TMI Blog2010 (2) TMI 1114X X X X Extracts X X X X X X X X Extracts X X X X ..... ent were to observe any further defects in the appeal memorandum pursuant to its rectification by letter dated December 4, 2007, annexure G, it is open for the second respondent to issue proper notice calling upon the petitioner to rectify the defects and thereafter to hear the appeal and dispose of the same as if it was filed on December 14, 2006, subject to the petitioner paying costs of ₹ 2,000 to be deposited under the head of account "004 sales tax", within a fortnight from today. - Writ Petition No. 4491 of 2010 - - - Dated:- 22-2-2010 - RAM MOHAN REDDY, J. For the Appellant : Smt. Vani H. For the Respondents : K.M. Shivayogiswamy, Additional Government Advocate, ORDER:- RAM MOHAN REDDY J.- The petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the petitioner that the letter dated December 16, 2006, annexure F of the first respondent addressed to the petitioner calling upon him to comply with the defects in the appeal memorandum was not received by him and hence could not comply with the requirements, within the statutory period of 20 days contemplated by rule 28(4)(a) of the Rules. The first respondent by order dated March 12, 2008, annexure H rejected the appeal as not maintainable on the ground of limitation. Hence this petition. 2. Heard the learned counsel for the petitioner, perused the pleadings and examined the order impugned. 3. Section 20(4) of the Act states that the appeal shall be in the prescribed form, and shall be verified in the prescribed manner. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner to rectify the defects in the appeal was not received, no material is forthcoming from the first respondent that as a matter of fact, annexure F though served on the petitioner, there was non compliance. 6. In the circumstances, the question for decision making is whether it is the objective of the court to decide the right of parties or punish them for mistakes which they make in the conduct of their cases? 7. In similar though not identical circumstance the apex court, in State of M.P. v. Pradeep Kumar [2000] 7 SCC 372 having regard to the use of the word shall in order 41, rule 3A, sub-rule (1) of the Civil Procedure Code held thus: The use of the word 'shall' in order 41, rule 3A(1) does not foreclose a cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well recognised exceptions to this principle are: (i) where the statute prescribing the procedure, also prescribes specifically the consequence of non-compliance; (ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it; (iii) where the non-compliance or violation is proved to be deliberate or mischievous; (iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of limitation, cannot be countenanced. I say so because if the letter, annexure G is considered as rectification of the defects in the appeal, annexure B then it is not known as to why the first respondent did not ensure service of the letter dated December 16, 2006, annexure F, on petitioner under rule 28(4)(a) to rectify the defects. Had the Appeals Officer served the letter, annexure F on the petitioner, perhaps, there was justification to contend that the failure to rectify the defects within the statutory period of 20 days, therefrom, the appeal was liable to be rejected. 10. In the result, the order impugned recording a finding that the appeal filed on December 4, 2007, annexure G was beyond the period of limitation and lia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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