Discuss the circumstances in which an appeal may be preferred after the expiry of the period of limitation.

Question: Discuss the circumstances in which an appeal may be preferred after the expiry of the period of limitation.

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Answer

The Code of Civil Procedure confers a right of appeal but does not prescribe a period of limitation for filing an appeal. The Limitation Act, 1963, however, provides the period for filing appeals. It states that an appeal against a decree or order can be filed in a High Court within ninety days and in any other court within thirty days from the date of the decree or order appealed against.

Condonation of Delay: RULE 3-A

Rule 3-A has been inserted by the Amendment Act of 1976. It provides that where an appeal has been presented after the expiry of the period of limitation specified therefore, it shall be accompanied by an application that the applicant had sufficient cause for not preferring the appeal within time.

Prior to the insertion of Rule 3-A, the practice was to admit such an appeal subject to the objection regarding limitation. This practice was approved by the Privy Council, and it stressed the expediency of adopting a procedure for securing the final determination of the question as to limitation before admission of the appeal. This rule is added to give effect to the recommendation of the Privy Council.

As observed by the Supreme Court in State of M.P. v. Pradeep Kumar, [(2000) 7 SCC 372], the object of this provision is two-fold

Firstly, to inform the appellant that the delayed appeal will not be entertained unless it is accompanied by an application explaining the delay; and

Secondly, to communicate to the respondent that it may not be necessary for him to get ready on its merits as the court has to first deal with an application for condonation of the delay as a condition precedent. The provision is, however, a directory and not mandatory. If the memorandum of appeal is filed without an accompanying application for condonation of delay, the consequence is not necessarily fatal. The defect is curable.

Interpreting the provision in its proper perspective, the Court stated

It is true that the pristine maxim vigilantibus, non dormientibus, jura subeniunt (law assists those who are vigilant and not those who sleep over their rights). But even a vigilant litigant is prone to commit mistakes. As the aphorism “to err is human” is more a practical notion of human behavior than an abstract philosophy, the unintentional lapse on the part of a litigant should not normally cause the doors of the judicature permanently closed before him.

The effort of the court should not be one 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. Navinchandra N. Majithia v. State of Maharashtra & Ors [(2000) 7 SCC 640)].

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