Order XLI Rule 3-A CPC | Failure To File Appeal With Application For Condonation Of Delay Curable Defect, Can Be Filed Subsequently: J&K&L High Court

"The Deficiency of not accompanying application for condonation of delay is curable defect and if required such an application can be filed subsequently and the appeal can be treated as presented in accordance with the requirem Rule 3A of Order XLI CPC".

The bench of Justice Vinod Chatterji Koul was hearing a plea under Article 227 in terms of which the petitioner assailed an order passed by Principal District Judge, Bandipora on an Interim Application arising out of an appeal. Prayer was made for dismissal of appeal and application for grant of interim relief filed by respondent before appellate court, whereby the Principal District Judge had admitted such appeal after more than 2 years and set aside an interim order of the court below, without first condoning the period of delay.

The petitioners in their plea contended that for condoning delay, an independent motion on behalf of respondent had not come up with the appeal which was a must in law . Petitioners argued that the Appellate Court was unmindful of Limitation Act providing 90 days time in preference of appeals and more especially interim order being subject to objections that has been challenged therein, has entertained appeal, passing impugned order.

The petitioner further submitted that the appellate Court without first condoning delay entertained, diarised and admitted appeal and that such process and exercise undertaken by the Appellate Court is in contravention to provisions of Order XLI Rule 3A (3) because same bars granting order of stay/ interim direction in a time-barred-appeal unless delay is condoned. Two long years' delay has not been talked of by the Appellate Court muchless noticed and/or requisitioned by the Appellate Court while passing impugned order, the counsel argued.

Adjudicating upon the matter, Justice Koul observed that filing an appeal within a period of limitation is the rule and condonation of delay is an exception and hence while condoning the delay, the Courts must be cautious and only on genuine reasons, the Courts are empowered to condone the delay. The power of discretion to condone the delay is to be exercised judiciously and by recording reasons and the reasons furnished for condonation of delay must be candid and convincing. So, the condonation of delay cannot be claimed as a matter of right and only on genuine reasons, the delay is to be condoned and not otherwise. In the event of condoning the huge delay in a routine manner, the Courts are not only diluting the law of limitation but unnecessarily encouraging this kind of lapses, the bench explained.

Deliberating on the stated position of law the bench observed that an appeal, barred by time, cannot be entertained by a Court without condoning delay and Order XLI Rule 3-A CPC relates to application for condonation of delay.

"If an appeal is not accompanied by an application as mentioned in Subrule (1) of Rule 3-A, what would be consequence thereof. It must be noted that the Code indicates in Rule 3 (1) of Order XLI that where an appeal is not drawn up in the manner prescribed, it may be rejected or returned to appellant for the purpose of being amended within a time to be fixed by the Court or be amended then and there. It is to be noted that there is no such rule prescribing for rejection of an appeal in a case where the appeal is not accompanied by an application for condoning delay" the bench recorded.

The bench further added,

"If an appeal is filed 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 appellant subsequently files an application to condone delay before the appeal is rejected, the same should be taken up along with the already filed appeal. Only then the court can treat the appeal as lawfully presented. There is nothing wrong if the court returns the 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"

However, in the same breath, the court clarified that an unintentional lapse from a litigant should not usually cause doors of the judicature permanently closed before him. The effort of the Court should not be one of finding means to pull down 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, the bench underscored.

"From the above it is evident that deficiency of not accompanying application for condonation of delay is curable defect and if required such an application can be filed subsequently and the appeal can be treated as presented in accordance with the requirement contained in Rule 3-A of Order XLI CPC" the bench maintained.

Allowing the petition partly and setting aside the order passed by the Principal District Judge, the bench gave the respondent liberty to move an application for condonation of delay in filing the appeal.

Case Title : Bashir Ahmad Bhat Vs Ghulam Ahmad Bhat

Citation : 2022 LiveLaw (JKL) 160

Click Here To Read/Download Judgment