Gopi v. Madhavi Amma and Karthyayani Amma

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 13[TH] DAY OF AUGUST 2021 / 22ND SRAVANA, 1943 OP(C) NO. 946 OF 2021** **CMA 55/2019 OF DISTRICT COURT, KOZHIKODE** ## **PETITIONER/S:** GOPI AGED 54 YEARS S/O.KRISHNAN KIDAVU, 88/16TH CROSS CHICK BEGOOR GATE, HOSOOR, 7TH MAIN ROAD, BANGALORE. BY ADVS. BINDUMOL JOSEPH SRI.B.S.SYAMANTHAK ## **RESPONDENT/S:** 1 MADHAVI AMMA AGED 67 YEARS W/O.SUBRAMANYAN, NO.8, GANGER A LANE, CHICKPETTA, BANGALORE-560 053. 2 KARTHYAYANI AMMA, AGED 62 YEARS W/O.GANGADHARAN NAIR, CHEMBAKASSERY, MODAKKALLUR, ATHOLI VILLAGE, KOYILANDI TALUK, KOZHIKODE-673 315. BY ADVS. M.PROMODH KUMAR MAYA CHANDRAN THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 07.07.2021, THE COURT ON 13.08.2021 DELIVERED THE FOLLOWING: **O.P.(C) No.946 of 2021** 2 ## **JUDGMENT** Dated this the 13[th] day of August **,** 2021 **The short question arising for consideration in this original petition is whether the affidavit in support of an application for condonation of delay in filing an appeal, under Order 41 Rule 3A of CPC, could be filed by the Counsel for the appellant. The ancillary question is whether the provision mandates filing of the affidavit by the appellant himself. The essential facts required for resolution of the question are as under;** **The petitioner was the defendant in O.S.No.236 of 2015 of the Munsiff Court, Koyilandi filed by the respondent herein seeking to set aside two registered documents. In spite of receipt of notice, the petitioner failed to appear before the court, resulting in an ex-parte decree being passed against him. The petitioner filed an** **O.P.(C) No.946 of 2021** 3 **interlocutory application seeking to set aside decree. The application filed with a delay of 65 days, was dismissed. An interlocutory application filed by the petitioner seeking review of the order dismissing his application for setting aside the ex-parte decree also met with the same fate. Thereupon, the petitioner preferred CMA No.55 of 2019 before the District Court, Kozhikode along with I.A.No.1703 of 2019 for condoning the delay of 112 days in filing the appeal and I.A.No.1704 of 2019, for staying the operation of the order in the suit. In support of the application seeking condonation of delay, affidavit of the petitioner's Counsel was appended, whereas along with the application for stay, the petitioner filed his own affidavit. The appellate court dismissed the application for condonation of delay holding that the Advocate has no right to file the** **O.P.(C) No.946 of 2021** 4 **affidavit. The court also took note of the fact that the affidavit in I.A.No.1704 of 2019 was filed by the petitioner himself. Dismissal of the application for condonation of delay resulted in the appeal and the stay petition also being dismissed. Hence, the original petition.** **2. Learned Counsel for the petitioner contended that, delay in filing the appeal being attributable to the omission on the part of the petitioner's Counsel, only the Counsel could have filed the affidavit, explaining the reason for delay. It is contended that Order 41 Rule 3A does not mandate an affidavit by the party himself. In support of the contention, reliance is placed on the decisions of this Court in** _**Pioneer Shopping Complex (P) Ltd v. Pioneer Towers Owners Association [2001 (1) KLJ 703]**_ **,** _**Abdul Kareem v. State of Kerala [2006(2) KLT 408] and Balakrishnan**_ **O.P.(C) No.946 of 2021** 5 ## _**v. Geetha M.G [2015(1) KHC 775].**_ **3. Learned Counsel for the respondent contended that Order 41 Rule 3A requires the appellant himself to file the affidavit explaining the reason for the delay. This mandatory requirement cannot be whittled down by the Counsel filing an affidavit. Moreover, the Counsel cannot act in a dual capacity. It is also contended that, having filed the affidavit in support of the stay petition, the petitioner was bound to file the affidavit in support of the delay condonation application also.** **4. The resolution of the legal question calls for a careful scrutiny of Order 41 Rule 3A,** ## **extracted hereunder:** _**"3-A. Application for condonation of delay.-- (1) 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 setting forth the facts on which**_ **O.P.(C) No.946 of 2021** 6 _**the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period. (2) xxx xxx xxx**_ _**(3) xxx xxx xxx."**_ **The provision mandate compliance of the following requirements;** **(i) The appeal must be accompanied by an application.** **(ii) The application must be supported by an affidavit.** **(iii) In the affidavit, the facts on which the appellant relies on, to satisfy the court that he had sufficient cause for not preferring the appeal within the limitation period, must be set forth.** **On a plain reading of the above requirements, it is evident that it is for the appellant to file the affidavit setting forth the facts on which he relies on to satisfy the court that, he had** **O.P.(C) No.946 of 2021** 7 **sufficient cause for not preferring the appeal within time. Be that as it may, interpreting the provision, a learned Single Judge of this Court in** _**Abdul Kareem**_ **has held that as follows:** _**“13. To sum up, I am unable to find any justification in the contention that application to condone the delay under Order 41 Rule 3-A of the CPC must invariably be supported by an affidavit of the appellant and it is not sufficient if such application to condone the delay is supported by the affidavit of the person who was responsible for the delay in filing the appeal. It is significant that it is not insisted in O.41 R. 3-A of the CPC that the affidavit must be that of the appellant. It is enough if the facts on which the appellant relies to satisfy the court that he had sufficient cause are set forth in the affidavit filed along with the appellant's application for condonation of delay. There is thus no justification in the ritualistic insistence that the affidavit must invariably be filed by the appellant or, at least, that his affidavit must also be there to support such request.”**_ ## **5. In** _**Pioneer Shopping Complex**_ **, the challenge** **was against an order condoning the delay in filing a civil miscellaneous application based on an affidavit filed by the Counsel. Repelling the** **O.P.(C) No.946 of 2021** 8 ## **challenge, a learned Single Judge of this Court, has held as under:** _**“11. The next contention raised by the learned Counsel for the revision Petitioner would be that an Advocate appearing for a party cannot file an affidavit and it is barred under Order XLI Rule 3(A) Code of Civil Procedure In support of this contention he would place reliance on the decision reported in Oil and Natural Gas Commission v. Offshore Enterprises Inc. : (A.I.R. 1993 Bom 217) where it is held that an Advocate is not entitled to act in a professional capacity as well as constituted attorney of a party in the same matter or cause. An Advocate cannot combine the two roles. In yet Anr. decision reported in Padmavathi v. Kalu : (A.I.R. 1980 Ker 173) this Court has held that the application for condonation of delay must be supported by an affidavit along with the memorandum of appeal. No doubt, the above two decisions would go to show that the delay condonation petition must be supported by an affidavit of the party and that must be filed along with the memorandum appeal and Advocate appearing for the party should not have two roles. One is for representing the party and the other is for filing an affidavit for the condonation of the delay. But on going through the facts of the above said two cases and the principles laid down therein, I feel that there is no bar for an Advocate filing an affidavit for the party. Some of the decisions referred to above for the other aspect would also signify that there is no bar for an Advocate filing an affidavit. In**_ **O.P.(C) No.946 of 2021** 9 _**short, on going through the entire materials before me and also on examining them on the footings of the principles of law stated supra, I feel that the order passed by the lower appellate court is proper and correct. The Pioneer Shopping Complex v. The Pioneer Towers Owners Associations and Ors.”**_ **6. In** _**Balakrishnan**_ **, an application for restoration of an original petition before the Family Court filed under Order IX Rule 9, supported by the affidavit of the Counsel was dismissed. The Division Bench concurred with the decision in** _**Abdul Kareem**_ **and held that a lawyer could file a petition under Order IX Rule 9 on behalf of the party he represents, even though the vakalathama do not expressly authorise Advocates to file an application for restoration.** **7. Order IX Rule 9 requires the plaintiff to satisfy the court about the cause for his nonappearance when the suit was called on for hearing. The provision being similar to Order 41 Rule 3A and the Division Bench having held an** **O.P.(C) No.946 of 2021** 10 **affidavit filed in support of an application for restoration by the Counsel to be valid, I am bound to follow the decision.** **In the result, the original petition is allowed. The impugned orders are set aside and the appellate court is directed to consider the application for condonation of delay afresh.** **Sd/-** **V.G.ARUN JUDGE** Scl/ **O.P.(C) No.946 of 2021** 11 ## **APPENDIX OF OP(C) 946/2021** PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE OS NO.236/2015 BEFORE THE HON'BLE MUNSIFF COURT, KOYILANDI DATED 26.05.2015. EXHIBIT P2 A TRUE COPY OF THE ORDER DATED 16.12.2015 IN OS NO.236/2015. EXHIBIT P3 A TRUE COPY OF THE ORDER 30.09.2016 IN IA NO.731/2016. EXHIBIT P4 A TRUE COPY OF THE ORDER DATED 15.02.2019 IN IA NO.1977/2016 AND RP IA NO.1978/2016 OF THE HON'BLE MUNSIFF COURT, KOYILANDI. EXHIBIT P5 A TRUE COPY OF THE APPLICATION IN IA NO.1703/2019 IN CMA NO.55/2019 DATED 08.07.2019 FILED BY THE PETITIONER. EXHIBIT P6 A TRUE COPY OF THE APPLICATION IN IA NO.1704/2019 IN CMA NO.55/2019 DATED 08.07.2019 FILED BY THE PETITIONER. EXHIBIT P7 A TRUE COPY OF THE ORDER IN IA NO.1703/2019 IN CMA NO.55/2019 DATED 29.09.2020. EXHIBIT P8 A TRUE COPY OF THE ORDER DATED 29.09.2020 IN IA NO.1704/2019 IN CMA NO.55/2019 OF THE HON'BLE DISTRICT COURT, KOZHIKODE. EXHIBIT P9 A TRUE COPY OF THE ORDER DATED 29.09.2020 IN CMA NO.55/2019 OF THE HON'BLE DISTRICT COURT, KOZHIKODE.