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State Of Karnataka v. Nagappa
Structured Summary of the Opinion — Revision Petition concerning sub-rule (1) of Rule 3A, Order 41 CPC
Factual and Procedural Background
This Revision Petition, referred for hearing and disposal by a Division Bench, concerns the scope and operation of sub-rule (1) of Rule 3A of Order 41 of the Code of Civil Procedure, 1908.
The material facts are narrow in compass. The State of Karnataka presented a time-barred appeal in the Court of District Judge, Gulbarga (the Appellate Court). The appeal, when presented, was not accompanied by an application for condonation of delay; such an application was filed subsequently and was numbered I.A. I in R.A. No. 55/83. When the Appellate Court took up the appeal along with the subsequently-filed application, a preliminary objection was raised — that a time-barred appeal presented without an accompanying application for condonation of delay (as required by sub-rule (1) of Rule 3A) was liable to be dismissed in limine — relying on a decision in Madhukar Daso Deshpande. The Appellate Court upheld that objection and, by its order dated 24th July 1984, dismissed the appeal. The State challenged that order by filing the present Revision Petition.
Legal Issues Presented
- Whether sub-rule (1) of Rule 3A of Order 41 (CPC) mandates that an application for condonation of delay must accompany a time-barred appeal when it is presented.
- If sub-rule (1) is mandatory, whether non-compliance by presenting a time-barred appeal without such an accompanying application compels the Court to dismiss the appeal in limine or whether the Court must afford an opportunity to remedy the defect.
- What is the proper procedural role and operation of sub-rule (1) in relation to Section 3 and Section 5 of the Limitation Act, 1963, and the timing for deciding the condonation application vis-à-vis hearing the appeal under Rule 11 or Rule 13 of Order 41.
- Whether a defectively presented time-barred appeal that is subsequently cured within time should be treated as properly presented as on the date of original presentation (i.e., whether cure relates back to the original presentation).
Arguments of the Parties
Appellant (State of Karnataka)
- The State presented a time-barred appeal which at the time of presentation did not have an accompanying application for condonation of delay; an application was filed subsequently and numbered I.A. I in R.A. No. 55/83.
- The State challenged the Appellate Court's order dated 24th July 1984 dismissing the appeal on the ground that the appeal was presented without an accompanying condonation application.
Respondent / Appellate Court
- The Appellate Court raised a preliminary objection that a time-barred appeal presented without being accompanied by an application for condonation of delay was liable to be dismissed in limine. This objection was raised relying upon the decision in Madhukar Daso Deshpande.
- On that basis the Appellate Court dismissed the appeal by its order dated 24th July 1984.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Madhukar Daso Deshpande (decision of a Learned Single Judge of this Court) | Held that where an appeal is presented beyond time the application for condonation of delay must accompany the appeal memo and the Court need not entertain such an application later; supported dismissal for non‑compliance. | The Appellate Court relied on this decision to dismiss the appeal in limine. The Division Bench approved that sub-rule (1) is mandatory but overruled Madhukar's conclusion that non-compliance permits outright/in‑limine dismissal; the Bench considered the Single Judge's contrary view as overruled to the extent indicated. |
| Krishnaswami v. Ramaswami, 41 Madras 412 (@417) (Privy Council) | Observed that an ex‑parte order admitting a time‑barred appeal would be open to reconsideration and that limitation questions should not be left till hearing; advocated deciding limitation at admission stage. | Used in legislative history to explain the motive for inserting Rule 3A — to secure final determination at admission stage. |
| Sundara Bai v. Collector, 43 Bombay 376 (@383) (Privy Council) | Expressed view that Indian Courts should adopt procedure securing final determination of limitation at stage of admission after due notice. | Referred to in legislative history supporting insertion of Rule 3A to secure final determination at admission. |
| Sangram Singh v. Election Tribunal, Kotah | Principle that codes of procedure are meant to facilitate justice and should not be construed too technically to frustrate justice. | Cited to support the proposition that procedural rules (like Rule 3A) should not be construed as imposing harsh penalties or as trapping litigants; supports giving reasonable opportunity to remedy defects. |
| Jai Jai Ram Manoharlal v. National Building Material Supply, Gurgaon, 1969 1 SCC 869 | Rules of procedure are handmaid to administration of justice; a party should not be denied relief merely due to procedural infractions. | Cited to reinforce that procedural defaults should not automatically bar relief and that flexibility is required consistent with justice. |
| Kalipada Das v. Bhimal Krishna, 1983 1 SCC 14 | Observation that a procedural step facilitating hearing cannot impede access to justice; context of penalty for non-compliance with furnishing Paper Books. | Used to support the view that procedural requirements must not be interpreted so as to impede access to justice; supports lenient remedy-oriented approach to non-compliance with Rule 3A(1). |
| Jagatdish Bhargav v. Jawaharlal Bhargav, A.I.R. 1961 SC 832 | On appeals defectively filed under Order 41 Rule 1: no rigid universal rule; appeals should be carefully scrutinised soon after filing and appellants required to remedy defects. | Applied by the Court as precedent for affording opportunity to rectify procedural defects rather than automatic dismissal; supports the view that defects should be remedied and related back to the original presentation date. |
| Padmavathi v. Kalu, AIR 1980 Kerala 173 | Held mandatory that condonation petition accompany an appeal presented after prescribed period. | Referred to as a source of support for the “must accompany” view; the Court noted that Padmavathi had been overruled by a later Division Bench decision (Mayadevi). |
| Mayadevi v. M.K. Krishna Bhattathiri, AIR 1981 Kerala 240 (Division Bench) | Division Bench overruled Padmavathi; used to justify a non‑draconian procedural approach. | Cited by the Court as supporting its view that, though sub-rule (1) is mandatory, non-compliance requires an opportunity to remedy rather than automatic dismissal. |
| State of Bihar v. Ray Chandi Nath Sahay, AIR 1983 Patna 189 | Decision of a High Court cited in support of the Court's approach to Rule 3A(1). | Referenced by the Court as another High Court decision aligning with its view that non-compliance should be cured rather than leading to immediate dismissal, though reasoning may differ. |
| M. Das Gupta v. Prakash K. Shah, AIR 1984 Bombay 390 | High Court decision cited in the context of Rule 3A(1) operation. | Cited as supportive authority from another High Court (Bombay) for the approach adopted by the Court, even though the cited cases' reasons might not be identical to the Court's reasons. |
Court's Reasoning and Analysis
The Court examined sub-rule (1) of Rule 3A of Order 41 CPC in language and legislative context. It proceeded in these analytic steps:
- Legislative background: The Court traced the insertion of Rule 3A to Privy Council observations (Krishnaswami; Sundara Bai) and Law Commission recommendations, which criticised the practice of postponing limitation objections until hearing and advocated final determination at admission. Rule 3A (sub-rules (1) and (2)) was enacted to implement that recommendation.
- Textual interpretation: Sub-rule (1) uses affirmative language requiring that an application for condonation of delay "shall" accompany an appeal presented after the prescribed period. From this, the Court concluded that sub-rule (1) is mandatory in nature: an appellant presenting a time-barred appeal must file the condonation application along with the appeal.
- Functional and contextual analysis: Despite its mandatory wording, sub-rule (1) is procedural — designed to (i) inform the appellant that a time-barred appeal will not be entertained if presented without the application, and (ii) inform the respondent that they need not prepare to meet the appeal unless condonation is granted. Crucially, the sub-rule does not itself prescribe a specific penalty (such as automatic dismissal) for non-compliance; unlike other provisions (e.g., sub-rule (1) of Rule 3 of the same Order, which authorizes rejection of incorrectly drawn appeals) no express sanction is prescribed.
- Interaction with the Limitation Act: Section 3 of the Limitation Act makes an appeal presented after the prescribed period liable to be dismissed because of the bar of limitation, but Section 5 permits courts to admit an appeal after the prescribed period if the appellant shows sufficient cause. The Court observed that how an appellant might rely on Section 5 was not articulated in the Limitation Act and that historically application for condonation of delay was regarded as the procedural step to invoke Section 5.
- Principle against harsh procedural constructions: Citing Sangram Singh, Jai Jai Ram Manoharlal, and Kalipada Das, the Court emphasised that procedural codes facilitate justice and should not be construed technically to trip up litigants; hence a procedural mandatory requirement should not be read as importing an automatic draconian penalty unless clearly stated.
- Appropriate remedy for non‑compliance: Reasoning from the procedural nature and legislative history and relying on Jagatdish Bhargav (which favours scrutiny and allowing rectification), the Court concluded that when a time-barred appeal is presented without the condonation application, the proper course is to treat the presentation as defective and afford the appellant a reasonable opportunity to remedy the defect (i.e., to file the condonation application). The Court held that dismissal of the appeal should be a last resort, available only if the appellant disregards the opportunity to cure the defect.
- Relation back: The Court held that when a defectively presented time-barred appeal is cured within the time allowed by the Court, the curing of the procedural defect relates back to the date of original presentation — the appeal should be regarded as properly presented on that original date.
- Treatment of Madhukar decision: The Court agreed with Madhukar that sub-rule (1) is mandatory in requiring an accompanying application, but disagreed with Madhukar's conclusion that the Court has no occasion to entertain such application later or to receive it at that stage in the interest of justice. The Court explicitly overruled Madhukar to that extent.
- Application to present facts: Applying its analysis to the facts, the Court found the Appellate Court's order dismissing the State's appeal in limine (relying on Madhukar) to be unsustainable. The Court set aside that order and directed remedial steps.
Holding and Implications
Holding (core ruling): The Revision Petition is allowed; the Appellate Court's order dated 24th July 1984 dismissing the appeal in limine is set aside, and the case is remitted to the Appellate Court with directions.
Specific directions and direct consequences:
- The Appellate Court is directed to finally decide the application for condonation of delay at the first instance.
- If the Appellate Court decides the condonation application in favour of the appellant, it is directed to hear the appeal on its merits and decide it.
- The Court held that sub-rule (1) of Rule 3A is mandatory in requiring an accompanying condonation application, but non-compliance is a procedural defect which the Court must allow the appellant an opportunity to remedy; dismissal in limine is not the automatic or exclusive remedy for non-compliance.
- The decision expressly overruled the aspect of Madhukar Daso Deshpande that foreclosed entertaining or receiving the condonation application at a later stage and that sustained immediate dismissal for non‑compliance; the Court approved Madhukar only insofar as it treated sub-rule (1) as mandatory.
The direct effect is the setting aside of the Appellate Court's dismissal and the remittal for adjudication of the condonation application and, if allowed, adjudication of the appeal on merits. The opinion explains the manner in which sub-rule (1) must be operated; it modifies the understanding adopted in the single-judge decision in Madhukar to the extent described above.
Venkatachala, J.:—
In this Revision Petition, which is before us, being referred for hearing and disposal by a Division Bench, we are concerned and have to deal with the scope and operation of sub-rule (1) of Rule 3A of Order 41 of the Code of Civil Procedure 1908 (for short ‘the Act’).
2. The material facts, which have given rise to the filing of this Revision Petition, lie in a narrow compass. The State of Karnataka (for short ‘the State’) presented in the Court of District Judge, Gulbarga (for short ‘the Appellate Court’) a time barred appeal. But, that appeal, when presented, was not accompanied by an application for condonation of delay. However, such an application came to be filed subsequently. The Appellate Court, which registered the said time barred appeal as R.A No. 55/83, numbered the said application as I.A I in that appeal. Later, when the Appellate Court took up the time barred appeal together with the application for condonation of delay for hearing, a preliminary objection, to wit, that time barred appeal having been presented without being accompanied by an application for condonation of delay as required under sub-rule (1) of Rule 3A of Order 41 of the Code was liable to be dismissed in limine, appears to have been raised relying upon a decision of a Learned Single Judge of this Court, in Madhukar Daso Deshpande v. Auant Nilkaodha Deshpande.1 That preliminary objection having been upheld by the Appellate Court, by its order dated 24th July 1984, the appeal itself has come to be dismissed. The validity of that order has been assailed by the State in the present Revision Petition. This is how, we are concerned and have to deal with the scope and operation of sub-rule (1) of Rule 3A of Order 41 of the Code, in the light of the arguments addressed from the Bar.
3. sub-rule (1) of Rule 3A of Order 41 of the Code reads:
“3A. 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.”
4. For a proper understanding of the exact scope and real operation of the sub-rule, it would be advantageous to refer at the outset as to why the need for filing an application for condonation of delay arises when a time barred appeal is preferred (presented) in a Court.
5. An appeal preferred after the prescribed period shall be dismissed because of the bar of limitation imposed by Section 3 of the Limitation Act, 1963 (for short ‘the Limitation Act’). As the operation of that Section, as seen therefrom, is made subject to Section 5 of the Limitation Act, an appeal may be admitted by a Court after the prescribed period, if the appellant satisfies the Court that he had sufficient cause for not preferring the appeal within such period. The fact that the appellant was misled by an order, practice or judgment of the High Court in ascertaining or computing the prescribed period, may be sufficient cause within the meaning of that Section 5, becomes clear from the explanation found thereto. As to how the benefit of Section 5 of the Limitation Act could be availed of by an appellant preferring a time barred appeal, is not specified in the Limitation Act. Even before Rule 3A was inserted in the Code, as a matter of practice, applications for condonation of delay were being filed into the Courts whenever time barred appeals were being presented. Filing of such an application was, in fact, regarded as a procedural step required to be complied with before a time barred appeal was decided by a Court.
6. We shall now refer to the Legislative history of Rule 3A wherein sub-rule (1) finds a place, as it will give the background as to why sub-rule (1) as also sub-rule (2) thereof which requires the Court to decide finally the application for condonation of delay made under sub-rule (1) before it can proceed to deal with the appeal under either Rule 11 or Rule 13 of Order 41 of the Code, came to be inserted.
7. In Krishnaswami v. Ramaswami . 41 Madras 412 @ 417. their Lordships of the Judicial Committee of the Privy Council, while holding that an ex-parte order admitting a time barred appeal would be open to reconsideration at the respondent's instance at hearing of such appeal, observed that the question of limitation should not, however, be left open till such a late stage as the hearing of the appeal, although that had been till then the usage in India. Again, in Sundara Bai v. Collector . 43 Bombay 376 @ 383. the Privy Council expressed the view that the Indian Courts should adopt a procedure which will secure, at the stage of admission, the final determination, after due notice to all parties, of any question of limitation affecting the competency of an appeal.
8. The Law Commission of India, in its Twenty-Seventh Report, at page 237, invited reference to its Fourteenth Report, wherein the above observations of the Privy Council had been noticed and stress was laid on the expediency of adopting a 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 and suggesting insertion of proposed Rule 3A in the Code for the purpose.
9. When Bill No. 27 of 1974 to amend the Code of Civil Procedure, 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 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 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 3A is being inserted to give effect to the said recommendation.”
10. That new Rule 3A 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 3A which was inserted into the Code, by clause (ii) of Section 87 of the Code of Civil Procedure (Amendment) Act, 1976.
11. We shall now proceed to ascertain the scope of sub-rule (1) of Rule 3A, 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 3A, 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 filled 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 under either Rule 11 or Rule 13 of Order 41 of the Code. A combined reading of sub-rules (1) and (2) of Rule 3A 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 3A becomes clear from the legislative history of new Rule 3A 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 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 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 3A 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 contexually 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 on 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.
14. In Sangram Singh v. 1. Election Tribunal, Kotah Tribunal,4 it is said thus:
“Now a code of procedure must be regarded as such. It is ‘procedure’, something designed to facilitate justice and further its ends-not a 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 is done to ‘both’ sides) lest the very means designed for the furtherance of justice be used to frustrate it.”
15. Again, in Jai Jai Ram Manoharlal v. National Building Material Supply, Gurgaon . 1969 1 SCC 869 it is said thus:
“Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertance or even infraction of the rules of procedure.”
16. Then, as late as in 1983, in Kalipada Das v. Bhimal Krishna . 1983 1 SCC 14 while dealing with a penalty awardable to an appellant who does not comply with a Court's order requiring him to comply with a procedural rule relating to furnishing of Paper Books within the prescribed time, it is said thus:
“A procedural step which facilitates hearing of the appeal, cannot impede access to justice.”
17. A Court, before which a time barred appeal comes up for hearing with no application made along with it under Section 5 of the Limitation Act, seeking condonation of delay’ has to necessarily dismiss it not because of non-compliance with sub-rule (1) of Rule 3A of Order 41 of the Code, but because of the operation of Section 3 of that Act. Therefore, what a Court can do when a time barred appeal is presented before it without being accompanied by an application for condonation of delay, is to regard such presentation as defective for non-compliance with sub-rule (1) of Rule 3A and taking into account the procedural nature of defect in such presentation, to afford to the appellant concerned a reasonable opportunity of remedying the defect, instead of proceeding to dismiss the appeal itself outright or in limine. Court has to make such approach inevitably and necessarily as the purpose of sub-rule (1) is only to secure at the stage of admission, the final determination of the question of limitation affecting the competence of the appeal. Such should be the approach to be made by a Court in giving effect to a sub-rule of the kind intended to ensure a final decision on the question of limitation before the appeal is taken up for hearing, receives support from what is said by the Supreme Court in Jagatdish Bhargav v. Jawaharlal Bhargav . A.I.R 1961 SC 832. when it was dealing with an appeal presented without complying with the mandatory requirement of sub-rule (1) of Rule 1 of Order 41, a mandatory sub-rule. It runs thus:
“It would thus be clear that no hard and fast rule of genera] applicability can be: laid down for dealing with appeals defectively filed under Order 41 Rule 1. Appropriate orders will have to be passed having regard to the circumstances of each case, but the most important step to take in cases of detective presentation of appeals is that they should be carefully scrutinised at the initial stage soon after they are filed and the appellant required to remedy the defects.”
18. Hence, in our view, mandatory sub-rule (1) of Rule 3A, 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 the appellant 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.
19. We shall now deal with the decision in Madhukar's case (supra) rendered by a Learned Single Judge of this Court, relying upon which the Appellate Court has dismissed the appeal by its order now under revision.
20. It is a decision rendered in a Regular Second Appeal. There, the validity of a judgment and decree of a first Appellate Court dismissing a time barred appeal, on the ground that no application for condonation of delay was filed therein had been assailed. In dismissing that Regular Second Appeal and affirming the judgment and decree of the Appellate Court appealed against, the Learned Single Judge held thus:
“in view of the mandatory provision of Order 41, Rule 3A of CPC, the application for condonation of delay shall be accompanied with the appeal memo, if the appeal is presented beyond time. There is no occasion for the Court to say that the application for condonation 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 (as) barred by time.”
Thereafter, the Learned Single Judge has referred to a decision of a Learned Single Judge of the Kerala High Court in Padmavathi v. Kalu . AIR 1980 Kerala 173. in which it was observed thus:
“It is mandatory for a person presenting an appeal after expiry of the period of limitation specified therefor to file application supported by an affidavit to satisfy the Court that he had sufficient cause for not preferring the appeal within such period. It is mandatory for the condonation petition to accompany the appeal.”
The Learned Single Judge appears to have sustained support for his view from the above observations without noticing a Division Bench decision of the same Court in Mayadevi v. M.K Krishna Bhattathiri . AIR 1981 Kerala 240. by which the decision in Padmavathi's case (supra) was over-ruled. It is obvious that the said Division Bench decision had not been brought to the notice of the Learned Single Judge and we consider this lapse as rather unfortunate.
22. Our view that sub-rule (1) of Rule 3A of Order 41 of the Code, is mandatory, since well accords with the view expressed by Learned Single Judge on this aspect in Madhukar's case (supra), we approve of the same. But, over view of sub-rule (1), to wit, that it does not enable a Court before which a time barred appeal is presented without being accompanied by an application for condonation of delay, to dismiss it out right or in limine and instead, requires the Court to afford to the appellant concerned, a reasonable opportunity of remedying such defect, since goes contrary to the view expressed in this regard by the Learned Single Judge in Madhukar's case (supra), with due respect to him, we over rule the same.
23. The view we have taken as to bow an appellate Court can make operative sub-rule (1) of Rule 3A, it has to be said, receives support from the decisions of High Courts of Kerala, Patna and Bombay Mayadevi v. M.K Krishna Bhattathiri State of Bihar v. Ray Chandi Nath Sahay . AIR 1983 Patna 189. and M. Das Gupta… v. Prakash K. Shah…. . AIR 1984 Bombay 390.) though the reasons given therefor, are not exactly the same as ours.
24. Reverting to the facts of the present Revision Petition, the order assailed here, is unsustainable and calls to be interfered with because of the views we have taken of the true scope and real operation of sub-rule (1) of Rule 3A of Order 41 of the Code.
25. In the result, we allow this Revision Petition, set aside the order under revision, and remit the case to the Appellate Court with a direction that it shall finally decide the application for condonation of delay at the first instance and if that is decided in favour of the appellant, to hear the appeal on merits and decide it.
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