The Single Bench of Justice Wasim Sadiq Nargal in a petition under Article 227 of the Constitution enunciated the settled legal principle that whereas a party to a suit has a right of appeal, a person who is not a party has no such right, but the appellate court, in its discretion may allow him to file an appeal, while holding that technicalities should never be permitted to override substantial justice.
The Petitioner before the High Court was challenging an order of the Appellate Court (Principal Sessions Judge, Jammu) whereby the Appellate Court allowed the leave to appeal filed by the Respondent No.1, who had not been arrayed as a party to the civil suit by the Petitioner-Plaintiff, and set-aside the interim order of status quo as to the service status of Petitioner-Plaintiff as the Managing Director of the Jammu Tehsil Cooperative Marketing Society Ltd. Passed by the Trial Court (CJM/Sub-Judge Jammu). The main ground of challenge by the Petitioner was that the appeal was filed beyond the limitation period, and as such, the appeal had to be accompanied with an application seeking condonation of delay in terms of Order 41, Sub-rule (3A), and the Appellate Court could decide the appeal only after the application seeking condonation of delay was allowed. Besides, the Petitioner contended that the Respondent, if aggrieved of the order of the Trial Court, should have approached the Trial Court itself instead of filing an Appeal.
The Court, after due consideration of the matter observed that it is a settled legal principle that a person who is not a party to a suit may prefer an appeal with the leave of the appellate court, and such leave should be granted if he would be prejudicially affected by the order or the judgment. In the facts of the case, noting that the Petitioner had deliberately not arrayed the Respondent as a party to the suit, despite being a necessary party, and as such, obtained the interim order by committing a mischief and fraud upon the Court, the Bench observed, “thus, in view of this Court, the private respondent was an aggrieved party and has direct interest in the subject matter has rightly sought to apply for leave to appeal on merit and has also shown how he is aggrieved by projecting detail facts. This Court is of the view that leave to appeal was rightly granted by the appellate court. The courts are required to strike a balance between the legitimate rights and interest of the respective parties”.
Further, while dealing with the contention of the Petitioner that the Appeal ought to have been accompanied by an application seeking condonation of delay, the Court observed that there is no quarrel that Order 41 Rule 3-A of Civil Procedure Code makes it mandatory that the appeal, if time barred, must be accompanied by an application for seeking of condonation of delay and a duty is cast upon the appellate court to first decide the issue of condonation of delay before advancing to decide the main appeal. Holding that filing of the appeal within the period of limitation is the rule and condonation of delay is an exception, the Court observed, “Ordinarily, if an appeal is not drawn up in the manner prescribed under the Civil Procedure Code, it may be rejected or returned to the party for the purpose of being amended within time to be fixed by the court or to be amended then and there. No doubt, Sub Rule (1) of Rule 3-A has used the word “shall‟ which would clearly indicate that the requirement is peremptory in tone but such peremptoriness does not foreclose a chance for the party to rectify the mistake either on his own or being pointed out by the court.”
Thus, the Court held that 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.
However, given the peculiar facts of the case, the Court observed that the Respondent was not required to file the application seeking condonation of delay when admittedly he was not made as a party before trial court, and he got knowledge of the suit only upon receiving a copy of the caveat filed by the Petitioner/Plaintiff, whereafter he obtained a copy of the interim order, and on the same day preferred an appeal, and thus, he cannot be held guilty of not following the procedure as envisaged Order 41 Rule 3-A CPC.
The Court also held that there is no bar to exercise the discretion by the court to condone the delay in absence of a formal application provided a satisfaction is drawn by the court that the party had sufficient cause for not making the application or preferring the appeal within the time prescribed [Sesh Nath Singh & Anr. V. Baidyabati Sheoraphuli co-operative Bank Ltd. & Anr. (2021) 7 SCC 313]
Ultimately, the Court, observing that the Petitioner has played a fraud on the Court, dismissed the Petition in limine and imposed costs of Rs. 20,000/- upon the Petitioner to deprecate the practice of suppression of material facts and playing mischief with the court.
