It is common knowledge that complaints, suits, appeals, revisions & other modes of redressal filed before Courts/ Authorities are filed beyond the statutory timelines and due to inadvertence applications for condonation of delay are not filed along with such suits/appeals/revisions etc. A Question therefore arises whether in the absence of the application for delay, are the belated statutory remedies maintainable.

In other words, whether the deficiency arising due to non-filing of application for condonation of delay can be cured or not by the Courts. Either the statutory remedy ought to be rejected as being time barred or the Court should ask the plaintiff/ appellant/ revisionist for curing the defect by filing the application for condonation of delay and explaining what prevented them from filing the appeal/suit/ revision etc. within the statutory time.

It is argued that an application for condonation of delay is a mandatory requirement under Order 41 Rule 3-A of the Civil Procedure Code (CPC). The Apex Court & High Courts in a catena of cases categorically held that a deficiency of not accompanying the application for condonation of delay is curable defect and such an application can be filed subsequently for regularisation. The Courts emphasized the need for substantial justice over technicalities.

It would be trite to reproduce Order 41 Rule 3-A of the Civil Procedure Code (CPC) which reads as under:
3-A. Applications 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 an 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 ort 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 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.

It would be relevant to refer to the landmark case of State of M. P. and Anr. Vs. Pradeep Kumar and Anr. (2000) 7 SCC 372 wherein the Apex Court dealing with the controversy in hand observed thus:

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.

The Court further observed that the Court is under bounden duty to see that the unintentional lapse on the part of a litigant should not normally cause the doors of the judicature permanently closed before him. The Court held thus:

'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 case 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 Dormientiobus 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.

The Apex Court further explained the object of enacting Rule 3-A in Order 41 of the Code and finally held thus:
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.

It would be apropos to refer to Jagat Dhish Bhargva v. Jawahar Lal Bhargava and Ors., AIR (1961) SC 832 wherein the Apex Court while considering the procedure to be followed by the Court in 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.I. 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.

The Courts have unreservedly followed the dictum of Pradeep Kumar (supra) in a catena of cases. In Madhao S/O Somaji Sarode vs Jotiba Dhyan Upasak Shikshan Sanstha 2004(6)BOMCR 684, 2004(3)MHLJ 1078, the Bombay High Court held thus:

10. It can thus be seen that the aforesaid provisions do not prescribe for rejection of memorandum of appeal in the case where the appeal is not accompanied by the application for condoning the delay. On the contrary, it can be seen from the Sub-section (3) of Section 9 that the power is given to the Tribunal and that the Tribunal may entertain an appeal made to it after the expiry of period of thirty or sixty days, as the case may be, if it is satisfied that the appellant has sufficient cause for not preferring the appeal within that period.

It can thus be seen that a formal application for condonation of delay is also not necessary. The learned School Tribunal, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within that period may condone the delay and entertain the appeal. I, therefore, see no reason as to why the law laid down by the Apex Court in the case of State of M. P. and Anr. v. Pradeep Kumar and Anr. (cited supra) would not be applicable to the facts of the present case.

The Madhya Pradesh High Court in Man Khan vs Dr. Keshav Kishore AIRONLINE 2019 MP 213 following Pradeep Kumar (supra) held as follows:

Since neither the learned First Appellate Court returned the appeal to the appellant nor gave any chance to the appellant to file necessary application to condone the delay in filing the appeal, I am of the view that on the basis of decision of Supreme Court State of M.P. vs. Pradeep Kumar (supra), the impugned judgment cannot be said to be in accordance with law.''

It would be worthwhile to refer to P. Raju vs U. Ram Babu (2013) 0 Supreme (Madras) 632 wherein the Madras High Court following Pradeep Kumar (supra) held thus:

In the said decision, this Court, following the decision of the Honourable Supreme Court reported in State of Madhya Pradesh vs. Pradeep Kumar) 2000 (4) CTC 434 held that the complaint cannot be quashed inasmuch as there is no procedural irregularity and the defect complained of is a curable defect. In the present case, the original delay of 6 days in filing the complaint on 02.04.2009 is a curable defect and such defect can always be considered and condoned by the court.

In the case of Mohammad Amin Mir & Ors vs State And Ors decided on 4 December, 2018 the Jammu & Kashmir High Court followed Pradeep Kumar (supra) & observed thus:

11. I think the above judgment clinches the issue. In absence of an application seeking condonation of the delay in filing the appeal, it can safely be said that the appeal that was filed by the private respondents before the Joint Agrarian Reforms Commissioner, (Dy. Commissioner), Kupwara, was not lawfully presented and, therefore, the appellate authority could not have decided it either way. The only course available to the appellate authority, in terms of the above decision of the Supreme Court, was to return it to the private respondents to be re-presented by them alongwith the requisite application, if they had so chosen.''

The Delhi High Court in Jai Narain Mathur & Ors vs Jai Prakash Mathur (2016) 228 DLT 515 reiterated the dictum of Pradeep Kumar (supra) and held thus:

(xi) Supreme Court, in State of Madhya Pradesh Vs. Pradeep Kumar (2000) 7 SCC 372 has held that non-filing of an application for condonation of delay along with Memorandum of Appeal is not fatal. It was reasoned that the effect 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.

It would be apposite to refer to Shiv Kumar Birla vs Nagar Palika Bundi And Anr decided on 21 March, 2012 by the Rajasthan High Court, wherein it was held as under:

Latter recourse is adopted in view of decision of the Supreme Court in State of M.P. & Anr. Vs. Pradeep Kumar & Anr. [(2000) 7 SCC 372]. The appeal is ordered to be returned for proper presentation along with application under Section 5 of the Limitation Act.

The dictum of Pradeep Kumar (supra) has been followed by the High Courts in hundreds of cases. Thus, it is no longer Res Integra that if an appeal is time barred, the court should either return the memorandum of appeal to the appellant to submit it along with an application under Section 5 of the Limitation Act or should provide a chance to file an application for condonation of delay.

Written By: Inder Chand Jain
Phy no: 8279945021, Email: [email protected]