1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2444 OF 2007 Indian Institute of Education .. Petitioner Vs Smt.ParimalBharatiya d/o Nathuram Bharatiya and ors .. Respondents Mr.Neel Helekar with Neha Mehta i/b M/s Haresh Mehta & Co, for the petitioner. Mr.P.S.Dani, for the Respondents. CORAM : D.B.BHOSALE, J. DATE : 14/09/2009 PC: 1. Heard learned counsel for the parties. Rule. By consent, rule made returnable forthwith. Learned counsel appearing for the respondents waives service. The petition is taken up for hearing and final disposal at the admission stage itself. 2. This writ petition is directed against the order dated 24.12.2004 passed by the 13th Adhoc Additional District Judge, dismissing the appeal on the ground that it is barred by limitation. The appeal was directed against the judgment and decree passed by the Civil Judge, Jr Dn, Pune in Civil suit No. 486 of 1996 dated 31.1.2000, whereby the suit filed by the T 2 respondents for declaration and perpetual injunction was decreed. Admittedly, the appeal was filed after the period of limitation. There was a delay of more than three years in filing the appeal. Admittedly, no separate application for condoning the delay was filed by the petitioner. In view thereof, the appellate court considered only one issue as to “whether the appeal was time barred and liable to be dismissed”. In paragraphs 23 and 24 of the impugned order, the court held thus; “23. It be noted that even after filing application by respondent no.1 for dismissal of the appeal on the point of law of limitation, the appellant has neither filed the application for delay condonation nor he feel it necessary to file the same. The provisions contemplated under Order 41 Rule 3A appears to be mandatory. In view of the provisions of Order 41 Rule 3A “when an appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by affidavit stating 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”. So also in view of the provisions contemplated under Chapter 22 paragraph 453 of Civil Manual “If an appeal is beyond time and an application is made under section 5 of the Limitation Act,1963, the memo of appeal should not be registered unless the application to condone the delay is granted”. In the present case, neither the appellant filed application to condone the delay nor such attempt was ever made by the appellant to claim such relief.” 3 “24. At the fag end of the matter, I am convinced from the facts and law laid down under the provisions of Order 41 Rule 3A of Civil Procedure Code, the appeal preferred and filed by the appellant is hopelessly time barred. Thus, I hold that the appeal in this form is not at all maintainable on the ground of law of limitation. All these go to show that there is no need to proceed further with the appeal and to waste the precious time by keeping the matter alive without just and reasonable cause. Thus, I hold that the appeal is time barred and liable to be dismissed”. 3. From perusal of the impugned order, it is clear that the court below dismissed the appeal as barred by limitation holding that the application for delay condonation was not filed along with the appeal. The Supreme Court, in State of M.P and Anr Vs. Pradeep kumar and Anr, (2000) 7 Supreme Court Cases 372, while dealing with the provisions of Order 41 Rule 3-A, has observed that “there is no rule prescribing the rejection of Memorandum of appeal in a case where the appeal is not accompanied by an application for condoning the delay. If the memorandum of appeal is filed in such appeal 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 the appellant subsequently files an application to condone the delay before the appeal is rejected the same should be taken up along with the already filed memorandum of appeal. Only then 4 the court can treat the appeal as lawfully presented. There is nothing wrong if the court returns the memorandum of appeal (which was not accompanied by an application explaining the delay) as defective. Such defect can be cured by the party concerned and the appeal presented against without further delay.” In view of the settled position of law, in the present case, the appellate court, instead of dismissing the appeal as barred by limitation, ought to have returned the appeal as defective and allowed the appellant to present it afresh with an application for condoning the delay. In the circumstances, the learned counsel for the parties have agreed for the following order. The order, dismissing the appeal on the ground that it was barred by limitation, is set aside and the appeal is returned to the petitioner. It is open to the petitioner to present the appeal afresh with an application for condoning the delay. If the petitioner do so, the appellate court shall consider the application on merits in accordance with law and if the delay is condoned it may proceed to hear the appeal on merits. All contentions of the parties are kept open. With these directions, the writ petition is disposed of. No costs. (D. B. Bhosale, J.) 5