TMI Blog2000 (9) TMI 1042X X X X Extracts X X X X X X X X Extracts X X X X ..... delayed appeal was presented without accompanying an application to condone the delay. An order so passed by the High Court is now being assailed before us by special leave. A suit was filed by the respondents against the State of Madhya Pradesh and one of its Sales Tax Officers for a decree of declaration of their title and consequential injunction in respect of a residential building. The suit was dismissed on the ground of want of jurisdiction to entertain the suit. The plaintiffs filed an appeal before the District Court against the dismissal and the District Judge reversed the decision of the trial court regarding jurisdiction and remanded the case to the trial court for disposal of the suit on merits. On 10.12.1996 the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces of not filing an application for condoning the delay along with the filing of the appeal. Learned Single Judge has stated the following for the purpose of meeting the aforesaid contention advanced by the appellants. Similar question had arisen before this Court in First Appeal No. 1077 95 decided on 3.8.95,and this Court took the view that as the appeal was not accompanied with application for condonation of delay and affidavit, stating the fact, the appeal was not competent. In view of this specific finding of the learned Single Judge, the decision of the Karnataka High Court cannot help the learned counsel for the appellants. Learned counsel for the appellants contended that the High Court has placed a very narrow constructio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be cured by the party concerned and present the appeal without further delay. No doubt sub-rule (1) of Rule 3-A has used the word shall . It was contended that employment of the word shall would clearly indicate that the requirement is peremptory in tone. But such peremptoriness does not foreclose a chance for the appellant to rectify the mistake, either on his own or being pointed out by the court. The word shall in the context need be interpreted as an obligation case on the appellant. Why should a more restrictive interpretation be placed on the sub-rule? The rule cannot be interpreted very harshly and make the non-compliance punitive to appellant. It can happen that due to some mistake or lapse an appellant may omit to file the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tee and Ors., AIR (1976) SC 263. In Jagat Dhish Bhargva v. Jawahar Lal Bhargava and Ors., AIR (1961) SC 832 this Court while considering the procedure to be followed by the Court in receipt of defectively filed appeals made the following observations : It would thus be clear that no hard and fast rule of general applicability can be laid down for dealing with appeals defectively filed under O.41, R.I. 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 defective 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. [para 14] Rule 3-A was in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court in Madhukar s case when a Division Bench has subsequently overruled it, (State of Karnataka v. Nagappa, AIR (1986). N. Venkatachala and S.A. Hakeem, JJ (as they then were) dealt with the background of introducing Rule 3-A in Order 41 of the Code and after discussion held that sub-rule (1) of Rule 3-A is mandatory. However, learned Judges pointed out that subrules (2) and (3) have been employed by the legislature for highlighting the purpose of introducing such a new rule. The following passage from the judgment of the Division Bench of the Karnataka High Court can usefully be quoted in this context : A combined reading of sub-rules (1) and (2) of R. 3A makes it manifest that the purpose of requiring the filing of an applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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