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Dijabar and anr. Etc. Vs. Sulabha and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. Nos. 136 and 137 of 1981
Judge
Reported inAIR1986Ori38
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115, 148 and 151 - Order 41, Rule 3A
AppellantDijabar and anr. Etc.
RespondentSulabha and ors.
Appellant AdvocateR.K. Mohapatra and ;U.C. Panda, Advs.
Respondent AdvocateA.K. Sahu, Adv.
DispositionPetition dismissed
Cases ReferredGobardhan Singh v. Barsati.
Excerpt:
.....petitioners is that since the opposite parties failed (to) comply with the provisions of order 41, rule 3-a, civil p. being mandatory in nature and the opposite parties having failed to comply with the same in not filing an application under section 5, limitation act supported by an affidavit along with the memorandum of appeal, the appellate court had no alternative but to dismiss the appeal in limine on the ground of limitation. this practice has been disapproved by the privy council which has stressed for adopting the procedure for securing the final determination of the question as to limitation before admission of the appeal. the court can be satisfied even from the documents on the record. bisheshwar lal). 7. the position is well settled that the power of condonation of delay under..........on 22-3-1979. thereafter the defendants (opposite parties) filed an application under order 9, rule 13, civil p. c. to set aside the ex parte decree passed against them. the said application was dismissed by the court by an order dated 25-2-1980. being aggrieved by the aforesaid order, the opposite parties preferred misc. appeal no. 109 of 1980 in the court of the district judge, puri. the appeal was presented on 7-7-1980, long after expiry of the period of limitation, i.e. 30 days from the date of the impugned order. the memorandum of appeal was accompanied by a petition under section 5, limitation act for condonation of delay filed by manguli scthi, appellant no. 2 in the appeal. the said petition was not supported by affidavit. the petitioners objected to the appeal being.....
Judgment:
ORDER

D.P. Mohapatra, J.

1. The principal question involved in these applications under Section 115, Civil P. C. is whether the District Judge, Puri committed an error of jurisdiction in entertaining Misc. Appeal No. 109 of 1980 filed before him, admittedly after expiry of the period of limitation.

2. The relevant facts giving rise to the present proceedings may be stated thus : --

Dijabar alias Dija Baral and Madhab Baral, the petitioners in C. R. 136 of 1981 filed O. S. No. 52 of 1977(1) in the Court of the Subordinate Judge, Puri for declaration of title and recovery of possession of the suit properties, A 0.99 decimals of land appertaining to Plot No. 59 under sthitiban Khata No. 27 in village Talabapa. During pendency of the suit the defendant No. 1, Bhabani died and opposite parties 1 to 5 were substituted in his place. None of the said opposite parties excepting opposite party No. 4, a minor who was represented by guardian appeared in the case. The other defendants were set ex parte. The suit was decreed by the trial Court by judgment dated 7-3-1979 and the decree was signed and sealed on 22-3-1979.

Thereafter the defendants (opposite parties) filed an application under Order 9, Rule 13, Civil P. C. to set aside the ex parte decree passed against them. The said application was dismissed by the Court by an order dated 25-2-1980.

Being aggrieved by the aforesaid order, the opposite parties preferred Misc. Appeal No. 109 of 1980 in the Court of the District Judge, Puri. The appeal was presented on 7-7-1980, long after expiry of the period of limitation, i.e. 30 days from the date of the impugned order. The memorandum of appeal was accompanied by a petition under Section 5, Limitation Act for condonation of delay filed by Manguli Scthi, appellant No. 2 in the appeal. The said petition was not supported by affidavit. The petitioners objected to the appeal being entertained on the ground of non-compliance with the provisions of Order 41, Rule 3A, Civil P. C. They also contested the plea of the appellant-opposite parties that there was sufficient cause for the delay in the facts and circumstances of the case.

On hearing the learned counsel for the parties and on consideration of the matter, the learned District Judge overruled the objection of the petitioners holding that the provisions of Order 41, Rule 3-A, Civil P. C. should be construed as directory and not mandatory. Hence, non-compliance with the said provisions does not affect the discretion vested in the Court under Section 5, Limitation Act to condone the delay in filing appeal in an appropriate case. He further held that in the facts and circumstances of the case there was sufficient cause for the delay in filing the appeal. Accordingly, the appellate Court allowed the petition under Section 5, Limitation Act, condoned the delay in filing the appeal subject to the condition that the appellant pay a sum of Rs. 110/- to the counsel appearing for the respondents by 15-1-1981, failing which the petition under Section 5 of the Limitation Act would stand dismissed and consequently the appeal would be held to have been barred by limitation and hence liable to be dismissed. This order of the appellate Court is the subject matter of challenge in the civil revision No. 136 of 1980.

3. In spite of the aforesaid order of the appellate Court, the appellants (opposite parties) did not pay the amount of cost to the counsel for the respondents (petitioners) by the specified date (15-1-1981) as directed by the Court, but filed an application on 15-1-1981 for extension of time. This application was objected to by the counsel on behalf of the appellants on the ground that in view of the specific order passed that the petition under Section 5, Limitation Act would stand dismissed on failure to pay the costs by 15-1-1981, the appellate Court had no jurisdiction to extend the period for payment of costs since it had become functus officio after passing the order dated 2-1-1981. The learned District Judge overruled the objection and extended the time for payment of costs till 22-1-1981. On 22-1-1981 when the counsel appearing for the respondents refused to accept the costs tendered on behalf of the opposite parties on the plea that the Court had no jurisdiction to extend the period for paymentof costs beyond 15-1-1981, the Court by its order dated 13-2-1981 reiterated its earlier view that it had ample power to extend the time granted for payment of costs on being satisfied that the facts and circumstances of the case warranted such extension. Accordingly, the appellate Court directed by the aforesaid order that the amount be tendered to the counsel for the respondents (petitioners) for acceptance on or before the 23rd instant, failing which the amount be deposited in Court by the date fixed. This order is under challenge in Civil Revision No. 137 of 1981.

4. From the facts narrated above, it is clear that the thrust of the argument on behalf of the petitioners is that since the opposite parties failed (to) comply with the provisions of Order 41, Rule 3-A, Civil P. C. in not filing a petition under Section 5, Limitation Act, supported by an affidavit, along with the memorandum of appeal, their application for condonation of delay was not available for being entertained by the Court. If the petitioners succeed on this contention, the order of the lower Court condoning the delay in filing the appeal has to be set aside and the subsequent order extending the period for payment of costs has necessarily to be vacated. Since the order turns on the interpretation of provision of Order 41, Rule 3-A, Civil P. C. it would be helpful to quote the said provision.

'3-A. Application for condonation ofdelay :

(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, decided to hear the appeal.

5. According to the petitioners, provisions of Order 41, Rule 3-A, Civil P. C. being mandatory in nature and the opposite parties having failed to comply with the same in not filing an application under Section 5, Limitation Act supported by an affidavit along with the memorandum of appeal, the appellate Court had no alternative but to dismiss the appeal in limine on the ground of limitation. On the other hand it is the contention on behalf of the opposite parties that the provisions of Order 41, Rule 3-A, Civil P. C. are only directory and non-compliance with the said provision does not deprive the Court of the discretion vested under Section 5, Limitation Act, to consider the question of condonation of delay and to pass appropriate orders on the application.

There is no controversy relating to the fact that on 7-7-1981 when the memorandum of appeal was presented in the Court of the District Judge, Puri, it was barred by limitation. It is also not in dispute that though an application under Section 5, Limitation Act was filed along with the memorandum of appeal it was not supported by affidavit. On the next day i.e. on 8-7-1981 a duly constituted petition under Section 5, Limitation Act supported by an affidavit was filed before the appellate Court.

6. The provisions under Order 41. Rule 3-A, Civil P. C. were introduced in the Code by amendment under Act 104 of 1976. Clause 90, Sub-clause 3, or the objects and reasons of the amending statute states that where an appeal is filed after the expiry of the period of limitation, it is the practice to admit it 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 for adopting the procedure for securing the final determination of the question as to limitation before admission of the appeal. New Rule 3-A is being narrated to give effect to the said recommendation. Thus it is clear that this rule is intended to do away with the practice of postponing consideration of the question of condonation of delay till hearing of the appeal or in other words admitting an appeal on the face of it barred by limitation, subject to the question of condonation of delay being considered at the time of hearing. It is not intended to affect in any manner the power of the Court vested under Section 5, Limitation Act. The proviso to Section 38 read with Section 38(2) ofthe said Act (sic) to condone the delay in filing the appeal on sufficient cause being shown for the delay. As the provisions of Section 5, Limitation Act show it is not necessary in law that the power of the Court to condone delay is circumscribed by an application being filed. The power to condone delay can be exercised on the appellant satisfying the Court that he had sufficient cause for not filing the appeal within the period prescribed. The Court can be satisfied even from the documents on the record. It is not necessary in law that an application must be filed. Of course as a matter of practice the appellant does file an application for the purpose. But the power of the Court is not necessarily dependent on a formal application being filed by the appellant. Even if there is no application but only an oral prayer is made for condonation of delay the Court is not powerless where there is material on the record to show facts constituting sufficient cause for condonation of delay, (vide AIR 1979 Delhi 26, Miss Nirmala Chaudhary v. Bisheshwar Lal).

7. The position is well settled that the power of condonation of delay under Section 5, Limitation Act is vested in the Court to do justice in appropriate and deserving cases, so that a litigant acting bona fide may not lose the opportunity of placing his grievance before the superior Court against any order passed against him by the subordinate Court. If the contention of the learned counsel for the petitioners is accepted then the Court will be powerless even in a most deserving case where application has been filed for condonation of delay, though it does not comply in strict sense with the requirements of Order 41, Rule 3-A, Civil P. C. Even if the Court finds that there is sufficient cause for condonation of delay, the Court would have no power even to require the applicant to rectify the defect in the application. Adopting such a procedure would go against the interest of justice which would never have been intended while introducing the provision of Order 41, Rule 3-A, Civil P. C. A fair interpretation of the said provision would be that it requires the appellant who presents an appeal after expiry of the period of limitation specified therefor, to file an application supported by an affidavit setting forth the reasons for delay in preferring the appeal, along with the memorandum of appeal. If he fails to file such an application while presentingthe appeal or files an application which is not supported by affidavit then it is open to him to file a duly constituted application subsequently explaining not only the delay in presenting the memorandum of appeal but also setting forth the cause for not filing the application for condonation of delay along with the memorandum of appeal. In such a case the bona fides of the application will be in question and the Court will consider it while taking up the application for condonation of delay. But it cannot be said that in every time-barred appeal where the memorandum of appeal is not accompanied by application for condonation of delay or accompanied by an application not supported by an affidavit, the Court is altogether powerless to consider the matter. Such an interpretation would defeat the very purpose, i.e., advancing the cause of justice, for which all procedural laws are framed.

In view of the aforesaid discussions, the contention raised on behalf of the petitioners that provisions of Order 41, Rule 3-A, Civil P. C. are mandatory in nature and the lower appellate Court had no jurisdiction to entertain the application under Section 5, Limitation Act, explaining the cause for the delay, filed by the opposite party on 8-7-1981 has to be rejected as devoid of merit.

8. The next question for consideration is whether the Order dated 13-2-1981 of the lower appellate Court extending the time for depositing the costs by the opposite parties was vitiated by error of jurisdiction. On this point the contention on behalf of the petitioners is that since the order dated 2-1-1981 expressly stated that in case the opposite parties fail to pay the counsel for the petitioners a sum of Rs. 110/- by 15th January, 1981, the under Section 5, Limitation Act would stand dismissed and consequently the appeal would be barred by limitation and hence liable to be dismissed, the Court became functus officio after passing the order and had no jurisdiction to entertain any application for extension of time. The contention on behalf of the opposite parties, on the other hand, is that even if it is held that the order dated 2nd January, 1981 is peremptory in nature the Court still retains its jurisdiction to extend the time granted for compliance with the order, on being satisfied that there is good cause for the failure of the party concerned to comply with the orderwithin the time. Reliance is placed on Section 148, Civil P. C. Though there was some controversy amongst the decisions of different High Courts regarding the nature of the orders in which the Court has the power to extend the period for compliance and in others in which it does not retain such power, the matter has been set at rest by the Supreme Court in the case of Mahanth Ram Das v. Ganga Das, AIR 1961 SC 882 where a peremptory order for payment of deficit Court-fee passed by the appellate Court while disposing of the appeal came up for consideration. The Court relying on the decision of the Privy Council in the case of Lachmi Narain Marwary v. Balmakund Marwary, AIR 1924 PC 198, came to hold as follows : --

'Held that the High Court was not powerless to enlarge the time even though it has peremptorily fixed the period for payment. Section 148, in terms, allowed extension of time, even if the original period fixed had expired, and Section 149 was equally liberal. A fortiori, those sections could be invoked by the applicant, when the time had not actually expired. An order extending time for payment, though passed after the expiry of the time fixed, could operate from the date on which the time fixed expired.

The procedural orders though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a Court from taking note of events and circumstances which happen within the time fixed.

Sections 148, 149 and 151 clothed the High Court with ample power to do justice to a litigant if sufficient cause was made for extension.'

A Full Bench of the Allahabad High Court in the case of Gobardhan Singh v. Barsati. AIR 1972 All 246 considering the jurisdiction of the Court to extend lime of payment of cost under an order with a default clause observed as follows : --

'Even in cases where an order is made by the Court for doing a thing within a particular time and the order further provides that the application, suit or appeal shall stand dismissed if the thing is not done within the time fixed, the Court has jurisdiction, if sufficient cause is made out, to extend the time even when the application for extension of time is made afterthe expiry of the time fixed. It is not the application for grant of further time, whether made before or after the expiry of the time granted, which confers jurisdiction on the Court. The Court possesses the jurisdiction under Section 148, Civil Procedure Code to enlarge the time and the application merely invokes that jurisdiction.'

In view of the principles laid down in the aforesaid decision, the lower appellate Court was right in holding that he had ample power to consider the application for extension of time which was filed on 15-1-1981, before expiry of the period fixed and could extend the time in view of the provisions under Sections 148 and 151, C.P.C.

9. Coming to the question whether the Court below was justified in condoning the delay in presentation of the appeal and in extending the period specified for payment of costs, these are pure questions of fact on which the Court below has given its finding on consideration of the materials placed and the arguments advanced on behalf of the parties. There is no scope for interference with the same by this Court in exercise of revisional jursdiction.

10. In view of the discussions aforesaid, the revision petitions are devoid of merit and they are accordingly dismissed. The parties are directed to bear their respective costs.


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