JUDGMENT
D.K. Seth, J.
1. Mr. Bhattacharyya, the learned counsel appearing on behalf of the respondent, vehemently opposes the application for condonation of delay. There is about 26 days’ delay in preferring the appeal. Mr. Bhattacharyya points out that the application under Section 5 of the Limitation Act was filed long after filing of the appeal. In view of the provisions contained in Order 41 Rule 3A of the Code of Civil Procedure (CPC), the petitioner is supposed to explain the delay till the date of filing the application under Section 5 of the Limitation Act. Inasmuch as, unless the Memorandum of Appeal is accompanied by an application under Section 5 of the Limitation Act, there is no Memorandum of Appeal in the eye of law. Therefore, it would be deemed to have been presented only when it is accompanied by an application under Section 5 of the Limitation Act. This period needs to be explained. Without any explanation, the delay cannot be condoned.
2. The second point taken by Mr. Bhattacharyya is that delay has not been properly explained. The allegation of sufferance from Viral Hepatitis is unfounded and has been created for the purpose of seeking condonation of delay. He has also pointed out to the conduct of the appellant. Inasmuch as the application for certified copy was made at a very late stage. That apart, instruction for preferring appeal was issued after one month. Since the matter was decided on contest, there is no question of absence of knowledge on the part of the appellant, as has been sought to be contended in the application under Section5 of the Limitation Act. The statements made, on the face of it, show that those are not correct which have been affirmed as true to knowledge. Therefore, the petitioner cannot take advantage of such statement, which he himself knows to be incorrect. The application, therefore, should be dismissed.
3. The learned counsel for the appellant, on the other hand, contended that the delay has sufficiently been explained. Instruction was rightly issued. Certified copy took a little time. The person responsible for preferring the appeal was attacked with Viral Hepatitis, which according to him, is supported by documents, which ought to have been annexed with the application but by mistake, those could not be annexed. However, copies thereof have been furnished to Mr. Bhattacharyya and Mr. Bhattacharyya takes no objection to that. He also prays to file these annexures and get them stitched with the application itself.
4. We grant leave to the learned counsel for the appellant to file theannexures and stitch them with the application. Since no objection has been taken by Mr. Bhattacharyya with regard to the technicality, we over look the same and treat the application as in order and form.
5. So far as the question raised by Mr. Bhattacharyya with regard to Order 41 Rule 3A is concerned, by reason of Section 141 CPC, the provisions of CPC is not applicable in writ proceedings, out of which this appeal arises. But by reason of Rule 53 and the Rules framed by this Court for Article 226, prescribes that the principles of CPC would be applicable. Therefore, this principle may be attracted in a writ proceeding. The appeal has been preferred in the Division Bench under the Letters Patent. When there is no provision in the Letters Patent then whether the principles of CPC would be applicable or not have been considered in various decisions. In case of conflict between Letters Patent and the CPC, it was held that provisions of Letters Patent will prevail. Therefore, we may not place much reliance on the provisions of CPC.
6. The provisions of Order 41 are subject to the Appellate Side Rules (AS Rules). Under Section 122 or 125 of the CPC, High Court may frame its own rules not inconsistent with the body of the Code. The body of the Code consists of the section. The rules are the procedure for implementation of the provisions contained in the body. Therefore, in case of inconsistency between the rules framed by the High Court under Section 122 and the rules contained in the CPC, the AS Rules will prevail. Chapter VIII of the AS Rules deals with appeals under Clause 15 of the Letters Patent. Rule 2 provides for presentation of the Memorandum of Appeal within 60 days from the date of the judgment appealed from unless on good cause being shown, the Court in its discretion may grant further time (Rabindra Nath Chakravarti v. Union of India and Ors., 1976 CHN 515). Rule 3 prescribes that the Memorandum of Appeal shall be drawn up in accordance with the provision of Order 41 Rule 1 CPC. It need not be accompanied by a judgment appealed from. It is the duty of the officer to whom the memorandum is presented to endorse the date of presentation and send the same to the Stamp Reporter, who shall satisfy himself that the memorandum is in order and within time. Rule 7 prescribes that if it is presented within time, the officer to whom it is presented shall cause it to be registered. If the appeal is not in proper form, the officer concerned shall proceed in the manner provided in Chapter V Rule 10(1) of the AS Rules. The proper form includes the entire purpose mentioned in Rule 3. If the appeal is not presented within time, the appeal is not in form. Chapter V deals with appeals filed in the High Court other than those under Clause 15 of the Letters Patent. It also provides under Rule 2 that the Memorandum of Appeal is to be drawn up as in the manner prescribed under Order 41 Rule 1 CPC. The Memorandum of Appeal is to be presented under Rule 10(1) when a Memorandum of Appeal is not in proper form and is not accompanied by the necessary copies of papers, the Registrar may allow time within which the memorandum must be amended and/or the necessary papers filed or may lay the same before the Division Bench for orders. Under Rule 2, if a Memorandum of Appeal is presented for admission without copies of the judgment of the decree, it shall forthwith be returned to the Advocate or party presenting. If such copies are filed after the period of limitation has expired, the memorandum shall be presented direct to the Division Bench. Under Rule 12, the Memorandum of Appeal is to be presented to the Deputy Registrar or such other officer as the Registrar may appoint for the purpose. Under Rule 13, the Stamp Reporter has to endorse his report. If the memorandum is filed after the period of limitation has expired, such memorandum shall be returned to the party filing it, who may present the same to the Division Bench. In case it is not possible for the Stamp Reporter to return the Memorandum of Appeal by it on which it is presented, the time taken by the Stamp Reporter in endorsing the report shall be excluded. Whereas under Section 3 Sub-section (2) of the Limitation Act, an appeal preferred after the prescribed period of limitation is liable to be dismissed, although limitation may not have been set up as defence. Under Sub-section (2), a suit is deemed to be instituted when the plaint is presented and in case of application when presented before the proper officer of that Court. Nothing has been provided for in respect of an appeal, therefore, the presentation of the appeal shall be made in the same manner a suit is instituted, namely, when it is presented to the proper officer. Having regard to the special procedure referred to in the AS Rules in relation to appeals presented to the High Court, it is not possible to hold that Order 41 Rule 3A would be mandatory, though it might be so indicated in Sub-rules (2) and (3) thereof. But then the scheme of Order 41 as arranged in CPC provides under Rule 3 for rejection or amendment of the memorandum, but does not speak of rejection on the ground of limitation. Rule 3A also does not provide for any provision for rejection. A Memorandum of Appeal presented after the period of limitation can be rejected under Section 3 of the Limitation Act not under Order 41 Rule 3. An appeal covered under Order 41 Rule 3A 1 when presented to the High Court is to be treated under the provisions contained in AS Rules as discussed above.
7. The purpose of incorporating under Order 41- Rule 3A is to ensure determination of question of limitation before admission of the appeal. When presented before the Court, the period taken by the Stamp Reporter being excluded, it cannot be conceived that the period between the presentation of appeal and the filing of the application under Section 5 of the Limitation Act requires an explanation. The AS Rules provides for specific procedure for appeal before the High Court. Order 41 Rule 3A has, therefore, to yield to the AS Rules.
8. Be that as it may, even in terms of Order 41 Rule 3A, we do not find any reason to hold that a Memorandum of Appeal would be thrown out if the application under Section 5 of the Limitation Act is filed subsequently without being accompanied the Memorandum of Appeal. But then Mr. Bhattacharyya had contended that this period needs to be explained and that the Memorandum of Appeal shall be deemed to have been presented on the date when the application under Section 5 of the Limitation Act has filed. The date of presentation of the Memorandum of Appeal is treated to be the date of presentation of the appeal. Order 41 Rule 3A does not create any presumption to treat the date of presentation as oblivious and nonexistent till the Memorandum of Appeal is accompanied by an application under Section5 of the Limitation Act. Therefore, such a strict construction of this provision would be against the established principles as enunciated by different High Courts and the Apex Court. There is nothing to indicate that this period also needs an explanation, as contended by Mr. Bhattacharyya. Therefore, we are not agreeable with the contention raised by Mr. Bhattacharyya with regard to this question.
9. So far as the second part of Mr. Bhattacharyya’s submission is concerned, we find that there might be some lacuna in the explanation, but having an overall view, we are of the view that the delay has been sufficiently explained. In the circumstances, we condone the delay and allow the application under Section5 of the Limitation Act.
Let the appeal be registered.
In re: CAN 2438 of 2003
Let the application for stay come up in the list on Friday (18.7.03)
R.N. Sinha, J.
10. I agree.