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Madhukar Daso Deshpande Vs. Anant Nilkantha Deshpande and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberRegular Second Appeal No. 172 of 1981
Judge
Reported inAIR1984Kant40; 1983(2)KarLJ15
ActsCode of Civil Procedure (CPC), 1908 - Order 41, Rule 3-A
AppellantMadhukar Daso Deshpande
RespondentAnant Nilkantha Deshpande and ors.
Appellant AdvocateNarendra Kumar Gunaki, Adv.
Respondent AdvocateK.S. Desai, Basavalingappa and ;W.K. Joshi, Advs.
Excerpt:
.....accused was sentenced to undergo simple imprisonment for a month and to pay a fine of rs.2000/- and in default to undergo further simple imprisonment for a period of 15 days. .....though it was presented beyond time, the first appellate court was justified in rejecting the appeal barred by time.8. in fact, the high court of kerala had an occasion to consider this aspect in the case padmavathi v. kalu, : air1980ker173 . it has laid down thus (at p, 174):'it is mandatory for a person presenting an appeal after expiry of the period of limitation specified thereof to file application supported by an affidavit to satisfy the court that be had sufficient cause for not preferring the appeal within such period. it is mandatory for the condonation petition to accompany the appeal.'9. in that case, the petition for condonation of delay was filed subsequent to the filing of the appeal and the high court held that such an application was liable to be dismissed without.....
Judgment:

1. This appeal by defendant No. 4-A is directed against the judgment and decree dated 25-8-1980, passed by the I Addl. Civil Judge, Belgaum, in R. A. No. 28/1980 on his file dismissing the appeal as barred by time.

2. The appeal was filed on 28-1-1980. Even taking into consideration the time taken for supplying the certified copies the appeal should have been filed on 25-1-1980. Therefore, there was clear delay of three days in filing the appeal. There was no application for condonation of delay. Hence, the learned Civil Judge held that the appeal was barred by time and dismissed the appeal. It is against such judgment and decree that the present appeal is instituted.

3. The learned Counsel for the appellant strenuously urged before me that though the learned Civil Judge mentioned that there was delay of 25 days, in fact, there was delay of only three days. Such delay was inevitable, because, he had to come from Gokah to Belgaum to file the appeal. The certified copies were obtained by him on 25-1-1980 and the appeal was filed on 28-11980. So, he submitted that the short delay should have been condoned. He further submitted that since the office did not raise any objection, he had no occasion to give an application, for condonation of delay. He further submitted that even if there was delay, the Court did not give him a chance to explain the delay. Hence, be submitted that the appeal was entitled to succeed.

4. The learned Counsel for the respondent-plaintiff argued supporting the judgment and decree of the first appellate Court.

5. The sole point, therefore, that arises for my consideration in this appeal is: Whether the first appellate Court was justified in dismissing the appeal as barred by time?

6. After amendment of C. P. C. in 1976, 0. 41, R. 3-A is incorporated in C. P C. It reads :

'When an appeal is presented after the expiry of the period of limitation prescribed thereof, it shall be accompanied by an application supported by affidavit setting forth the facts on which tb6 appellant relies to satisfy the Court he had sufficient cause for not preferring the appeal within such period.'

Thus, it is obvious that after the amendment to C. P. C in 1976, it is imperative for the appellant to apply for condonation of delay if the appeal is instituted beyond time and such application shall be accompanied with the appeal memo and it shall be, supported by an 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 the period of limitation. The provision is mandatory.

7. In the instant case, it is obvious, that the appeal was instituted manifestly beyond three days after the period of limitation was over. That being so, it was imperative on the part of the appellant to enclose an application along with the appeal memo for condonation of delay as contemplated in Order 41, Rule 3-A, C. P. C. He has not only not done so, but even at a later stage when it was brought to his notice that there was delay in the presentation of the appeal he did not submit any application for condonation of delay. It is under these circumstances, that the learned Civil Judge has dismissed the appeal as barred by time .as it was manifestly barred by time. In view' of the mandatory provision of O. 41, R. 3-A, C. P. C. the application for condonation of delay shall be accompanied with the appeal memo, if the appeal Js presented beyond time. 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. Since application for condonation of delay was not admittedly accompanied with the appeal memo, though it was presented beyond time, the first appellate Court was justified in rejecting the appeal barred by time.

8. In fact, the High Court of Kerala had an occasion to consider this aspect in the case Padmavathi v. Kalu, : AIR1980Ker173 . It has laid down thus (at p, 174):

'It is mandatory for a person presenting an appeal after expiry of the period of limitation specified thereof to file application supported by an affidavit to satisfy the Court that be had sufficient cause for not preferring the appeal within such period. it is mandatory for the condonation petition to accompany the appeal.'

9. In that case, the petition for condonation of delay was filed subsequent to the filing of the appeal and the High Court held that such an application was liable to be dismissed without more, as it did not satisfy the mandatory provisions of O. 41, R. 3-A, C. P. C.

10. In the result, therefore, I am constrained to hold that the present appeal is devoid of merits and is liable to be dismissed and accordingly I dismiss the same.

11. On the peculiar facts of the case, I make no order as to costs of this appeal.

12. Appeal dismissed.


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