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    C.M.P. No. 15230 of 1980 in M.F.A. No. 453 of 1980

    Decided On, 25 January 1981

    At, High Court of Kerala


    Panicker & Poti Pirappancode V. Sreedharan Nair, S.P. Aravindakshan Pillai, P.- S. Nandanan & N. Mohandas

Judgment Text

1. This application to condone the delay in filing the appeal has been posted before us as the correctness of the decision in Padmavathi v. Kalu (1980 KLT. 306) was doubted when the application came up for consideration before one of us sitting single. The appeal in this case was filed on 24-9-1980. On that date the time to file the appeal was over. But no petition to excuse the delay was filed along with the appeal. The Registrar returned the memorandum of appeal and granted 15 days' time to cure the defects. This was on 25-9-1980. On 8-10-1980 the appeal was re-presented with the petition to excuse t

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he delay. When the respondent entered appearance on receipt of notice of the delay petition be took up a preliminary objection that there is no valid presentation of the appeal or the petition to excuse delay is that the memorandum of appeal was not accompanied by the application to excuse the delay as provided for under Order XLI R.3A CPC. and as such the petition has only to be dismissed, in support of that contention he relied on the decision of Khalid, J in Padmavathi v. Kalu (1980 KLT. 306). R.3A is a rule of procedure to be followed in a case where an appeal is presented out of time. But it may not be correct to say that it the memorandum of appeal is not accompanied by an application to excuse the delay the court cannot return the appeal memo with a direction to cure the defect and on curing the defect to treat the appeal 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. It this is not the case then R.15(2) of the High Court Rules which directs the return of the memorandum of appeal to cure the defect and re-present the same within a period not exceeding 15 days will be meaningless. There is a similar provision in the Civil Rules of Practice, namely, R.32 of the Civil Rules of Practice which says that any plaint, petition, memorandum of appeal or other proceeding which requires any amendment to conform to the procedure or practice of the Court shall be returned for being re-presented within a period not exceeding 15 days after curing the defects. These two rules of practice are intended to cover a defect of the nature considered in this case. It is true that Order XLI R.3A provides that the memorandum of appeal shall be accompanied with the application to excuse the delay. Though this Rule has been introduced in the C.P.0 only in the 1976 Amendment so far as the High Court practice is concerned there was a similar rule-Rule 42 of the High Court Rules which provides that every memorandum of appeal presented after the expiration of the time limited by law shall be accompanied by a petition to excuse the delay. Before this Rule was introduced there was a similar rule in the earlier High Court Rules, namely R.26 which provides that an appeal presented out of time shall be accompanied by an application to excuse the delay. That rule came up for consideration in Thaycob Sait v. Ayyappan (1963 KLT. 455). A Division Bench of this court after considering the various provisions, the decision of the Supreme Court in Fagat Dhish v. Jawahar Lal (AIR 1961 SC. 832) and the earlier decision of Justice Madhavan Nair in Ratnan Adiodi v. Raman (1961 KLT. 874) adopted the following passage from the Supreme Court case as a principle of general application to govern all defective proceedings filed in court.

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 Order XLI, 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 appeal is that they should be carefully scrutinised at the initial stage soon after they are filed and the appellant required to remedy the defects."

Rule 3A is intended only to emphasise that if the appeal had been filed out of time before an appeal is taken up for consideration the question of delay must be considered before any other order is passed in the appeal. It is to achieve this object that the Rule provides that the appeal should be accompanied by a petition to excuse the delay If the petition to excuse delay is filed as a consequence of the direction of the court to cure the defect, according to us, the defect is cured and there is then a valid presentation of the appeal. With respect, we do not agree with the conclusion of Khalid, J. in the decision above referred to. The same is overruled.

2. The further question is when should the appeal be deemed to be validly presented. Is it on the day it was originally presented or on the day when the petition to excuse delay is also filed?. In the matter of payment of court-fees there is a provision in S.5 of the Kerala Court-fees Act and S.149 of the CPC. to the effect that if a proceeding is not sufficiently stamped and the defect is cured later it will be deemed that there is no defect from the date of the original presentation of the proceeding Here the court should have passed orders on the memorandum of appeal if all the papers to be filed along with it were not filed. But once the court returns the same for re-presentation after supplying the deficiency or curing the defect it must mean that permission is granted by the court for that purpose and once that is complied with it should be deemed to have been presented on the day it was originally filed This is on the same principle as is provided tor in S.149 CPC. and S.5 of the Court Fees Act. It follows that in this case when the defect was cured as directed by this Court the date of the presentation of the appeal shall be deemed to be the date on which the appeal memorandum was originally filed in court. In this view, the preliminary objection of the respondent is overruled. Post the application for hearing on the merits two weeks after