Order XLI Rule 3-A CPC | Failure To File Appeal With Application For Condonation Of Delay Curable Defect, Can Be Filed Subsequently
Case: Bashir Ahmad Bhat Vs Ghulam Ahmad Bhat
Coram: Justice Vinod Chatterji Koul
Case No.: CM(M) no.104/2020
Court Observation: “The Deficiency of not accompanying application for condonation of delay is curable defect and if required such an application can be filed subsequently and the appeal can be treated as presented in accordance with the requirem Rule 3A of Order XLI CPC”.
“If an appeal is not accompanied by an application as mentioned in Subrule (1) of Rule 3-A, what would be consequence thereof. It must be noted that the Code indicates in Rule 3 (1) of Order XLI that where an appeal is not drawn up in the manner prescribed, it may be rejected or returned to appellant for the purpose of being amended within a time to be fixed by the Court or be amended then and there. It is to be noted that there is no such rule prescribing for rejection of an appeal in a case where the appeal is not accompanied by an application for condoning delay”
“If an appeal is filed without accompanying the application to condone delay, the consequence cannot be fatal. The court can regard in such a case that there was no valid presentation of the appeal. In turn, it means that if appellant subsequently files an application to condone delay before the appeal is rejected, the same should be taken up along with the already filed appeal. Only then the court can treat the appeal as lawfully presented. There is nothing wrong if the court returns the appeal, which was not accompanied by an application explaining the delay, as defective. Such defect can be cured by the party concerned and present the appeal without further delay”
From the above it is evident that deficiency of not accompanying application for condonation of delay is curable defect and if required such an application can be filed subsequently and the appeal can be treated as presented in accordance with the requirement contained in Rule 3-A of Order XLI CPC”