STATE OF M.P. AND ANR. versus PRADEEP KUMAR AND ANR.

Citation: [2000] SUPP. 3 S.C.R. 235 · Decided: 12-09-2000 · Supreme Court of India · Bench: K.T. THOMAS · Disposal: Appeal(s) allowed
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Judgment (excerpt)

STATE OF M.P. AND ANR. 
A 
v. 
PRADEEP KUMAR AND ANR. 
SEPTEMBER 12, 2000 
[K.T. THOMAS AND R.P. SETHI, JJ.] 
B 
Civil Procedure Code, 1908-0rder 41 Rule 3A 
Second Appeal filed without application for condonation of delay--
Necessary application filed later-High Court dismissed appeal on this C · 
ground-On appeal held, consequences cannot be fatal if appeal is filed 
without application for condonation of delay-c-Defect is curable by party--
Enactment had two fold object ; informing the appellant that an application 
needs to be filed and communicate to the respondent that it may not he 
necessary to meet the grounds taken up as application for condonation of 
delay will be dealt with first-Matter remanded to High Court for disposal D 
of application and the second appeal, if explanation found satisfactory. 
Expression "Shall" needs be interpreted as an obligation cast on the 
appellant and there is no need to place a more restrictive interpretation-
Words and Phrases. 
Respondents had filed the original suit, which was dismissed for want 
of jurisdiction. The decision was reversed in first appeal by the District 
Judge. Appellants filed second appeal before the High Court. However it was 
E 
not accompanied by an application for condonation of delay as provided under 
Order 41 Rule 3A CPC. The requirement was fulfilled on a later date. High F 
Court dismissed the appeal on this ground itself. Hence this appeal. 
Appellants contended that a very narrow interpretation had been given 
to Order 41Rule3A CPC; and that the court had the power to condone the 
delay on showing reasonable explanation for it. 
Allowing the appeal, the Court 
G 
HELD : 1.1. There is no such rule prescribing fo.r rejection of 
memorandum of appeal in a case where the appeal is not accompanied by an 
application for condoning the delay. If the memorandum ofappeal is filed in H 
235 
236 
SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R. 
A such appeal without the accompanying 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 and if an application to condone the 
delay is filed before the appeal is rejected the same should be taken up along 
with the already filed memorandum of appeal. The court can then only treat 
B the appeal as lawfully presented and there is nothing wrong if it returns 
such a memorandum of appeal as defective. Such defect can be cured by the 
party concerned and present the appeal without further delay. [240-C-E) 
1.2. The object of enacting Order 41 Rule 3A CPC seems to be two-
fold. First is, to inform the appellant himself who filed a time barred appeal 
C that it would not be entertained unless it is accompanied by an application 
explaining the delay. Second is, to communicate to the respondent a message 
that it may not be necessary for him to get ready to meet the grounds taken 
up in the memorandum of appeal because the court has to deal with application 
for condonation of delay as a condition precedent. Barring the above objects, 
nothing can be found out from the rule that it is intended to operate as 
D unremediably or irredeemably fatal ifthe memorandum is not accompanied 
by any such application at the first instance. [242-H; 243-A) 
E 
Govind Lal Chaggan Lal Patel v. The Agriculture Produce Market 
Committee & Ors., AIR (1976) SC 263 and Jagat Dhish Bhargava v. Jawahar 
Lal Bhargava & Ors., AIR (1961) SC 832, relied on. 
Padmavathi v. Kalu, AIR (1980) Ker. 173 and Madhukar Daso 
Deshpande v. Anant Nilkantha Deshpande & Ors. AIR (1984) Kar. 40, 
disapproved. 
F 
Maya Devi v. MK. Krishna Bhattathiri & Anr. AIR (1981) Ker. 240; 
State of Karnataka v. Nagappa, AIR (1986) Kar. 199 and State of Bihar & 
Ors. v. Ray Chandi Nath Sahay & Ors., AIR (1983) Pat. 189, approved. 
G 
Crawford on "Statutory Construction" (1940) Ed. Art. 261, P. 516, 
referred to. 
2. The word "shall" used in Order 41Rule3A (1) gives the requirement 
a peremptory tone. But such peremptoriness does not foreclose a chance for 
the appellant to rectify the mistake, either on his own or being pointed out 
by the court. The word "shall" in the context need be interpreted as an 
obligation cast on the appellant and there is no need to place a more restrictive 
H interpretation. The rule cannot be interpreted very harshly and make the 
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STATE v. PRADEEP KUMAR [THOMAS, J.) 
237 
non-compliance punitive to appellant. [240-F-G] 
3. The pristine maxim
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