Deficiency Of Not Submitting Application For Condonation Of Delay While Filing Appeal Is Curable, Such Application Can Be Made Subsequently: J&K High Court
Reaffirming the rights of aggrieved parties to appeal against court decisions the Jammu and Kashmir and Ladakh High Court has established that a technical deficiency in an appeal, such as the absence of an application for condonation of delay, can be cured.Shedding light on the intricacies of legal procedures on the subject, particularly concerning the necessity of condoning delays in...
Reaffirming the rights of aggrieved parties to appeal against court decisions the Jammu and Kashmir and Ladakh High Court has established that a technical deficiency in an appeal, such as the absence of an application for condonation of delay, can be cured.
Shedding light on the intricacies of legal procedures on the subject, particularly concerning the necessity of condoning delays in filing appeals a bench of Justice Wasim Sadiq Nargal observed,
..A deficiency of not accompanying the 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 41 CPC”.
Background:
These observations came in a petition under Article 227 involving petitioner Gulshan Kumar, who had filed a suit challenging his termination from the Jammu Tehsil Cooperative Marketing Society. While the trial court, granted him a stay order, the Society's Chairman, Harsh Vardhan Singh, who was not a party to the original suit, felt aggrieved by this order. He sought leave to appeal before the Principal District Judge (PDJ), Jammu, the appellate court.
Kumar, the petitioner, contested Singh's right to appeal, arguing that the appeal was time-barred and lacked an application for condonation of delay, a mandatory requirement under Order 41 Rule 3-A of the Civil Procedure Code (CPC).
Singh, represented by M/s Parvesh Singh Salaria and Satinder Gupta, countered that Kumar had deliberately omitted him from the suit. They argued that since Singh was directly affected by the stay order, he had the right to appeal, even as a non-party.
Observations Of The Court:
Underscoring the principle that a person must establish themselves as an aggrieved party to file an appeal, even if they were not originally party to the proceedings Justice Nargal clarified that deficiencies, such as the absence of a condonation of delay application, can be rectified subsequently, emphasizing the need for substantial justice over technicalities.
“If a person is not a party to the suit, he/she may prefer an appeal if he/she is affected by the order of the trial court provided he/she obtained leave from the court for appeal and hence, whereas the party to the suit had a right of appeal, a person who was not party to the suit had no such right, but the court of appeal may in its discretion allow him to prefer an appeal”, the court reasoned.
Further, elucidating the expression “aggrieved person” who can file an appeal despite being a stranger to the earlier proceedings Justice Nargal explained that the term denotes an elastic and an elusive concept and observed,
“It cannot beconfined within the bounds of a rigid, exact and comprehensive definition, its scope and meaning depends on diverse, variable factors, such as the content and intent of the statue of which the contravention is alleged, the specific circumstances of the case, the nature and the extent of the complainant‟s interest, and the nature and extent of the prejudice or injury suffered by the complainant.”
Commenting on the issue as to whether it was mandatory for Singh to file an application for condonation of delay when admittedly, he was not made party before the trial the court cited State of M.P. and anr. V. Pradeep Kumar and Anr. reported at (2000) 7 SCC 372 and observed,
“Court should not be one of finding means to pull down the shutters of adjudicatory jurisdiction before a party who seeks justice, on account of any mistake committed by him, but to see whether it is possible to entertain his grievance if it is genuine. Thus, it can safely be concluded in the light of the law down by the Apex Court that even a deficiency of not accompanying the application for condonation of delay is curable defect”.
Justice Nargal, in his insightful judgment, also pointed out a key element that weighed in Singh's favour was the curious case of the caveat filed by Kumar. A caveat allows a party to be informed of any proceedings related to a specific case.
In this instance, Kumar, while excluding Singh from the initial suit, had surprisingly filed a caveat against Singh in the appellate court. This act, the court said had exposed a potential attempt by Kumar to mislead the courts and recorded,
“Since the petitioner has not come to the court with clean hands and has played mischief before the trial court, wherein, the petitioner was aware that the respondent no.5 was a necessary party and yet deliberately omitted him from the array of respondents and obtained interim direction against him but the petitioner by his own conduct has fallen in his own web by filing a caveat against the respondent no.5..Thus, the act of the petitioner falls within the realm of playing fraud with the court and such unscrupulous litigants, who play mischief with the court cannot go scotfree”.
For this misconduct, the Court imposed a cost penalty of Rs. 20,000/- on Kumar, payable to the Advocates' Welfare Fund and dismissed his plea terming it to be ill-founded and devoid of any merit
Case Title: Gulshan Kumar Vs U.T. of Jammu & Kashmir
Citation: 2024 LiveLaw (JKL) 109