the respondent is for giving an opportunity to the respondent to make submission on the point of limitation since a vested right accrues to him. It is not a mere formality and Order 41 Rule 3A of the Code only states the obvious that no person should be condemned unheard. If a right has been vested in the respondents on account of expiry of limitation period, no adverse order, in the instant case, admission of the appeal, could be made in the absence of the respondents as it would violate the principles of natural justice."

Court thus allowed a petition filed under Article 227 of the Constitution against a District Court order admitting a time-barred appeal.

The petitioner had initially filed a title suit which came to be by the Sub-Judge in his favor. Aggrieved, the respondents preferred an appeal before the District Court which dismissed the appeal.

The respondents then filed a fresh appeal challenging the judgment, along with an application to condone the delay in filing. The District Judge admitted this appeal, leading the petitioner to challenge the admission order in the current petition.

The Petitioner's Counsel argued that the impugned order that if an appeal is time-barred, the court must first address the limitation issue, ensuring an opportunity for the other side (in this case, the petitioners) proceeding on merits.

In response, the Respondent's Counsel argued that there is no specific legal restriction preventing the appellate court from considering the appeal alongside the application for condonation of delay. He also submitted that the law does not prohibit the filing of a fresh appeal if a previously filed appeal was dismissed for default.

The Court at the outset expounded on Sections 96 and 107 of the Code of Civil Procedure, underscoring that a conjoint reading of the aforesaid provisions makes it clear that hearing of appeal under Section 96 of the Code would be subject to such conditions of limitations as prescribed which includes conditions under Order 41 Rule 3A of the Code.

The Court emphasised, “If an appeal is filed after expiry of the period of limitation specified therefor, the same shall be accompanied by an application supported by affidavit stating the facts on which the appellant relies to satisfy the court that he had sufficient cause for not preferring the appeal within such period.”

“If the court is of the view that application should not be rejected without issuance of notice to the respondent, the notice shall be issued to the respondent and thereafter the matter could be dealt with under Order 41 Rule 11 or Order 41 Rule 13 of the Code as the case may be. The use of word shall in Order 41 Rule 3A (2) of the Code makes the provision mandatory,” the Court added.

The Court also noted that while a subsequent appeal may be filed if a previous appeal is dismissed by default, the new appeal must adhere to limitation rules. The Court acknowledged that the first appellate court had not been informed of the previously filed appeal and therefore, could not rule on its maintainability.

Concluding that the impugned order by the District Court in the Title Appeal was unsustainable, the Court set it aside and instructed the first appellate court to prioritize the issues of limitation and maintainability before proceeding further.

Case Title: Basil Michael Quadros v The State of Bihar & Ors.

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