HIGH COURT OF CHATTISGARH AT BILASPUR
Civil Revision No 131 of 2008
Lakshmi Prasad
...Petitioners
Versus
1. National Thermal Power
2. Dharam Singh
3. Amar Singh
4. Vyash Narayan
5. Parmeshwar
6. Ishwar Singh
7. Bhuneshwar Singh
8. Rajeshwar Singh
9. Dhananjaya
10 Smt. Jamuna Bai
11 State of CG
12 Sub-Divisional Officer
...Respondents
{Civil revision under Section 115 of the Code of Civil Procedure, 1908
! None present for the applicant
^ Dr. N.K. Shukla, Senior Advocate with Mr. B.D. Guru, Advocate for non-applicant No 1
Mr. P.R. Patankar, Panel Lawyer for the State/non-applicants No 11 & 12
Honble Mr. T.P. Sharma, J
Dated:25/02/2009
: Judgment
ORAL ORDER
(25-2-2009)
1. None present for the applicant. No representation is made.
2. None present for non-applicants No.2 to 10, though served.
3. I have heard learned counsel appearing on behalf of non-
applicant No.1 & the State/non-applicants No.11 & 12 and perused
the revision.
4. This revision is directed against the order dated 21-11-2007
passed by the 6th Additional District Judge, Bilaspur in Civil
Appeal No.17-A/2007, whereby learned Additional District Judge
allowed the application filed under Section 5 of the Limitation
Act, 1963 (for short `the Act’) and condoned the delay in filing
the appeal.
5. The order is challenged on the ground that any appeal filed
after the period of limitation should be dismissed in accordance
with Section 3 of the Act and before allowing the application for
condonation of delay filed under Section 5 of the Act,
opportunity of hearing to the opposite party is sine qua non, but
the Court below has not afforded opportunity of hearing to the
present applicant and has passed the order which is without
jurisdiction.
6. It has been prayed on behalf of the applicant that the
revision be allowed and the appeal pending before the Court below
be disposed of finally on the ground of limitation.
7. Dr. N.K. Shukla, learned counsel appearing on behalf of non-
applicant No.1, submits that the Court below has not afforded
opportunity of hearing to the parties and allowed the application
filed under Section 5 of the Act, but this irregularity may be
cured and the Court may consider the application filed on behalf
of the non-applicants supported by affidavit stating/explaining
the grounds of delay.
8. I have perused the order impugned and copies of other
orders/documents. Appeal under Section 96 of the Code of Civil
Procedure, 1908 (for short `the Code’) was filed on behalf of non-
applicant No.1 herein before the 6th Additional District Judge,
Bilaspur. On 21-11-2007, after hearing non-applicant No.1 on the
question of limitation, the Court below has allowed the
application filed on behalf of non-applicant No.1 for condonation
of delay in filing of the appeal of 66 days without affording any
opportunity of hearing to the opposite party i.e. the
respondent/plaintiff No.2/present applicant.
9. Procedure for filing and hearing the appeal has been
prescribed under Order 41 of the Code. When an appeal is filed
or presented after the expiry of the period of limitation, the
appellant is required to file 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, in accordance with
Order 41 Rule 3A of the Code and if the Court satisfies that
there is no reason to dismiss the application, then the Court is
required to issue notice to the opposite party on the application
for condonation of delay in filing the appeal in accordance with
Order 41 Rule 3A of the Code. Rule 3A of Order 41 of the Code
reads as follows: –
“3A. Application 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 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 or 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.”
10. Admittedly, in the light of the provisions of Rule 3A of
Order 41 of the Code and Section 5 of the Act, providing
opportunity of hearing to the opposite party is sine qua non and
the opposite party may satisfy the Court that the appellant is
not having any ground for explaining the delay in filing the
appeal and on such cases, the appeal filed after the period of
limitation may be dismissed. In this case, the Court below has
not provided opportunity to the applicant herein in accordance
with Rule 3A of Order 41 of the Code and thereby committed
illegality. Order impugned is not sustainable.
11. Consequently, the revision is allowed and the order dated 21-
11-2007 passed by the 6th Additional District Judge, Bilaspur in
Civil Appeal No.17-A/2007 is hereby set aside. The case is
remitted back to the first appellate Court for providing
opportunity of hearing to both the parties and to pass order
afresh on the application filed under Section 5 of the Act.
12. I.A.Nos.1, 3, 4, 5, 6 & 7 thus stand disposed of.
JUDGE