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Filing Appeal With Application For Condonation Of Delay

Vanshita Singh ,
  22 September 2022       Share Bookmark

Court :
High Court of Jammu & Kashmir and Ladakh at Srinagar
Brief :

Citation :
CM(M) no.104/2020

CASE TITLE:
Bashir Ahmad Bhat Vs Ghulam Ahmad Bhat

DATE OF ORDER:
19 September 2022

JUDGE(S):
Justice Vinod ChatterjiKoul

PARTIES:
Petitioner: Bashir Ahmad Bhat
Respondent: Ghulam Ahmad Bhat

SUBJECT

The Jammu and Kashmir and Ladakh High Court were answering a question as to what are the consequences if an appeal is not accompanied by an application as mentioned in Sub-rule (1) of Rule 3A in Order 41 of CPC.

IMPORTANT PROVISIONS

Civil Procedure Code

  • Rule 3A in Order 41- Application for condonation of delay.- (1)When an appeal is presented after the expiry of the period of limitation specified there for, 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.
  • Rule 3A in Order XLI- (3)Where the appeal is against a decree for payment of money, the appellant shall, within such time as the Appellate Court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit.

Constitution of India

  • Article 227 - Power of superintendence over all courts by the High Court. – (1) Every High Court shall have superintendence over all courts and tribunals throughout the territories interrelation to which it exercises jurisdiction.

BRIEF FACTS

  • This petition under Article 227 of the Indian Constitution seeks to set aside an order dated July 25, 2020 that was made by the Principal District Judge of Bandipora (also known as the “Appellate Court”) in response to an interim application arising from the appeal Ghulam Hassan Bhat v. Bashir Ahmad Bhat and others.
  • Petitioners further asked that a request for dismissal of the appeal as well as an application for granting temporary relief submitted by the respondent before the appellate court be granted.
  • According to the petitioners’ claims, a permanent injunction request was made to Munsiff Bandipora (referred to as “Trial Court” for short). In addition to that, the petitioners also filed an application for ad interim relief, in response to which the Trial Court issued an order on September 10, 2018, the operative portion of which, given the debate surrounding the current petition, would be advantageous to replicate.
  • On July 25, 2020, the respondent was directed to file an appeal against the aforementioned order, dated September 10, 2018, with the Appellate Court. After considering the appeal filed by the respondent, the appellate court issued a decision on July 25, 2020, admitting it and keeping the order of the trial court from September 10, 2018, on hold. The parties are set up before this Court in this manner.

ISSUES RAISED

Whether an appeal accompanied by an application condonation of delay curable defect, can be filed subsequently?

ARGUMENTS ADVANCED

  • An independent motion had not produced a letter of appeal on behalf of the respondent, which was required by law, even if the petitioners’ learned counsel could have been excused for the delay in pursuing their appeal.
  • According to the petitioners’ learned counsel, the appellate court did not even mention the two lengthy delays when it issued the in question ruling, much less requested that they be addressed.
  • The learned counsel for the petitioners has cited decisions made in the case of Madhukar Daso Deshpande v. Anant Nilkantha Deshpande and others, AIR 1984 Karnataka 40, S. M. Iqbal v. Firdous Ahmad Shah, SLJ (1995) 299; and Smt. Umrao Bai and others v. Sardarilal Khatri, (1997) AIR (MP) 62 to assert that the law regarding the condonation of delay has been settled as is held in these decisions and applies to the case at hand as well.
  • The next claim made by the counsel for the petitioners is that the Order dated September 10, 2018, issued by the Trial Court, was the subject of a challenge made in the appeal by the Respondent. As such, the Appellate Court was required to instruct the Respondent to approach the Trial Court with the proper application seeking variation, modification, or vacation of Order dated 10th September 2018.

JUDGEMENT ANALYSIS

  • The Bench stated that if a delay condonation application is missing, it may be filed later if necessary, and the appeal may be viewed as having been made in accordance with the guidelines in Rule 3-A of Order XLI CPC. This is a curable deficiency.
  • The Court further mentioned that in the instant case, the respondent made a mistake by failing to include an application for a delay pardon with the appeal. While passing the contested order, the first Appellate Court was nevertheless compelled to identify and draw attention to such a mistake, which it failed to do. In such cases, intervention with the contested order is appropriate.
  • The petition was partly allowed. The Bandipora Principal District Judge’s order from July 25, 2020, which dealt with an interim application resulting from the appeal Ghulam Hassan Bhat v. Bashir Ahmad Bhat and others, was reversed.
  • However, the respondent is free to file an application for a delay incentivization before the Principal District Judge, Bandipora court by or before September 24, 2022, when both parties must appear before the Principal District Judge, Bandipora court.
  • If the respondent files an application for a delay pardon within the aforesaid deadline, the case will be resolved within a month. It is made plain that the Principal District Judge, Bandipora, court will be free to issue appropriate orders, taking into account everything that has been noted above, in the event that the respondent fails to file an application for a delay pardon within the aforesaid time limit.

CONCLUSION

The court partially granted the petition and overturned the Principal District Judge’s ruling, allowing the respondent to move a motion for a waiver of the appeal’s filing deadline.

Click here to download the original copy of the judgement

Learn the practical aspects of CrPC HERE, CPC HERE, IPC HERE, Evidence Act HERE, Family Laws HERE, DV Act HERE

 
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