ORDER
1. This revision under Section 115 of the Code of Civil Procedure arises from the judgment and order dated August 21, 1998 passed by Sri N. Subba Rao, Civil Judge, Senior Division, Kolar Gold Fields in Appeal No. 16 of 1998 condoning the delay of almost sixty-five days in filing of the appeal in exercise of jurisdiction under Section 5 of the Limitation Act. Feeling aggrieved from that order, the plaintiff-respondent has come up in revision under Section 115 of the Code of Civil Procedure.
2. The learned Counsel for the revision petitioner contended that in view of the provisions of Order 41, Rule 3-A, the Court below should not have considered the application under Section 5 of the Limitation Act nor should have granted any interim order. He contends that Rule 3-A is mandatory in its nature and it was the duty of the Appellate Court to have dismissed the appeal when the appeal was filed without accompanying an application under Section 5 of the Limitation Act. The learned Counsel further contended that the finding regarding sufficient cause is also erroneous and it needs to be set aside. The learned Counsel further
contended that the appellant had filed the appeal stating that the appeal is in time. When objections were raised on the ground of limitation, the respondent filed the application for condonation of delay. So he was not entitled to exercise the discretionary jurisdiction. Learned Counsel contended that the delay has not been properly explained day-to-day. Learned Counsel further contended that the condonation of delay was sought on the ground of Advocate’s mistake, but there is no affidavit of Advocate concerned. The contentions of the learned Counsel for the revision petitioner is hotly contested by Sri B. Veerappa appearing on behalf of the respondent. On behalf of the respondent it has been contended justice is the motto as per Constitution. Learned Counsel contended that no persons should be deprived to the recourse of a remedy under law on account of disability, economic or otherwise. He submitted that if the Counsel himself calculated the limitation taking it from the date of his knowledge and stated the appeal to be in time, the mistake may be bona fide and party should not be made to suffer nor should be denied justice. Learned Counsel for the respondent contended that the Counsel believed the appeal filed to be in time as such the appeal was filed without an application under Section 5 of the Limitation Act and justice being the motto and basic objective and rules of procedure being subservient to the cause of justice, should be interpreted in a way that they may advance justice and must not mar the cause and course of justice. He submitted that though it is required that the appeal should be filed along with an application under Section 5, this rule does not bar the jurisdiction of the Court to consider to exercise its sub-jurisdiction under Section 5 of the Limitation Act if the material on record itself disclosed sufficient cause. The learned Counsel contended that Rule 3-A being procedural, has to be interpreted taking the circumstances in view of the basic concept of justice under the Constitution to the parties. He further contended that Rule 3-A of Order 41 of the CPC does not itself provide that if appeal is not accompanied by Section 5 application, it has to be or may be dismissed instantaneously, simply on the ground that the appeal is not accompanied by the application. The learned Counsel further contended that even if in its view there was need of an application for condonation of delay under Section 5 of the Limitation Act and material on record being not by itself disclosing, it to be in tune or cause for delay it had full jurisdiction to call upon the party to file application with affidavit. It is only in cases, the learned Counsel contended, that in spite of direction to remove the defect by filing an application the party concerned or the appellant concerned does not remove the defects by filing any application under Section 5, no doubt the Court has to dismiss the appeal. But it is not that, outright the appeal should be dismissed. The learned Counsel further contended that the finding recorded as to the sufficient cause is really a finding of fact and does not call for interference under Section 115 of the Code of Civil Procedure. He further contended that the appeal is yet to be decided and it cannot be said that the defendant cannot be substantially compensated for the injury on delay being condoned if it is so necessary. At the most, the plaintiff-respondent before the Court below, that is the present revision petitioner could have
claimed compensation in the form of cost. Learned Counsel contended in that view of the matter the order impugned is, really making available and is of providing opportunity of hearing to the parties.
3. I have applied my mind to the contentions raised by the learned Counsel for the parties. Section 115 of the Code of Civil Procedure confers powers of supervisory nature and exercise jurisdiction of the Court under Section 115 of the CPC by this Court can be made only on establishment of jurisdictional error having been committed. But in every case of jurisdictional error even being shown, this Court is not bound to interfere with the order of the Court below unless it is shown that justice is going to suffer or injustice is going to be caused to the party aggrieved coming to this Court. Keeping these basic principles in view, I proceed to examine the contentions raised by the learned Counsel for the parties. The first contention is definitely too technical one and it is one of the trite principles of law that technicalities should not be made to obstruct the course of justice. Rules or procedures are meant to be followed and adhered, no doubt, keeping in view the main object of imparting justice to the people, that is, to serve the cause of justice. Keeping this principle in view, let us examine Order 41, Rule 3-A along with other provisions of the law in this regard.
4. Section 3 of the Limitation Act no doubt that subject to Sections 4 to 24, provides that every suit instituted, appeal preferred and application made after the period prescribed therefor shall be dismissed although limitation has not been set up by way of defence. This power of the Court to dismiss the appeal is subject to the provisions of Sections 4 to 24 including Section 5 of the Limitation Act. Section 5 of the Limitation Act provides that any appeal or any application other than an application under any provision of Order 21 of the Code of Civil Procedure, can be admitted after prescribed period, if the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation to Section 5 reads and provides that the fact that appellant or applicant was misled by any order, practice or judgment of the High Court in ascertaining or in computing the prescribed period, may be sufficient cause within the meaning of this section. So this section confers jurisdictional power on the Court to admit the appeal even if it is time-barred, provided it is satisfied by the appellant or applicant that he had sufficient cause for not preferring the appeal in time. So, this confers a power on the Court to admit the appeal even if time-barred, if sufficient cause for delay appears to the Court for admitting the appeal after holding that appeal is filed in time. But this section does not in express terms requires any application under Section 5 of the Limitation Act to be made in every case. If the circumstances appear from the record which constitutes in its opinion sufficient cause for admitting the appeal then the Court can reasonably find that the appeal is in time, it can suo motu exercise the power without application for condonation of delay being made, but of course after having recorded a finding as to satisfaction that sufficient cause existed.
The provisions of Order 41, Rule 3-A has to be interpreted keeping this position of law existed in view. Order 41, Rule 3-A reads as under.-
“Application for condonation of delay.–(1) When an appeal is presented after the expiry of the period of limitation prescribed 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 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”.
This Rule 3-A had been introduced by Amending Act 104 of 1976. It means, when an appeal has to be filed, it is one of the requirements now that an application for condonation of delay has to be filed supported by an affidavit, stating the facts showing sufficient cause for delay on the basis of which the appellant wants the Court to exercise its power under Section 5 of the Limitation Act. Whether this has the effect of curtailing the suo motu power of the Court is rather doubtful. If the intention of the legislature would have been that, then such a provision would have been incorporated and made in Section 5 itself. Anyway, the rule required that when an appeal is filed and is prima facie to the knowledge of appellant is time-barred. The application under Section 5 of the Limitation Act ordinarily is to be filed along with the appeal. But it does not provide that if the appeal is not accompanied by Section 5 application, the appeal shall instantaneously be dismissed. That with reference to the rule of procedure under Order 7, Rule 11 of the Code as to rejection of plaint where the plaint is found to suffer from defect of verification or from defect of non-signing by the party concerned of the like. It has well been laid that plaint should not be rejected instantaneously but an opportunity should be given to the plaintiff to remove the defect arising out of or in relation to procedural rules. That very principle will and may have to be followed in case of Rule 3-A of Order 41 of Code. No doubt it is mandatory now that application has to be filed stating the sufficient explanation of cause for delay and ordinarily may have to be filed along with the appeal. But this rule does not specifically provide that if Rule 3-A(1) has not been followed, i.e., if an application under Section 5 of the Limitation Act has not been filed along with the Memo of Appeal, the appeal should be dismissed. It means that if appeal is found to be defective and barred by limitation, the Court is not required under Rule 3-A of Order 41 of the CPC to instantaneously dismiss it, but keeping in view that rules are meant to subserve the cause of justice, before pass-
ing any order of dismissal, the Court can, and has power to give an opportunity to the party concerned to remove the defect by filing an application for condonation of delay and if in spite of that being done and time being granted the appellant or applicant does not file the application for condonation of delay, then the Appellate Court has got jurisdiction and duty to dismiss the appeal on the ground of limitation. When I so opine, I find support for my view from the Division Bench decision of this Court as well as from the decision of the Calcutta High Court also. The Division Bench of this Court consisting of Hon’ble Mr. N. Venkatachala and Mr. S.A. Hakeem, JJ., in the case of State of Karnataka v Nagappa, has expressed the same view. It will be appropriate to refer and quote the following observations of their decision.-
“9. When Bill No. 27 of 1974 to amend the CPC, 1908, and the Limitation Act, 1963, containing the amendment proposed by the Law Commission was presented before the Parliament along with the statement of objects, notes of clauses were also presented. Sub-clause (iii) of Clause 90 therein read:
“Where an appeal is filed after expiry of the period of limitation, it is the practice to admit the appeal subject to the provisions as to limitation being raised at the time of the hearing. This practice has been disapproved by the Privy Council which has stressed the expediency of adopting a procedure for securing the final determination of the question as to limitation even at the stage of admission of the appeal. New Rule 3-A is being inserted to give effect to the said recommendation”.
10. That new Rule 3-A comprised of sub-rules (1) and (2) to which we have adverted earlier. These sub-rules (1) and (2) came to be enacted as sub-rules (1) and (2) of Rule 3-A which was inserted into the Code, by clause (ii) of Section 87 of the CPC (Amendment) Act, 1976.
11. We shall now proceed to ascertain the scope of sub-rule (1) of Rule 3-A, from its language and in the context of its legislative history.
12. An application for condonation of delay shall accompany a time-barred appeal, when it is presented, is the requirement of sub-rule (1) of Rule 3-A, becomes apparent as seen therefrom. The affirmative language employed in the sub-rule, mandates the appellant presenting a time-barred appeal to file along with it, an application for condonation of delay as well. This shows the. mandatory nature of the sub-rule. The sub-rule, therefore, may be characterised as a mandatory one. When sub-rule (2), which follows sub-rule (1), enjoins the Court to finally decide the application for condonation of delay filed under sub-rule (1) before it proceeds to deal with the appeal under either Rule 11 or Rule 13
of Order 41 of the Code, it clearly indicates that an application for condonation of delay should have accompanied a time-barred appeal when presented, so that it may be finally decided before the Court can proceed to deal with the appeal, either Rule 11 or Rule 13 of Order 41 of the Code. A combined reading of sub-rules (1) and (2) of Rule 3-A 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 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 Rule 3-A, becomes clear from the legislative history of new Rule 3-A to which we have already adverted. The scope of sub-rule (1) being what we have, thus, stated, we shall now turn to the manner of its operation.
13. Sub-rule (1), in its very nature, is a procedural one. It is designed, as seen from its content, to achieve two purposes: (i) to inform an appellant filing a time-barred appeal that it would not be entertained if presented, without being accompanied by an application for condonation of delay; and (ii) to inform the respondent in the time-barred appeal that it would not be necessary for him to get ready to meet the grounds of objections taken against the judgment and decree appealed against, in that, the appeal itself cannot be heard under Rule 11 or Rule 13 of Order 41 of the Code, unless the application for condonation of delay is finally decided in favour of the appellant. No penalty of rejection or dismissal of a time-barred appeal for non-compliance with the requirement of the sub-rule is envisaged therein, as has been done under sub-rule (1) of Rule 3 of the same Order 41 of the Code, which empowers the Court to reject a memorandum of appeal not drawn up in the prescribed manner. When the explanation to Section 5 of the Limitation Act enables the appellant, who was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period, to seek condonation of delay in presenting the appeal by pleading such order, practice or judgment as sufficient cause therefor, outright dismissal of a time-barred appeal presented without being accompanied by an application for condonation of delay, could not have been envisaged at all by the sub-rule, in that, the appellant would be realising the occurrence of such delay in presenting the appeal only when it is pointed out to him either by the office of the Court or by his opponent. Even the legislative history of sub-rule (1), to which we have adverted, does not indicate that sub-rules (1) and (2) of Rule 3-A inserted in the Code, were intended to award the penalty of dismissal of an appeal in the event of non-compliance with the requirement of sub-rule (1) by an appellant presenting a time-barred appeal. Thus, when the sub-rule neither expressly nor contextually indicates that its non-compliance by an appellant presenting a
time-barred appeal, should, as a penalty, entail dismissal of his appeal, we find it rather difficult to regard its operation, as bringing about impliedly such drastic result. It is not also open to us to construe a procedural rule of the kind, intended to aid in the administration of justice as one implying the award of a severe penalty for its non-compliance, if we have regard to what has been said by the Supreme Court as to the manner of approach required of a Court in properly construing a procedural rule”.
In para 18, the Division Bench further observes.-
“Hence, in our view, mandatory sub-rule (1) of Rule 3-A, the operation of which is being dealt with, has to be regarded by a Court before which a time-barred appeal is presented, as requiring that Court to make the appellant presenting such appeal, comply with its requirement by affording him a reasonable opportunity in that regard and to have recourse to dismissal of such appeal as not properly presented, only when he disregards the opportunity so afforded. It is also our view that a time-barred appeal, which was originally presented defectively, but which defect is remedied (cured) within the time allowed by the Court, should be regarded as one properly presented as on the date of its original presentation, in that, the remedying of such a procedural defect necessarily relates back to the date of original presentation of the appeal”.
The Division Bench of the Calcutta High Court in the case of Sm. Sipra Dey v Ajit Kumar Dey, has also expressed the same view as has been laid down by the Division Bench of this Court as well as by me (vide the observations contained in paras 19 and 23 as well as 24 and 25 of the report). Their Lordships laid down finally.-
“We would accordingly hold that even though an application for condonation of delay has not been presented along with the memo of time-barred appeal in accordance with Rule 3-A of Order 41, the Court would still have full jurisdiction to condone the delay under Section 5 of the Limitation Act, on an application filed later, but we would like to add that if in the absence of any such accompanying condonation application, Court dismisses the appeal, Court would be perfectly keeping within the jurisdiction in view of Rule 3-A of Order 41, Section 3 of the Limitation Act”.
(emphasis supplied)
Orissa High Court has also expressed the same view in the case of Dijabar and Another v Sulabha and Others .
5. In my opinion, the learned Court below cannot be said to have committed any jurisdictional error in considering the application for condonation of delay filed later on in the appeal and as such the first contention raised by the revision petitioner’s Counsel is without substance and is rejected.
6. As regards sufficient cause, from the order sheet it appears, as mentioned by the Court below as well, that since after the examination of the plaintiff-P.W. 1 in 1993, for no reason either communicated nor recorded by the Court, the case was adjourned from time to time and P.W.1’s cross-examination had to take place sometimes in the end of 1997. As regards cross-examination by the defendant of plaintiff-P.W. 1, it appears, from 18-10-1997 though cross-examination of P.W. 1 is ordered ‘Nil’, further evidence of the plaintiff was recorded in November, 1997. No doubt order sheet indicates that on 14-1-1997 the case was adjourned on the plaintiffs request. 28th was fixed for further evidence of the plaintiff. Plaintiffs witnesses were absent. Again time was prayed for. Then in December, 1997, P.W. 2 was examined. None was appearing on behalf of the defendant. Thereafter cross-examination was ‘Nil’. On 19-12-1997 the Counsel for the plaintiff declared that he closed his evidence. The Court appears to have fixed 2nd January for defendant’s arguments. Order sheet indicates that on 2-1-1998 the case was no doubt listed for defendant’s evidence, but the defendant was absent and none represented him on that date. No doubt as seen in the order sheet, the names of two Counsels are mentioned, but in the operative part of the order, it is mentioned:
“Defendant called out. Absent.
Unrepresented”.
It indicates that mere mention of the name of the Counsel for the parties is no indication that parties’ Counsel were present. When specifically in the order it is mentioned no representation for the party is there, the mention of name of the Counsel of the parties is not to be taken as if defendant was present, when this is indicated on 7-2-1998. On 13-2-1998 order sheet no doubt again mentioned the names of both the Counsels, “Arguments heard for judgment”. Judgment does not indicate the Judge concerned heard which Counsel, whether the plaintiffs or defendant’s Counsel. The order sheet is silent. It was posted for judgment again on 19-2-1998. No doubt the name of the Counsel is mentioned, but there is nothing to show that the defendant’s Counsel was present when the judgment was delivered. The learned Counsel for the revision petitioner had placed before me copy of the judgment. I have perused the certified copy produced by him. Para 5 of the judgment records, on 13-2-1998 the learned Counsel for the plaintiff advanced his arguments. It is nowhere mentioned that defendant’s Counsel also raised contentions as did the plaintiff’s Counsel. I have perused plaint and written statement. So from this it appears that even on 13-12-1998 only plaintiffs Counsel was present and his arguments were heard, but defendant’s Counsel was not present and case was going ex parte. The date of judgment it is no doubt mentioned ‘call on 19-2-1998’, the defendant party was not present. Order 20, Rule 1(1) of the Code of Civil Procedure provides and reads as under.-
“Judgment when pronounced.–(1) The Court, after the case has been heard, shall pronounce judgment in open Court, either at once or soon thereafter as may be practicable on some future day;
and when the judgment is to be pronounced on some future day, the Court shall fix a day for that purpose of which due notice shall be given to the parties or their pleaders:
Provided that where the judgment is not pronounced at once, every endeavour shall be made by the Court to pronounce the judgment within fifteen days from the date on which the hearing of the case was concluded but, where it is not practicable so to do, the Court shall fix a future day for the pronouncement of the judgment, and such day shall not ordinarily be a day beyond thirty days from the date on which the hearing of the case was concluded, and due notice of the day so fixed shall be given to the parties or the pleaders:
Provided further that, where a judgment is not pronounced within thirty days from the date on which the hearing of the case was concluded, the Court shall record the reasons for such delay and shall fix a future day on which the judgment will be pronounced and due notice of the day so fixed shall be given to the parties or their pleaders” .
Order 20, Rule 1(2) reads as under.-
“Where a written judgment is to be pronounced, it shall be sufficient if the findings of the Court on each issue and the final order passed in the case are read out and it shall not be necessary for the Court to read out the whole judgment, but a copy of the whole judgment shall be made available for the perusal of the parties or the pleaders immediately after the judgment is pronounced”.
A reading of this rule per se reveals that when the judgment is to be delivered or pronounced on some future date, law requires and rule requires that due notice of the date shall be given to the parties or their Counsel. A reading of proviso further indicates that if within fifteen days from the date of hearing, it is not practicable to deliver the judgment, Court shall fix a future date for pronouncement of judgment and due notice with regard to the date fixed shall be given to the parties concerned. Second proviso further provides that if judgment is not pronounced within thirty days from the date of hearing being concluded, Court shall record the reasons for such delay and fix a future date on which judgment will be pronounced and again this rule requires that due notice of the date so fixed shall be given to the parties and their Counsel. It means, a mandatory duty has been cast on the Court if the judgment is not pronounced instantaneously after hearing arguments, but to be pronounced on some other date, then under the principal sub-rule (1) as well as proviso thereto of Order 20, in every case due notice shall be given to the parties or their Counsel. It means it is the bounden duty of the Court that before judgment has to be pronounced if it has to be pronounced at a future date, to give due notice to the Counsel. When the Counsel for the defendant was not present and defendant was not present, it was the duty of the Court to have given the notice of the date of judgment to the Counsel for the defendant. As I have found from the various documents, it appears that Counsel for plaintiff was only present. Hearing
was concluded. Judgment was fixed on 19-2-1998 and this date was fixed on 13-2-1998. The duty of the Court was to have issued notice to the Counsel on record on behalf of defendant when he was not present. Plaintiff’s Counsel was heard no doubt. Notice need not have been given to the plaintiff’s Counsel because he was present on 13-2-1998 when the date was given for pronouncement of judgment. The defendant’s Counsels were not present at that time and so notice ought to have been issued regarding date of judgment to the Counsel for the defendant. This not having been done, the question arises to what is to be taken to be the date of judgment and decree for the purpose of counting limitation. Judgment and decree become operative against a party when it is communicated to it. I mean to say that when judgment is delivered in the presence of the party, it becomes effective from that date. If it is not communicated and parties are absent and judgment is delivered on some other date without notice, then the date of judgment will be deemed when judgment stands communicated to the parties. When I say so, I find support for my view from the judgment of their Lordships of the Supreme Court in the case of State of Punjab v Mst. Qaisar Jehan Begum and Another, No doubt their Lordships were dealing with a case under Section 18 of the Land Acquisition Act, but the circumstances were similar which may help us in considering the date. Second proviso to Section 18 of the Land Acquisition Act reads as under.-
“Provided every application shall be made.-
(a) if the person making it was present or should be before the Collector at the time when he made his award within six weeks from the date of Collector’s award;
(b) in other cases, within six weeks from the date of notice from Collector under Section 12(2) or within six months from the date of Collector’s award”.
The expression ‘within six months from the date of Collector’s award’, had been considered by their Lordships. Their Lordships have observed: “as to the second part of clause (b) of proviso with true scope and effect thereof was considered by this Court in case of Raja Harish Chandra Raj Singh v Deputy Land Acquisition Officer and Another. It was observed therein that a literal and mechanical construction of the words ‘within six months from the date of Collector’s award’ accruing in second part of clause (b) of proviso would not be appropriate and the knowledge of the party affected by award either actually or constructively being essential requirement of fair play and natural justice, the expression ‘the date of the award’ used in the proviso must mean that it is from the date when the award is either communicated to the party or is made known to him either actually or constructively”. Admittedly, the date of delivery of judgment nor notice of judgment was never communicated to the respondent. Therefore, the question before me boils down to this. When the date of pronouncement of judgment is not communicated to
the present respondent either actually or constructively, when did he or they come to know about the judgment delivered by the Court against which present respondent filed the appeal, and it is date of knowledge of judgment delivered against a party to him will give him cause to be aggrieved and cause to avail remedy against that judgment. It is not only that date of judgment is material but date of effective delivery of judgment with notice of date of delivery of judgment. This, what lies behind the provision of Order 20, Rule 1 proviso. When the date of delivery of judgment was postponed and when parties or any of the parties or their or his Counsel was not present at hearing, it was the mandatory duty of the Court to have issued a notice fixing the date of delivery of judgment, when it fixed the date for delivery of judgment or some future date. But, when this has not been done, the date of decree has to be taken as the date of knowledge when the party not having been served with notice, comes to know about it. Had the notice been served and party absented the party could be fastened with the liability that he had the notice of the date of delivery of judgment. But when this is not so, then the Counsel for the respondent when construed and counted the date of limitation from the date of knowledge of that judgment, he did not commit any error and when he mentioned in the appeal that the appeal was within time and it cannot be said that he misled the Court instead acted bona fide even if at the worst it be taken that he committed any error in so calculating. The considered contention raised by revision petitioner’s Counsel referred to above as such based on misconception. Knowledge of the Trial Court judgment came to the party i.e., present respondent only on 13-4-1998. It can be said that the appeal filed on 25-5-1998 after excluding the period consumed in taking the certified copies of judgment and decree as without which neither appeal could be drafted, prepared nor filed, was well within time.
7. Even otherwise, also the delay can be said to have been caused by mistaken advise of the Counsel or miscalculation of the date of judgment by the parties. Apart from that, plaintiff has himself been instrumental for evidence not being recorded for four years. Doors of justice are not to be closed simply on technical grounds as urged by the learned Counsel for the revision petitioner. In my opinion, the Court below was justified in holding that sufficient cause has been shown for the delay and that finding does not call for any interference as it does not suffer from any illegality. I find that the cause for delay in filing appeal appears to be sufficient. Thus in my considered opinion, the present revision petition is devoid of merits and has to be dismissed. The revision petition is hereby dismissed as being without merits. Revision having been dismissed and the respondent being represented by Counsel, it appears just and proper to dismiss the revision petition with cost assessed at Rs. 550/-.