Pooran Singh Rajput Vs. Indira Rajput - Court Judgment

Excerpt:
- - 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. 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 lime barred appeal when presented, so that it may be finally decided before the court can proceed to deal with the appeal under either rule 11 or rule 13 of order 41 of the code. the requirement relates to the stage of presentation of appeal otherwise the words 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 'will lose efficacy and will become redundant and the very purpose of introduction of rule 3-a in order 41, civil procedure code would be defeated. 16. there is no question of court being powerful or powerless.orderd.p.s. chauhan, j.1. the present appeal filed by pooran singh rajput is against the judgment and decree dated 30 10-1993 passed by first additional district judge, betul in civil suit no. 5-a/91 is admittedly beyond time provided for filing the first appeal in the high court under the indian limitation act, 1963 (for brevity hereinafter referred to as 'the act'). it is beyond time by 30 days. the appeal so filed was accompanied with an application for condonation of delay under section 5 of the act. it was not supported by any affidavit.2. in view of the provisions of sub-rule (3) of rule 3-a of order 41, civil procedure code, the question which cropped up for consideration is 'whether the appeal as filed, was competent?' rule 3-a of order 41, civil procedure code is as extracted below :-'3-a. 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.'3. so far as the facts relating to the merits of the appeal are concerned, they have no relevance qua the determination of the question as stated earlier. an affidavit for supporting the application for condonation of delay was filed subsequently on 8-3-1995.4. the language of the provision of sub-rule (3) of rule 3-a of order 41, civil procedure code makes it incumbent for the appellant for accompanying the memorandum of appeal by an application for condonation of delay 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 such period as provided for. this sub-rule comes into operation, the moment the limitation for filing of the appeal has run out.5. heard the learned counsel for the appellant, who made two fold submissions :-(1) firstly, the provision of rule 3-a is directory and not mandatory in nature and the non-compliance of the directory nature direction would not make the appeal incompetent.(2) secondly, the court is not powerless to entertain such an appeal not accompanied by an application and affidavit or accompanied by an application for condonation of delay but not 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 such period.6. learned counsel, in support of his first submission, relied on a case of orissa high court - dijabar v. sulabha, air 1986 ori 38 and relied on para 7 of the report, where the court observed as 'in view of the aforesaid discussions, the contention raised on behalf of the petitioners that provisions of order 41, rule 3-a, civil procedure code 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.'in this case too, the appeal which was filed on 7-7-1980, was accompanied by an application for condonation of delay but was not supported by an affidavit, setting forth the facts on which the appellant would have relied for satisfying the court that he had sufficient cause for not preferring an appeal within the period provided therefor, i find it difficult to persuade myself to agree with the view taken in the report (supra) which is founded on the proposition that the appellant would be realising the occurrence of such delay in presenting the appeal only when it pointed out to him either by the officer of the court or by his opponent.7. the next decision in this regard relied on is in the case of state of karnataka v. nagappa, air 1986 kar 199. in this case, the court in para 12, observed as under :-'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 that 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 lime barred appeal when presented, so that it may be finally decided before the court can proceed to deal with the appeal under 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.'in this case, the provision of sub-rule (1) of rule 3-a of order 41, civil procedure code is characterised to be mandatory.8. learned counsel for the appellant also invited the attention of the court to para 13 of the aforesaid report and the relevant portion whereof is as extracted below :-'13. sub-rule (1), in its very nature, is a procedural one. it is designed, as seen from its content, to achieve two purposes : (1) 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 lime barred appeal that it would not be necessary for him to get ready to meet the grounds of objection 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.'the view is basically based on the approach 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. the act is an independent statute and has independently provided for period of limitation for filing appeal. the presumption regarding law is that it is known to everybody concerning or not concerning from the date of publication in the government gazette. apart from this, in the present case, the appeal was got filed through an advocate, who can neither be held nor be presumed for not having the knowledge of the limitation. the office report of the knowledge from the opponent in the context of sub-rule (1) of rule 3-a has no relevance of bearing. the requirement relates to the stage of presentation of appeal otherwise the words 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 'will lose efficacy and will become redundant and the very purpose of introduction of rule 3-a in order 41, civil procedure code would be defeated. the purpose behind the observation in krishna swami v. ramaswami, air 1917 pc 179 and surendra bai v. collector, air 1918 pc 135 was to avoid the delay in disposal of appeals and deprecation of the prevailing practice in india. the rule 3-a was introduced in schedule i, order 41 by means of amendment act, 1976.9. the law commission report as relied in the case of state v. nagappa (supra) also speaks about the procedure for securing at the stage of admission, the final determination, after due notice of the question of limitation affecting the competence of the appeal. the very purpose thus is speedy settlement of question of limitation avoiding the pendency of time barred appeal for fulfilment of multifarious preliminaries, such as filing of application for condonation of delay after presentation of appeal, thereafter filing of the affidavit setting forth the facts relating to delay and this used to take a period about 5 to 10 years. it is this mischief which is sought to be plugged by rule 3-a. the construction of such a provision, may be procedural one, has to be purpose oriented and the observation of the supreme court 'a procedural step which facilitates hearing of the appeal cannot impede access to justice' in kalipada das v. b.k. sen gupta, air 1983 sc 876, is not attracted here.10. the learned counsel for the appellant further relied on a decision in state of bihar v. ray chandi nath sahay, air 1983 patna 189 and on the basis of this decision, the argument as built up was that the provision of rule 3-a of order 41, civil procedure code is not mandatory. in para 2 of the said report, for interpreting the word 'shall' reliance was placed on two cases of supreme court viz. (i) collector of monghyr v. keshav prasad goenka, air 1962 sc 1694 and (ii) state of madhya pradesh v. azad bharat finance co., 1967 mplj 14, air 1967 sc 276 for the proposition that the expression 'shall' is not always expressive of the mandatory character of a provision in all cases. despite the use the word 'shall' the provision may only be directory. the test for determination was whether the provision is mandatory or directory is to be tested with regard to the fact whether the provision provides sanction for not complying with the direction, i.e. entailing of the consequences. the case of state of madhya pradesh v. azad bharat finance co. (supra) related to the interpretation of the provision of section 11 of the opium act. in the opium act, 1878 in section 11, the relevant words are as follows :'section 11. confiscation of opium. - in any case in which any opium liable to confiscation under this section is found, and the other contents (if any) of the vessel or package in which such opium may be concealed, and the animals and conveyances used in carrying it, shall likewise be liable to confiscation.'the words 'liable to confiscation' were held to be permissible and not obligatory. the decision in this case is in different context and it is not attracted to the facts and circumstances and controversy in the present case. in the present case, the statutory obligation has been cast on the person preferring an appeal that the appeal, if it is being filed after the expiry of the period of limitation, shall be accompanied by an application supported by an affidavit. where an obligation is cast by statute, then such obligation is always mandatory. there can be no discretion with the person filing an appeal for complying or not complying with the mandate of the statute. the cases relied on and referred to above do not hold field here.11. the other case of the supreme court is collector of monghyr v. keshav prasad goenka (supra). there also the matter came up for consideration was regarding the interpretation of the statute about its character as to mandatory or directory. in para 12 of the said case, section 5a of bihar private irrigation works act (b and o 5 of 1922) (as amended bihar act no. 10 of 1939), empowered the collector by providing 'whenever the collector, for reasons to be recorded by him, is of opinion that the delay in the repair of any existing irrigation work which may be occasioned by proceedings commenced by a notice under section 3 adversely affects or is likely to affect adversely lands which are dependent on such irrigation work for a supply of water, he may forthwith cause the repair of such irrigation to be begun by any one or more of the persons mentioned in clause (ii) of section 3 or by such agency as he thinks proper.' whether the power of the collector was subject to his satisfaction and the question for consideration before the supreme court was regarding the condition or the requirement relating to the 'recording of reasons' was mandatory or was directory. in the case relied on the word 'shall' was required to be interpreted and the court observed that 'it is not necessary to refer, for it ultimately depends on the construction of each enactment and none of the decisions relied on were really in pan materia with the case now before us.' this case is also of no avail, so far as the mandatory or directory character of the provisions of rule 3-a of order 41, civil procedure code are concerned. it also does not hold the field here.12. next case relied on is naran anappa shethi v. jayantilal chunilal shah, air 1987 guj 205. in this case, in para 7, the court held the provision of rule 3-a cannot be said to be mandatory for the reasons stated in that paragraph. in this case, reliance was placed regarding the observations of the supreme court in the case of sanoram singh v. election tribunal, kotah, air 1955 sc 425 which were to the following effect :-'this procedure is something designed to facilitate justice and further its ends; not penal enactment for punishment and penalties; not a thing designed to trip people up. too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice be done to both sides) lest the very means designed for the furtherance of justice to be used to frustrate it.'and the court said 'therefore, unless there is compulsion, the procedural law should be read so as to advance the cause of justice and should not be strictly construed so that the vested rights of the parties to get the matter adjudicated on merits, are frustrated.' the said decision i respectfully consider. so far as the observations of the supreme court in that case were considered there is no quarrel that too technical view should not be taken but the emphasis is on the words 'provided always that justice is done to both the sides.' here, as observed by the supreme court there is compulsion under rule 3-a and it has to be interpreted keeping up the purpose of compulsion.13. it is a settled proposition of law that when the limitation is expired, then, a valuable right has accrued to the other side (respondent) and that right which has accrued, to the respondent, cannot be lightly interfered with. the decision relied on, stated that therefore unless there is compulsion, the procedural law should be read so as to advance the cause of justice. here in the present case, rule 3-a imposes a compulsion on the appellant that the appeal, if barred by time, shall be accompanied by an application supported by an affidavit.14. it is a settled proposition of law that when a statute required a thing to be done in a particular manner it has to be done in that particular manner or not be done at all. the first case on the point is tailor v. tailor, 126 t 1936 pc 253 (chancery division) and thereafter in abdul nazir and assistant collector of central excise, calcutta v. national tobacco co. of india ltd., air 1972 sc 2563 the principle as enunciated in tailor v. tailor (supra) case has not received any variance. here in the present case, the party is required to file a time barred appeal in a particular manner after following a particular procedure and that procedure has not been complied with.15. in my view the provisions of sub-rule (1) of rule 3-a are mandatory and there can be no exception for any thing giving option for deviation from the mandatory provision of law especially allowing for violation of the mandate of the legislation.16. there is no question of court being powerful or powerless. the question involved is what is required to be done in the face of the mandate of the legislation. the appellant cannot, in any circumstance, be allowed for violating the mandate of law. a reliance was placed on the case of mayadevi v. m.k. krishna, air 1981 ker 240. in this case, the appeal was filed on 9-9-1980. on that date the time provided for filing the appeal was over but on an application to excuse the delay having been filed along with the appeal, the registrar returned the memo of appeal and granted 15 days' time to cure the defect. in that case, the court observed that it may not be correct to say that if the memo of appeal is not accompanied by an application to explain the delay, the court cannot return the memo of appeal with a direction to cure the defect and after curing the defect, the appeal is treated as validly presented.being a rule of practice if a defect is found in the matter of presentation of a proceeding before the court, it is open to the court if any other provision of law permits, to call upon the party to cure the defects. here the emphasis is on the part 'if any other provision of law permits.' in that case, the court considered the provisions of section 5 of the kerala court fees act regarding the payment of court fees with the aid of section 149, civil procedure code. this case has no bearing to the facts, circumstances and the controversy involved in the present case.17. so far as the. section 4 of the court fees act, 1870 is concerned, it reads as under:-'4. fees on documents filed etc. in their extraordinary jurisdiction. - no document of any of the kinds specified in the first or second schedule to this act annexed as chargeable with fees, shall be filed, exhibited or recorded in, or shall be received or furnished by any of the said high courts in any case, coming before such court in the exercise of its extraordinary original civil jurisdiction;or in the exercise of its extraordinary original criminal jurisdiction;or in the exercise of its jurisdiction as regards appeal from the courts subject to its superintendence;or in the exercise of its jurisdiction as a court of reference or revision;unless in respect of such document there be paid a fee or an amount not less than that indicated by either of the said schedules as the proper fee for such document.'this provision puts a restriction regarding filing of the petition or appeal on deficient court fees. section 149, civil procedure code which is as extracted below, empowers the court for the purpose of allowing for making up the deficiency of court fees :-'149. power to make up deficiency of court-fees. -- where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fees has not been paid, the court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee has been paid in the first instance.'18. this provision came up for consideration in the case of state of orissa v. rajnikant, air 1988 ori 56, 57 in para 4 of the said report it has been observed that the provision being in a statute has to be interpreted strictly in accordance with the language of the statute. to mitigate the rigour, section 149 has been enacted which has the effect of being a proviso to section 4 and therefore both the provisions are to be read harmoniously. in that case, reliance was placed on the case of mannan lal v. chhotka bibi, air 1971 sc 1374. but present is not a case where section 148, civil procedure code could be made applicable, as no aid of section 148, civil procedure code can be taken. section 148, civil procedure code is applicable for enlargement of time where the time is fixed or granted by the court. here the limitation has been prescribed by the statute which has already run out and the only thing to get out of the impede of limitation is to make an application for condonation of delay together with an affidavit as per requirement of rule 3-a of order 41, civil procedure code. thus, the application together with affidavit for condonation of delay has to be accompanied with the memo of appeal.19. reliance is also placed on rule 1 of order 41, civil procedure code which says that every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the court or to such officer as it appoints in this behalf. the memorandum shall be accompanied by a copy of the decree appealed from and (unless the appellate court dispenses therewith) of the judgment on which it is founded. this provision itself has provided apropos, though the accompanying of the copy of the decree appealed against is obligatory but the provision itself has empowered the court for dispensation, as the provision has said that the memorandum of appeal shall be accompanied by a copy of the decree appealed from unless the appellate court dispenses therewith. here, rule 3-a of order 41 makes no such exception and the appellant has to follow the mandate of law for filing the appeal.20. in view of the above, i find that the appeal as filed was not competent. since the law has not provided the consequences as to what ought to have been done in such a situation, and the provision has not said for dismissal of the appeal, as is provided under order 41, rule 17, civil procedure code. the main purpose is advancement of justice and advancement of justice by due obedience to the mandate of the law. the mandate of the law may be in a procedural statute, but is of a mandatory character warranting due compliance and the mandate of legislature, which is for the purpose of accelerating the cause of justice cannot allowed to be obeyed in disobedience.21. in the circumstances, the appeal cannot be dismissed for non-compliance of the provisions of rule 3-a of order 41, civil procedure code. the appeal as presented itself was incompetent and ought not to have been accepted by the registry of the court. the propriety for the court, satisfying the cause of justice is to direct for the return of the appeal so that the appellant may have the opportunity for filing his appeal after complying with the provisions of rule 3-a of order 41, civil procedure code.22. in view of above, the memo of appeal together with the certified copy of the judgment and 'decree appealed against, is directed to be returned to the appellant within three days, subject to the application having been made by the learned counsel for the appellant, so that the appellant may act according to law.

Judgment:
ORDER

D.P.S. Chauhan, J.

1. The present appeal filed by Pooran Singh Rajput is against the judgment and decree dated 30 10-1993 passed by First Additional District Judge, Betul in Civil Suit No. 5-A/91 is admittedly beyond time provided for filing the first appeal in the High Court under the Indian Limitation Act, 1963 (for brevity hereinafter referred to as 'the Act'). It is beyond time by 30 days. The appeal so filed was accompanied with an application for condonation of delay under Section 5 of the Act. It was not supported by any affidavit.

2. In view of the provisions of sub-rule (3) of Rule 3-A of Order 41, Civil Procedure Code, the question which cropped up for consideration is 'whether the appeal as filed, was competent?' Rule 3-A of Order 41, Civil Procedure Code is as extracted below :-

'3-A. 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.'

3. So far as the facts relating to the merits of the appeal are concerned, they have no relevance qua the determination of the question as stated earlier. An affidavit for supporting the application for condonation of delay was filed subsequently on 8-3-1995.

4. The language of the provision of sub-rule (3) of Rule 3-A of Order 41, Civil Procedure Code makes it incumbent for the appellant for accompanying the memorandum of appeal by an application for condonation of delay 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 such period as provided for. This sub-rule comes into operation, the moment the limitation for filing of the appeal has run out.

5. Heard the learned counsel for the appellant, who made two fold submissions :-

(1) Firstly, the provision of Rule 3-A is directory and not mandatory in nature and the non-compliance of the directory nature direction would not make the appeal incompetent.

(2) Secondly, the Court is not powerless to entertain such an appeal not accompanied by an application and affidavit or accompanied by an application for condonation of delay but not 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 such period.

6. Learned counsel, in support of his first submission, relied on a case of Orissa High Court - Dijabar v. Sulabha, AIR 1986 Ori 38 and relied on para 7 of the report, where the Court observed as

'In view of the aforesaid discussions, the contention raised on behalf of the petitioners that provisions of Order 41, Rule 3-A, Civil Procedure Code 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.'

In this case too, the appeal which was filed on 7-7-1980, was accompanied by an application for condonation of delay but was not supported by an affidavit, setting forth the facts on which the appellant would have relied for satisfying the Court that he had sufficient cause for not preferring an appeal within the period provided therefor, I find it difficult to persuade myself to agree with the view taken in the report (supra) which is founded on the proposition that the appellant would be realising the occurrence of such delay in presenting the appeal only when it pointed out to him either by the officer of the Court or by his opponent.

7. The next decision in this regard relied on is in the case of State of Karnataka v. Nagappa, AIR 1986 Kar 199. In this case, the Court in Para 12, observed as under :-

'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 that 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 lime barred appeal when presented, so that it may be finally decided before the Court can proceed to deal with the appeal under 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.'

In this case, the provision of sub-rule (1) of Rule 3-A of Order 41, Civil Procedure Code is characterised to be mandatory.

8. Learned counsel for the appellant also invited the attention of the Court to Para 13 of the aforesaid report and the relevant portion whereof is as extracted below :-

'13. Sub-rule (1), in its very nature, is a procedural one. It is designed, as seen from its content, to achieve two purposes : (1) 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 lime barred appeal that it would not be necessary for him to get ready to meet the grounds of objection 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.'

The view is basically based on the approach 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. The Act is an independent statute and has independently provided for period of limitation for filing appeal. The presumption regarding law is that it is known to everybody concerning or not concerning from the date of publication in the Government Gazette. Apart from this, in the present case, the appeal was got filed through an Advocate, who can neither be held nor be presumed for not having the knowledge of the limitation. The office report of the knowledge from the opponent in the context of sub-rule (1) of Rule 3-A has no relevance of bearing. The requirement relates to the stage of presentation of appeal otherwise the words 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 'will lose efficacy and will become redundant and the very purpose of introduction of Rule 3-A in Order 41, Civil Procedure Code would be defeated. The purpose behind the observation in Krishna Swami v. Ramaswami, AIR 1917 PC 179 and Surendra Bai v. Collector, AIR 1918 PC 135 was to avoid the delay in disposal of appeals and deprecation of the prevailing practice in India. The Rule 3-A was introduced in Schedule I, Order 41 by means of Amendment Act, 1976.

9. The Law Commission Report as relied in the case of State v. Nagappa (supra) also speaks about the procedure for securing at the stage of admission, the final determination, after due notice of the question of limitation affecting the competence of the appeal. The very purpose thus is speedy settlement of question of limitation avoiding the pendency of time barred appeal for fulfilment of multifarious preliminaries, such as filing of application for condonation of delay after presentation of appeal, thereafter filing of the affidavit setting forth the facts relating to delay and this used to take a period about 5 to 10 years. It is this mischief which is sought to be plugged by Rule 3-A. The construction of such a provision, may be procedural one, has to be purpose oriented and the observation of the Supreme Court 'A procedural step which facilitates hearing of the appeal cannot impede access to justice' in Kalipada Das v. B.K. Sen Gupta, AIR 1983 SC 876, is not attracted here.

10. The learned counsel for the appellant further relied on a decision in State of Bihar v. Ray Chandi Nath Sahay, AIR 1983 Patna 189 and on the basis of this decision, the argument as built up was that the provision of Rule 3-A of Order 41, Civil Procedure Code is not mandatory. In Para 2 of the said report, for interpreting the word 'shall' reliance was placed on two cases of Supreme Court viz. (i) Collector of Monghyr v. Keshav Prasad Goenka, AIR 1962 SC 1694 and (ii) State of Madhya Pradesh v. Azad Bharat Finance Co., 1967 MPLJ 14, AIR 1967 SC 276 for the proposition that the expression 'shall' is not always expressive of the mandatory character of a provision in all cases. Despite the use the word 'shall' the provision may only be directory. The test for determination was whether the provision is mandatory or directory is to be tested with regard to the fact whether the provision provides sanction for not complying with the direction, i.e. entailing of the consequences. The case of State of Madhya Pradesh v. Azad Bharat Finance Co. (supra) related to the interpretation of the provision of section 11 of the Opium Act. In the Opium Act, 1878 in section 11, the relevant words are as follows :

'Section 11. Confiscation of opium. - In any case in which any opium liable to confiscation under this section is found, and the other contents (if any) of the vessel or package in which such opium may be concealed, and the animals and conveyances used in carrying it, shall likewise be liable to confiscation.'

The words 'liable to confiscation' were held to be permissible and not obligatory. The decision in this case is in different context and it is not attracted to the facts and circumstances and controversy in the present case. In the present case, the statutory obligation has been cast on the person preferring an appeal that the appeal, if it is being filed after the expiry of the period of limitation, shall be accompanied by an application supported by an affidavit. Where an obligation is cast by statute, then such obligation is always mandatory. There can be no discretion with the person filing an appeal for complying or not complying with the mandate of the statute. The cases relied on and referred to above do not hold field here.

11. The other case of the Supreme Court is Collector of Monghyr v. Keshav Prasad Goenka (supra). There also the matter came up for consideration was regarding the interpretation of the statute about its character as to mandatory or directory. In para 12 of the said case, section 5A of Bihar Private Irrigation Works Act (B and O 5 of 1922) (as amended Bihar Act No. 10 of 1939), empowered the Collector by providing 'whenever the Collector, for reasons to be recorded by him, is of opinion that the delay in the repair of any existing irrigation work which may be occasioned by proceedings commenced by a notice under section 3 adversely affects or is likely to affect adversely lands which are dependent on such irrigation work for a supply of water, he may forthwith cause the repair of such irrigation to be begun by any one or more of the persons mentioned in clause (ii) of section 3 or by such agency as he thinks proper.' Whether the power of the Collector was subject to his satisfaction and the question for consideration before the Supreme Court was regarding the condition or the requirement relating to the 'recording of reasons' was mandatory or was directory. In the case relied on the word 'shall' was required to be interpreted and the Court observed that 'it is not necessary to refer, for it ultimately depends on the construction of each enactment and none of the decisions relied on were really in pan materia with the case now before us.' This case is also of no avail, so far as the mandatory or directory character of the provisions of Rule 3-A of Order 41, Civil Procedure Code are concerned. It also does not hold the field here.

12. Next case relied on is Naran Anappa Shethi v. Jayantilal Chunilal Shah, AIR 1987 Guj 205. In this case, in para 7, the Court held the provision of Rule 3-A cannot be said to be mandatory for the reasons stated in that paragraph. In this case, reliance was placed regarding the observations of the Supreme Court in the case of Sanoram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425 which were to the following effect :-

'This procedure is something designed to facilitate justice and further its ends; not penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice be done to both sides) lest the very means designed for the furtherance of justice to be used to frustrate it.'

and the Court said 'therefore, unless there is compulsion, the procedural law should be read so as to advance the cause of justice and should not be strictly construed so that the vested rights of the parties to get the matter adjudicated on merits, are frustrated.' The said decision I respectfully consider. So far as the observations of the Supreme Court in that case were considered there is no quarrel that too technical view should not be taken but the emphasis is on the words 'Provided always that justice is done to both the sides.' Here, as observed by the Supreme Court there is compulsion under Rule 3-A and it has to be interpreted keeping up the purpose of compulsion.

13. It is a settled proposition of law that when the limitation is expired, then, a valuable right has accrued to the other side (respondent) and that right which has accrued, to the respondent, cannot be lightly interfered with. The decision relied on, stated that therefore unless there is compulsion, the procedural law should be read so as to advance the cause of justice. Here in the present case, Rule 3-A imposes a compulsion on the appellant that the appeal, if barred by time, shall be accompanied by an application supported by an affidavit.

14. It is a settled proposition of law that when a statute required a thing to be done in a particular manner it has to be done in that particular manner or not be done at all. The first case on the point is Tailor v. Tailor, 126 T 1936 PC 253 (Chancery Division) and thereafter in Abdul Nazir and Assistant Collector of Central Excise, Calcutta v. National Tobacco Co. of India Ltd., AIR 1972 SC 2563 the principle as enunciated in Tailor v. Tailor (supra) case has not received any variance. Here in the present case, the party is required to file a time barred appeal in a particular manner after following a particular procedure and that procedure has not been complied with.

15. In my view the provisions of sub-rule (1) of Rule 3-A are mandatory and there can be no exception for any thing giving option for deviation from the mandatory provision of law especially allowing for violation of the mandate of the legislation.

16. There is no question of Court being powerful or powerless. The question involved is what is required to be done in the face of the mandate of the legislation. The appellant cannot, in any circumstance, be allowed for violating the mandate of law. A reliance was placed on the case of Mayadevi v. M.K. Krishna, AIR 1981 Ker 240. In this case, the appeal was filed on 9-9-1980. On that date the time provided for filing the appeal was over but on an application to excuse the delay having been filed along with the appeal, the Registrar returned the memo of appeal and granted 15 days' time to cure the defect. In that case, the Court observed that it may not be correct to say that if the memo of appeal is not accompanied by an application to explain the delay, the Court cannot return the memo of appeal with a direction to cure the defect and after curing the defect, the appeal is treated as validly presented.

Being a rule of practice if a defect is found in the matter of presentation of a proceeding before the Court, it is open to the court if any other provision of law permits, to call upon the party to cure the defects. Here the emphasis is on the part 'if any other provision of law permits.' In that case, the Court considered the provisions of section 5 of the Kerala Court Fees Act regarding the payment of Court fees with the aid of section 149, Civil Procedure Code. This case has no bearing to the facts, circumstances and the controversy involved in the present case.

17. So far as the. section 4 of the Court Fees Act, 1870 is concerned, it reads as under:-

'4. Fees on documents filed etc. in their extraordinary jurisdiction. - No document of any of the kinds specified in the First or Second Schedule to this Act annexed as chargeable with fees, shall be filed, exhibited or recorded in, or shall be received or furnished by any of the said High Courts in any case, coming before such court in the exercise of its extraordinary original civil jurisdiction;

or in the exercise of its extraordinary original criminal jurisdiction;

or in the exercise of its jurisdiction as regards appeal from the Courts subject to its superintendence;

or in the exercise of its jurisdiction as a Court of reference or revision;

Unless in respect of such document there be paid a fee or an amount not less than that indicated by either of the said Schedules as the proper fee for such document.'

This provision puts a restriction regarding filing of the petition or appeal on deficient Court fees. Section 149, Civil Procedure Code which is as extracted below, empowers the Court for the purpose of allowing for making up the deficiency of Court fees :-

'149. Power to make up deficiency of Court-fees. -- Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fees has not been paid, the court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee has been paid in the first instance.'

18. This provision came up for consideration in the case of State of Orissa v. Rajnikant, AIR 1988 Ori 56, 57 in para 4 of the said report it has been observed that the provision being in a statute has to be interpreted strictly in accordance with the language of the statute. To mitigate the rigour, section 149 has been enacted which has the effect of being a proviso to section 4 and therefore both the provisions are to be read harmoniously. In that case, reliance was placed on the case of Mannan Lal v. Chhotka Bibi, AIR 1971 SC 1374. But present is not a case where section 148, Civil Procedure Code could be made applicable, as no aid of section 148, Civil Procedure Code can be taken. Section 148, Civil Procedure Code is applicable for enlargement of time where the time is fixed or granted by the Court. Here the limitation has been prescribed by the statute which has already run out and the only thing to get out of the impede of limitation is to make an application for condonation of delay together with an affidavit as per requirement of Rule 3-A of Order 41, Civil Procedure Code. Thus, the application together with affidavit for condonation of delay has to be accompanied with the memo of appeal.

19. Reliance is also placed on Rule 1 of Order 41, Civil Procedure Code which says that every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded. This provision itself has provided apropos, though the accompanying of the copy of the decree appealed against is obligatory but the provision itself has empowered the Court for dispensation, as the provision has said that the memorandum of appeal shall be accompanied by a copy of the decree appealed from unless the appellate Court dispenses therewith. Here, Rule 3-A of Order 41 makes no such exception and the appellant has to follow the mandate of law for filing the appeal.

20. In view of the above, I find that the appeal as filed was not competent. Since the law has not provided the consequences as to what ought to have been done in such a situation, and the provision has not said for dismissal of the appeal, as is provided under Order 41, Rule 17, Civil Procedure Code. The main purpose is advancement of justice and advancement of justice by due obedience to the mandate of the law. The mandate of the law may be in a procedural statute, but is of a mandatory character warranting due compliance and the mandate of Legislature, which is for the purpose of accelerating the cause of justice cannot allowed to be obeyed in disobedience.

21. In the circumstances, the appeal cannot be dismissed for non-compliance of the provisions of Rule 3-A of Order 41, Civil Procedure Code. The appeal as presented itself was incompetent and ought not to have been accepted by the Registry of the Court. The propriety for the Court, satisfying the cause of justice is to direct for the return of the appeal so that the appellant may have the opportunity for filing his appeal after complying with the provisions of Rule 3-A of Order 41, Civil Procedure Code.

22. In view of above, the memo of appeal together with the certified copy of the judgment and 'decree appealed against, is directed to be returned to the appellant within three days, subject to the application having been made by the learned counsel for the appellant, so that the appellant may act according to law.