Curable defect in time-barred appeals: omission to file a condonation application initially does not require outright rejection.

A time-barred appeal filed without a contemporaneous condonation application is not automatically void or liable to outright rejection. Order 41 Rule 3A requires such an application, but the defect is curable and the appeal may be treated as duly presented if the delay is regularised before final disposal. The Supreme Court held that the High Court erred in dismissing the second appeal solely for non-filing of the condonation application with the memorandum, set aside that dismissal, and remitted the matter for decision on the delay application and further consideration of the appeal in accordance with law.

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Issues: Whether an appeal presented after the period of limitation, but not accompanied at the time of filing by an application for condonation of delay, is liable to be rejected at the threshold or whether the defect is curable and the appeal may be treated as duly presented upon subsequent filing of the condonation application.

Analysis: Order 41 Rule 3A of the Code requires a time-barred appeal to be accompanied by an application supported by affidavit, and the provision is intended to ensure that the appellant seeks condonation before the appeal is heard. However, the Code does not prescribe rejection of the memorandum of appeal merely because such an application was not filed simultaneously. The scheme of the appellate rules shows that a defective presentation may be returned or cured, and the absence of the application at the initial stage does not by itself make the presentation irredeemably fatal. The requirement is obligatory in nature, but non-compliance can be remedied if the delay application is filed before the appeal is finally dealt with.

Conclusion: The omission to file the condonation application along with the appeal was a curable defect and the High Court was not right in dismissing the second appeal solely on that ground.

Final Conclusion: The dismissal of the second appeal was set aside and the matter was remitted to the High Court for decision on the delay application and consideration of the second appeal in accordance with law.

Ratio Decidendi: A time-barred appeal filed without a contemporaneous application for condonation of delay is not automatically void or liable to outright rejection, since the defect is curable and the appeal may be treated as properly presented once the delay is sought to be regularised before final disposal.

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