JUDGMENT
S.C. Pandey, J.
1. This is an appeal filed by the plaintiffs/appellants under Section 100 of the Code of Civil Procedure against the judgment and decree dated 9-10-1993 passed by IX Additional Judge to the Court of District Judge, Jabalpur, in Civil Appeal No. 12-A/92, arising out of judgment and decree dated 16-1-1992, passed by I Civil Judge Class II, Jabalpur, in Civil Suit No. 75A/91.
2. This appeal was admitted for final hearing by this Court on the following substantial question of law, vide order dated 9-5-1994:–
“Whether the appeal before the lower appellate Court was barred by limitation and whether the findings of the lower appellate Court is vitiated for not recording the reasons for reversing the finding of the trial Court.”
3. It may be readily seen that in this substantial question of law is in two parts. The first part relates to limitation. The second part relates to merits of the case. The appeal can be disposed of on the question of limitation alone and, therefore, it is not necessary to decide the question on merits.
4. The appellant succeeded in the trial Court and obtained a decree Under Section 12(1)(f) of M.P. Accommodation Control Act, 1961 (hereinafter referred to as ‘the Act’, for short). The trial Court also found that the appellants had proved the grounds under Section 12(1)(a) of the Act. The respondent filed ah appeal which was barred by ten days. It is not in dispute that the memorandum of appeal was not accompanied by an application under Section 5 of Limitation Act in contravention of Order XLI, Rule 3A of the Code of Civil Procedure. The respondent did not comply with the aforesaid rule even after filing the appeal and the appeal was admitted without deciding question of limitation at the preliminary stage prior to admission. The appellant received notice of the appeal. On 11-8-1992 it was pointed out to the Court that the appeal is barred by time. The Court ordered that this point be decided as preliminary point but the appellants were not present. The case was adjourned to 8-9-1992. The Presiding Judge was transferred and the case was then adjourned to 30-9-1992, 6-1-1992, 5-12-1992, 7-1-1993, 17-3-1993, 30-3-1993, and 12-4-1993. The Presiding Judge had taken leave of absence. The next date was 22-4-1993. The learned Judge, without reading the previous order sheet fixed the case for final arguments on 26-6-1994. The order sheet dated 22-4-1993 reads as follows:–
(Matter in vernacular Omitted — Ed.)
The case was then adjourned from time to time to 26-6-1993, 14-7-1993, 16-8-1993, 18-8-1993, 8-9-1993, and 27-9-1993. On 27-9-1993, the respondent Sardarilal Khatri (who was appellant before the lower appellate Court) was absent. The appellant No. 5 Dr. Deochand Bhura (who was respondent No. 5 before the lower appellate Court) was present. The case was closed after accepting written arguments from appellant No. 5, and was fixed for judgment on 9-10-1993. The counsel for respondent in the lower Court appeared lateron. The lower appellate Court directed him to file written arguments or to argue the case orally on 28-9-1993, otherwise it was stated that judgment shall be pronounced on 9-10-1993. On 28-9-1993 the counsel for the respondent alone argued the appeal. It is clear that no notice was given to appellant No. 5, and, therefore, he did not appear oh 28-9-1993. The Court should have given notice of hearing to appellant No. 5 because he was entitled to know what was being argued by counsel for respondent before the lower appellate Court. The appeal was allowed on merits without noticing the facts that it was barred by limitation by ten days.
5. It is strange that the counsel for the respondent who must have been made aware bf the fact that the appeal was barred by time, did not make any application under Section 5 of Limitation Act, if there was any ground to condone the delay. Nor did he bring it to the notice of the Court that his appeal was barred By the Unfortunately, the written arguments filed by the appellant No. 4 who appeared personally, are not on record. It is quite possible that the appellant No. 4 may have not raised the point of limitation. Nevertheless, it is salutary practice to look into previous order sheets before deciding any case on merits. It gives to the Presiding Judge, a picture in his mind about the previous history of the case. The previous order sheet of 11-8-1992 may have rung the bell in the mind of the Court that question of limitation is involved. In that case, the appeal could not have been allowed without deciding the question of limitation.
6. The learned counsel for the appellant submits that the provisions of Order XLI, Rule 3 A of the Code of Civil Procedure are mandatory and the judgment and decree rendered without extending the time for filing an appeal under Section 5 of Limitation Act 1963 are bad in law. It was contended that the Court below has refused to review its judgment. Therefore, this Court can set aside the judgment and decree of lower appellate Court which were passed in contravention of Order XLI, Rule 3 A of the C.P.C. and Section 3 of the Limitation Act, 1963. The learned counsel for appellants submitted that the decree is without jurisdiction.
7. The learned counsel for respondent was unable to say why the appellant did not file as an application under Section 5 of Limitation Act along with the memorandum of appeal or as soon thereafter when the delay in filing the appeal was pointed out by the counsel for the appellant on 11-8-1992. Looking to the common course of circumstances, it may be presumed that a counsel, filing the appeal should know that the appeal is barred by time. It is a matter of simple calculation. It is definitely the duty of counsel to calculate the period of limitation prescribed by the statute before filing the appeal. Otherwise, this would be an act of utter negligence on his pan. This is not a case of doubtful kind where possibility of miscalculation would have arisen. This Court finds that the counsel failed in his duty in filing the appeal without any application for condonation of delay. This appeal was allowed to be decided without going into the question of limitation. The learned counsel for the respondent, however, urged that Order XLI, Rule 3A is not mandatory. He cited the decision of Karnataka High Court in the case of State of Karnataka v. Nagappa, AIR 1986 Kant 199 and of Bombay High Court, in the case of M. Das Gupta v. Prakash Shah, AIR 1984 Bombay 390. He also urged that appellant had filed review application which was refused by the lower appellate Court. The application of condonation of delay was filed at that stage and delay was condoned. It is, therefore, necessary to repel the contention of learned counsel as unwarranted. The lower appellate Court had refused to review the judgment and decree passed by it. That does not mean that delay was condoned. The lower appellant Court did not decide the question of extension of limitation after setting aside its judgment and decree and did not give any opportunity to refute the allegations made in the application under Section 5 of the Limitation Act to the appellants. The Court below had given fanciful reasons for not reviewing its own judgment and decree and has gone to the extent of holding that delay was impliedly condoned. This is travesty of law. However, it is not necessary to go further than to say that since the review application was rejected, the question of condonation of delay did not arise. Nor does rejection of review application come in the way of deciding this appeal.
8. Therefore, the only question that remains to be decided is as to what is the effect of judgment and decree rendered without any. application for condonation of delay. Now, Order XLI, Rule 3 A was made specifically for the purpose that there should be decision on the question of limitation even prior to admission. The object and reasons for making this amendment arc as follows :–
“Clause 90 — Sub-clause (iii). — Where an appeal is filed after the 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 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.”
It is obvious that the decision of Privy Council was behind, the making of this amendment. Now, the question whether the procedure provided by this rule is mandatory. It is so in the sense no Court can by-pass it and decide the case on merits. It may not be mandatory in the sense that if the memorandum of appeal does not accompany an application for condonation of delay along with affidavit as provided under Order XLI, Rule 3A (1) of the C.P.C. then appeal is liable to be rejected. This is the procedural part of the section which was not held to be mandatory in the case reported in State of Karnataka v. Nagappa (AIR 1986 Kant 199) (supra). However, that Court also says that the compliance of the rule is mandatory. The non-compliance of rule in toto would result in breach of Section 3 of Limitation Act. Even without that rule the appeal which was barred by time could not be allowed in absence of extension of time for filing the appeal. Section 3 of Limitation Act is addressed to the Court. It bars the jurisdiction of the Court to proceed with the appeal when an appeal is barred by time. It renders the lower appellate Court’s decree without jurisdiction. Thus in a limited sense a question of jurisdiction is involved. The Supreme Court in the case of Pandurang Dhondi Chougule v. Maruti Hari Jadhave, AIR 1966 SC 153 observed (at p. 155 of AIR) :–
“….. It is conceivable that points of law may arise in proceedings instituted before subordinate Courts which are related to questions of jurisdiction. It is well-settled that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the Court which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the Court, and so, an erroneous decision on these pleas can be said to be concerned with question of jurisdiction which fall within the purview of Section 115 of the Code…..”
It is, therefore, not necessary to go any further than that. The Court below has no jurisdiction to pass the decree that it did. There could be no implied condonation unless and until the question of limitation was considered by the lower appellate Court in its judgment. The authorities cited by the learned counsel for the respondent are not applicable. The appeal could not be allowed without any application for condonation of delay. Therefore, the judgment and decree of the learned lower appellate Court cannot be sustained.
9. The learned counsel for the respondent in the alternative submitted that this Court should remit the case back for giving the respondent an opportunity of filing the application for condonation of delay. The powers of this Court for remanding the appeal would be governed by Order XLI, Rule 23A of Code of Civil Procedure. These powers can be exercised by this Court under the conditions mentioned in the rule. This rule substitutes what was earlier assumed to be part and parcel of inherent powers of the Court. It is well established that powers of remand cannot be exercised to fill up the lacuna of one or other party. They can be exercised for curing a radical defect in trial or hearing in the appeal resulting in miscarriage of justice. The plea of limitation cannot be said to be technical plea. It is part of administration of justice and the party who raises this plea says that there is no merit in the appeal because it is barred by time. Therefore, the respondent who filed a defective appeal, and did not make up when the defect was pointed out by the opposite party, cannot seek indulgence of this Court to fill up lacuna and put the clock back. Moreover, there is another consideration that after such a long time the appellant will not be able to meet plea of condonation of delay. After some lapse of time it is difficult to verify truth of an allegation unless it was present from the very beginning of an event. Now, any application filed by the respondent could be easily concocted without any opportunity of scrutiny to the opposite party. Moreover, the appellants should not be punished with prolonged agony of litigation for the major fault of respondent. For these reasons this Court does not think it would be proper to exercise powers of remand. It is, of course, assumed that such powers can be exercised in such cases in the interests of justice.
10. The result is that judgment and decree of the Court below are set aside, as passed without jurisdiction and that of the trial Court are restored. The appeal, therefore, succeeds and is allowed. There shall be no order as to costs.