Holding

The defect of not attaching an application for condonation of delay to a time‑barred appeal is curable and is not fatal; the appeal may be treated as duly presented if the application is filed before the appeal is rejected.

Summary

The respondents filed a suit against the State of Madhya Pradesh and a sales tax officer, which was dismissed for lack of jurisdiction. The District Judge reversed that decision, and the State filed a second appeal before the High Court but omitted the required application for condonation of delay under Order 41 Rule 3A. The High Court dismissed the appeal on that ground, even though the application was filed later. The Supreme Court held that the omission is not fatal; the appeal may be treated as properly presented if the condonation application is filed before the appeal is rejected, and the defect can be cured. Consequently, the Supreme Court set aside the High Court order, remanded the matter for disposal of the condonation application and, if satisfied, for hearing the appeal.

Issues considered

What is the consequence of filing a time‑barred appeal without the accompanying application for condonation of delay under Order 41 Rule 3A of the CPC?
Whether the defect of non‑filing the condonation application can be cured after the appeal has been presented.

Legislation cited

Code of Civil Procedure, 1908s. Order 41 Rule 3A
Limitation Act, 1963s. Section 5

Subjects

Order 41 Rule 3Acondonation of delaycivil appealprocedural defectlimitation periodstatutory interpretationcurable defect

Judgment

STATE OF M.P. AND ANR. A
v.
PRADEEP KUMAR AND ANR.

SEPTEMBER 12, 2000

[K.T. THOMAS AND R.P. SETHI, JJ.] B

Civil Procedure Code, 1908-0rder 41 Rule 3A

Second Appeal filed without application for condonation of delay--
Necessary application filed later-High Court dismissed appeal on this C ·
ground-On appeal held, consequences cannot be fatal if appeal is filed
without application for condonation of delay-c-Defect is curable by party--
Enactment had two fold object ; informing the appellant that an application
needs to be filed and communicate to the respondent that it may not he
necessary to meet the grounds taken up as application for condonation of
delay will be dealt with first-Matter remanded to High Court for disposal D
of application and the second appeal, if explanation found satisfactory.

Expression "Shall" needs be interpreted as an obligation cast on the
appellant and there is no need to place a more restrictive interpretation-
Words and Phrases.
E
Respondents had filed the original suit, which was dismissed for want
of jurisdiction. The decision was reversed in first appeal by the District
Judge. Appellants filed second appeal before the High Court. However it was
not accompanied by an application for condonation of delay as provided under
Order 41 Rule 3A CPC. The requirement was fulfilled on a later date. High F
Court dismissed the appeal on this ground itself. Hence this appeal.

Appellants contended that a very narrow interpretation had been given
to Order 41Rule3A CPC; and that the court had the power to condone the
delay on showing reasonable explanation for it.
G
Allowing the appeal, the Court

HELD : 1.1. There is no such rule prescribing fo.r rejection of
memorandum of appeal in a case where the appeal is not accompanied by an
application for condoning the delay. If the memorandum ofappeal is filed in H
235
236 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A such appeal without the accompanying 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 and if an application to condone the
delay is filed before the appeal is rejected the same should be taken up along
with the already filed memorandum of appeal. The court can then only treat
B the appeal as lawfully presented and there is nothing wrong if it returns
such a memorandum of appeal as defective. Such defect can be cured by the
party concerned and present the appeal without further delay. [240-C-E)

1.2. The object of enacting Order 41 Rule 3A CPC seems to be two-
fold. First is, to inform the appellant himself who filed a time barred appeal
C 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,
nothing can be found out from the rule that it is intended to operate as
D unremediably or irredeemably fatal ifthe memorandum is not accompanied
by any such application at the first instance. [242-H; 243-A)

Govind Lal Chaggan Lal Patel v. The Agriculture Produce Market
Committee & Ors., AIR (1976) SC 263 and Jagat Dhish Bhargava v. Jawahar
Lal Bhargava & Ors., AIR (1961) SC 832, relied on.
E
Padmavathi v. Kalu, AIR (1980) Ker. 173 and Madhukar Daso
Deshpande v. Anant Nilkantha Deshpande & Ors. AIR (1984) Kar. 40,
disapproved.

F Maya Devi v. MK. Krishna Bhattathiri & Anr. AIR (1981) Ker. 240;
State of Karnataka v. Nagappa, AIR (1986) Kar. 199 and State of Bihar &
Ors. v. Ray Chandi Nath Sahay & Ors., AIR (1983) Pat. 189, approved.

Crawford on "Statutory Construction" (1940) Ed. Art. 261, P. 516,
referred to.
G
2. The word "shall" used in Order 41Rule3A (1) gives the requirement
a peremptory 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 and there is no need to place a more restrictive
H interpretation. The rule cannot be interpreted very harshly and make the
STATE v. PRADEEP KUMAR [THOMAS, J.) 237
... non-compliance punitive to appellant. [240-F-G] A
3. The pristine maxim "Vigilantibus Non Dormientibus Jura
Subveniunt" (Law assists those who are vigilant and not those who sleep over

- their rights) is true 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 B
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. [240-H; 241-A] C
4. The matter is remanded to the High Court for disposal of the
application for condonation of delay in filing the second appeal. The second
appeal will have to be disposed of in accordance with law if the explanation
was found satisfactory to the High Court. [243-C]
D
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4994 of
2000.

From the Judgment and Order dated 13 .11.98 of the Madhya Pradesh
High Court in M.A. No. 449 of 1996.
E
Ashok Kumar Singh, Satish K. Agnihotri, S.S. Khanduja and B.K. Satija
for the appearing parties.

The Judgment of the Court was delivered by

THOMAS, J. Leave granted.
F
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 G
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 H
238 SUPREME COURT REPORTS {2000] SUPP. 3 S.C.R.

A 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

B
and remanded the case to the trial court for disposal of the suit on merits.

On I 0.12.1996 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
C 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.
D
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
E 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."
F The appellants cited before the learned Single Judge a decision of the
Karnataka High Court in State of Karnataka v. Nagappa, AIR (1986)
Kamataka 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 vi,ew earlier
regarding the legal consequences of not filing an application for condoning
G 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
H was not accompanied with application for condonation of delay and ..
STATE v. PRADEEP KUMAR [THOMAS, J.) 239
affidavit, stating the fact, the appeal was not competent. In view of A
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 B
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 l of the Code says that the rules in Order 41 shall apply, C
so far as may be, to appeals from appellate decrees. Order 41 Rule l 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 D
appellant court dispenses with it. Rule 2 is not of much importance on the
question involved in this appeal an? 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 E
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, p
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 G
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 H
240 SUPREME COURT REPORTS [2000) SUPP. 3 S.C.R.

A 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."
-
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
B Code indicates in the immediately preceding rule that the consequence of not
complying with the requirements in Rule I 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
C 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 appal 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
D 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
E can be cured by the party concerned and present the appeal without further
delay. ,

No doubt sub-rule (I) 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
F 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.
G 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 pormientiobus 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
H the aphorism "to err is human" is more a practical notion of human behaviour
STATE v. PRADEEP KUMAR [THOMAS, J.) 241
than an abstract philosophy, the unintentional lapse on the part of ·a· litigant A
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.
B
Crawford on "Statutory Construction" has stated thus at Page S16, Art.
261 in the 1940 Edn.:

"The question as to w:1ether 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 meaning and intention of the c
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."
D
It is apposite to point out that the said passage has been quoted 'with
approval by this Court in Govind Lal Chaggan Lal Patel v. The Agriculture
Produce Market Committee and Ors., AIR (1976) SC 263.

In Jagat Dhish Bhargva v. Jawahar Lal Bhargava and Ors., AIR (1961)
SC 832 this Court while considering the procedure to be followed by the Court E
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 0.41,
R. l. Appropriate orders will have to be passed having regard to the
circumstances of each case, but the most important step to take in F
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
G
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 v. Ka/u, AIR (1980) Kerala 173 that "where
the petition for condonation of delay in filing of appeal has been filed H
242 SUPREME COURT REPORTS (2000] SUPP. 3 S.C.R.

A subsequent to the filing of the appeal the petition is liable to be dismissed."
A Single Judge of the Kamataka High Court following the said decision in
Madhukar Daso Deshpande v. Anant Nilkantha Deshpande & Ors., AIR
( 1984) Kamataka 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.
B 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."

C 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
v. MK. Krishna Bhattathiri and Anr., AIR (1981) Kerala 240). The same fate
had fallen on the view adopted by the Single Judge of the Kamataka High
Court in Madhukar's case when a Division Bench has subsequently overruled
it, (State of Karnataka v. Nagappa, AIR (1986). N. Venkatachala and S.A.
D 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 ( l) of Rule
3-A is mandatory. However, learned Judges pointed out that sub-rules (2) and
(3) have been employed by the kgislature for highlighting the purpose of
introducing such a new rule. The following passage from the judgment of the
E Division Bench of the Kamataka High Court can usefully be quoted in this
context :

"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
p 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."

G 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. v. 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
H that it would not be entertained unless it is accompanied by an application
STATE v. PRADEEP KUMAR [THOMAS, J.) 243
explaining the delay. Second is, to communicate to the respondent a message A
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 condona:tion 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 appP,llant if the memorandum is not
accompanied by any such application at the first instance. In our view, the B
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. C
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.

A.Q. Appeal allowed.

.,.