Order XLI Rule 3-A CPC: Failure To File Appeal With Application For Condonation Of Delay Curable Defect, Can Be Filed Subsequently J&K&L High Court

FACTS 

A plea under Article 227 was made, in terms of which the petitioner assailed an order passed by Principal District Judge, Bandipora on an Interim Application arising out of an appeal. 

Prayer was made for dismissal of appeal and application for grant of interim relief filed by respondent before appellate court, whereby the Principal District Judge had admitted such appeal after more than 2 years and set aside an interim order of the court below, without first condoning the period of delay.

Arguments Made 

Petitioners argued that the Appellate Court was unmindful of Limitation Act providing 90 days time in preference of appeals and more especially interim order being subject to objections that has been challenged therein, has entertained appeal, passing impugned order.

The petitioner further submitted that the appellate Court without first condoning delay entertained, diarised and admitted appeal and that such process and exercise undertaken by the Appellate Court is in contravention to provisions of Order XLI Rule 3A (3).  

Since same bars granting order of stay/ interim direction in a time-barred-appeal unless delay is condoned. Two long years' delay has not been talked of by the Appellate Court much less noticed and/or requisitioned by the Appellate Court while passing impugned order, the counsel argued.

Judgement 

Justice Koul observed that filing an appeal within a period of limitation is the rule and condonation of delay is an exception and hence while condoning the delay, the Courts must be cautious and only on genuine reasons

The Courts are empowered to condone the delay. The power of discretion to condone the delay is to be exercised judiciously and by recording reasons and the reasons furnished for condonation of delay must be candid and convincing. So, the condonation of delay cannot be claimed as a matter of right and only on genuine reasons, the delay is to be condoned and not otherwise. 

In the event of condoning the huge delay in a routine manner, the Courts are not only diluting the law of limitation but unnecessarily encouraging this kind of lapses