# Dr. Sammohit @ Sammohit v. Raju Kumar Patel

- **Citation:** (2025) 9 ILRA 639
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-17
- **Case number:** Matters Under Article 227 No. 11075 of 2025
- **Bench:** Manish Kumar Nigam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-sammohit-sammohit-v-raju-kumar-patel-53948
- **Pages:** 5

## Headnote

Issue for Consideration
Wheteher subsequent to the filing of the appeal,
an application cannot be filed for condoning the
delay, it has to be filed simultaneously along
with memo of appeal?

Head Notes
The Code of Civil Procedure-1908-Order
41
Rule
3-A;
The
Constitution
of
India,1950-Article 227- From bare perusal
of the Rule 3-A of the Order 41, it is
manifest
that
the
purpose
and
requirement of filing an application under
Rule 3A along with a time barred appeal is
mandatory in the sense that the appellant
cannot without such an application being
decided insist upon the court to hear his
time barred appeal that this was the very
purpose said to be above by insertion of
Rule 3A, 1 & 2 which is clear from the
legislative history of Rule 3A. No penalty
of rejection or dismissal of a time barred
appeal
for
non
compliance
of
the
requirement of Rule 3 A (1) is envisaged
therein. Thus, when Rule 3A(1) neither
expressly nor contextually indicates that
its non compliance should, as a penalty,
entail dismissal of the time barred appeal,
its operation cannot be regarded as
bringing
above,
such
drastic
result
implidely-Petition dismissed.

Held- The argument made by the petitioner is of
no avail as the application for condoning the
delay can be filed subsequent to the filing of
memo of appeal. (E-15)
(Para 9 & 11)

Case Law Cited
Collector, Varanasi v. Rai Prem Chand and
others; AIR 1992 ALL 206; Padmavathi v. Kalu;
AIR 1980 Kerala 173; Krishnasami Pandikonder
v. Ramasami Chettiar; AIR 1917 PC 179 ;
Sunderabai v. Collector of Belgaum; AIR 1918
PC 135; State of M.P. and another v. Pradeep
Kumar and another; (2000) 7 SCC 372;

List of Acts
The Code of Civil Procedure-1908

List of Keywords
Delay condonation; Application can be filed
subsequent to the filing of appeal; Order 41
Rule 3-A;

Case Arising From
Order dated 26.08.2025 passed by Additional
District Judge/Special Judge, Court No. 4,
Varanasi in Misc. Case No. 51 of 2025 whereby,
the appellate court has allowed the application
filed by the appellant for condoning the delay in
filing the appeal

Appearances for Parties
Counsel for Petitioner(s) : Harish Chandra
Dwivedi

## Text

9 All. Dr. Sammohit @ Sammohit Vs. Raju Kumar Patel
639

44. Consequently, the writ petition
fails and is dismissed.
----------
(2025) 9 ILRA 639
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.09.2025

BEFORE

THE HON'BLE MANISH KUMAR NIGAM, J.

Matters Under Article 227 No. 11075 of 2025

Dr. Sammohit @ Sammohit ...Petitioner
Versus
Raju Kumar Patel ...Respondent

Counsel for the Petitioner:
Harish Chandra Dwivedi

Counsel for the Respondent:

Issue for Consideration
Wheteher subsequent to the filing of the appeal,
an application cannot be filed for condoning the
delay, it has to be filed simultaneously along
with memo of appeal?

Head Notes
The Code of Civil Procedure-1908-Order
41
Rule
3-A;
The
Constitution
of
India,1950-Article 227- From bare perusal
of the Rule 3-A of the Order 41, it is
manifest
that
the
purpose
and
requirement of filing an application under
Rule 3A along with a time barred appeal is
mandatory in the sense that the appellant
cannot without such an application being
decided insist upon the court to hear his
time barred appeal that this was the very
purpose said to be above by insertion of
Rule 3A, 1 & 2 which is clear from the
legislative history of Rule 3A. No penalty
of rejection or dismissal of a time barred
appeal
for
non
compliance
of
the
requirement of Rule 3 A (1) is envisaged
therein. Thus, when Rule 3A(1) neither
expressly nor contextually indicates that
its non compliance should, as a penalty,
entail dismissal of the time barred appeal,
its operation cannot be regarded as
bringing
above,
such
drastic
result
implidely-Petition dismissed.

Held- The argument made by the petitioner is of
no avail as the application for condoning the
delay can be filed subsequent to the filing of
memo of appeal. (E-15)
(Para 9 & 11)

Case Law Cited
Collector, Varanasi v. Rai Prem Chand and
others; AIR 1992 ALL 206; Padmavathi v. Kalu;
AIR 1980 Kerala 173; Krishnasami Pandikonder
v. Ramasami Chettiar; AIR 1917 PC 179 ;
Sunderabai v. Collector of Belgaum; AIR 1918
PC 135; State of M.P. and another v. Pradeep
Kumar and another; (2000) 7 SCC 372;

List of Acts
The Code of Civil Procedure-1908

List of Keywords
Delay condonation; Application can be filed
subsequent to the filing of appeal; Order 41
Rule 3-A;

Case Arising From
Order dated 26.08.2025 passed by Additional
District Judge/Special Judge, Court No. 4,
Varanasi in Misc. Case No. 51 of 2025 whereby,
the appellate court has allowed the application
filed by the appellant for condoning the delay in
filing the appeal

Appearances for Parties
Counsel for Petitioner(s) : Harish Chandra
Dwivedi

(Delivered by Hon'ble Manish Kumar
Nigam, J.)

1. Heard learned counsel for the
petitioner and perused the record.

2. This petition has been filed
challenging the order dated 26.08.2025
passed by Additional District Judge/Special
Judge, Court No. 4, Varanasi in Misc. Case
No. 51 of 2025. By the order dated
640 INDIAN LAW REPORTS ALLAHABAD SERIES
26.08.2025, the appellate court has allowed
the application filed by the appellant for
condoning the delay in filing the appeal.

3. Contention of the learned counsel
for the petitioner is that the respondent has
not filed the application for condoning the
delay along with memo of appeal and
therefore, in view of the provisions of
Order 41 Rule 3-A C.P.C., the appeal filed
by the respondent is to be dismissed. It has
also been contended by learned counsel for
the petitioner that in case, an appeal is filed
with delay, the same shall be accompanied
by an application for condoning the delay
in view of the provisions of Order 41 Rule
3-A C.P.C. It has been further contended
that subsequent to the filing of the appeal,
an
application
cannot
be
filed
for
condoning the delay, it has to be filed
simultaneously along with memo of appeal.
In this regard, learned counsel for the
petitioner has relied upon the judgment of
this Court in case of Collector, Varanasi
v. Rai Prem Chand and others; AIR
1992 ALL 206 as well as judgment of
Kerala High Court in case of Padmavathi
v. Kalu; AIR 1980 Kerala 173.

4. Before considering the submission,
it will be appropriate to look into the brief
facts of the case which are as under.

5. An ex-parte decree was passed on
17.08.2002 in a suit being O.S. No. 51 of
2001 (Dr. Sammohit v. Radheyshyam) for
specific performance of an agreement to
sell executed by father of the respondent.
The said decree was executed by filing an
execution application which was registered
as execution case No. 32 of 2002. In the
execution proceedings, sale deed was
executed by the court on 15.07.2003. A
restoration application was filed by the
defendant/respondent under Order 9 Rule
13 C.P.C. on 13.10.2021 along with an
application under Section 5 of Limitation
Act for condoning the delay in filing the
restoration application. The application
filed under Section 5 of the Limitation Act
for condoning the delay in filing the
restoration application was rejected by the
trial court by order dated 05.03.2024.
Against the order dated 05.03.2024, the
petitioner filed a revision on 12.03.2024.
On objection being raised by the petitioner,
the respondent moved an application for
converting the revision into a misc. appeal
and the said application was allowed by
order dated 09.08.2024. After conversion
of the revision into appeal, on an objection
filed by the petitioner, the respondent filed
fresh memo of appeal on 28.08.2024.
Thereafter, on an objection being taken by
the petitioner that appeal filed by the
respondent
was
beyond
time,
the
respondent filed an application under
Section 5 of the Limitation Act for
condoning the delay in filing the appeal on
23.09.2024. The said application has been
allowed by the court below by the order
impugned, hence the present writ petition.

6. It would also be appropriate to look
into
the
relevant
provisions
before
considering the argument of the learned
counsel for the petitioner.

7. Order 41 Rule 3-A of C.P.C. is
quoted as under:

"3A.
Application
for
condonation of delay. (1) When a 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
the appellant relies to satisfy the Court that
he had sufficient cause for not preferring
the appeal within such period.
9 All. Dr. Sammohit @ Sammohit Vs. Raju Kumar Patel
641

(2) If the Court sees no reason to
reject the application without the issue of a
notice to the respondent, notice hereof shall
be issued to the respondent and the matter
shall be finally decided by the Court before
it proceeds to deal with the appeal under
rule 11 or rule 13, as the case may be.

(3) Where an application has
been made under sub-rule (1) the Court
shall not made an order fact the stay of
execution of the decree against which the
appeal is proposed to be filed so long as
the Court does not, after hearing under
rule 11, decide to hear the appeal."

8. Rule 3A has been added by Act of
104 of 1976.

9. Order 41 Rule 3-A(1) has been
inserted to put an end to the practice of
admitting an appeal subject to decision on
the question of limitation. This practice was
disapproved by the privy counsel in case of
Krishnasami Pandikonder v. Ramasami
Chettiar;
AIR
1917
PC
179
and
Sunderabai v. Collector of Belgaum;
AIR 1918 PC 135, which stressed the
expediency of adopting a procedure under
which a final determination of the question
as to limitation would be possible before
admission of the appeal. Therefore, with a
view to seeing that the question of
limitation does not remain lingering. Order
41 Rule 3A(1) has been inserted by Act of
104 of 1976. From bare perusal of the Rule
3-A of the Order 41, it is manifest that the
purpose and requirement of filing an
application under Rule 3A along with a
time barred appeal is mandatory in the
sense that the appellant cannot without
such an application being decided insist
upon the court to hear his time barred
appeal that this was the very purpose said
to be above by insertion of Rule 3A, 1 & 2
which is clear from the legislative history
of Rule 3A. No penalty of rejection or
dismissal of a time barred appeal for non
compliance of the requirement of Rule
3A(1) is envisaged therein. Thus, when
Rule
3A(1)
neither
expressly
nor
contextually
indicates
that
its
non
compliance should, as a penalty, entail
dismissal of the time barred appeal, its
operation cannot be regarded as bringing
above, such drastic result implidely.

10. Initially there was a divergence of
opinion between various High Courts as to
whether the application for condonation of
delay can be filed subsequent to the filing
memo of appeal or the application for
condonation of delay must necessarily be
filed along with memo of appeal. This
controversy came to an end after the
judgment of Supreme Court in case of
State of M.P. and another v. Pradeep
Kumar and another; (2000) 7 SCC 372.
The Supreme Court held that filing of
memo of appeal without an application for
condonation of delay, will not be fatal,
defect if any, can be cured by filing
subsequent application for condonation of
delay. Paragraph nos. 10, 11, 12 of the
judgment in case of State of M.P. &
another (supra) is quoted as under:

"10. What is the consequence if
such an appeal is not accompanied by an
application mentioned in sub-rule (1) of
Rule 3-A? It must be noted that the Code
indicates in the immediately preceding rule
that the consequence of not complying with
the requirements in Rule 1 would include
rejection of the memorandum of appeal.
Even so, another option is given to the
court by the said rule and that is to return
the memorandum of appeal to the appellant
for amending it within a specified time or
then and there. It is 1o be noted that there
is no such rule prescribing for rejection of
642 INDIAN LAW REPORTS ALLAHABAD SERIES
memorandum of appeal in a case where the
appeal
is
not
accompanied
by
an
application for condoning the delay. If the
memorandum of appeal is filed in such
appeal
without
accompanying
the
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. In turn, it
means that if the appellant subsequently
files an application to condone the delay
before the appeal is rejected the same
should be taken up along with the already
filed memorandum of appeal. Only then the
court can treat the appeal as lawfully
presented. There is nothing wrong if the
court returns the memorandum of appeal
(which was not accompanied by an
application
explaining
the
delay)
as
defective. Such defect can be cured by the
party concerned and present the appeal
without further delay.

11. No doubt sub-rule (1) of Rule
3-A has used the word "shall". It was
contended that employment of the word
"shall" would clearly indicate that the
requirement is peremptory in 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 case on the appellant. Why
should a more restrictive interpretation be
placed on the sub-rule? The rule cannot be
interpreted very harshly and make the noncompliance punitive to appellant. It can
happen that due to some mistake or lapse
an appellant may omit to file the
application (explaining the delay) along
with the appeal.

12. It is true that the pristine
maxim "Vigilantibus Non Dormientiobus
Jura Subveniunt" (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 behaviour 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 of 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."

11. In view of the law laid down by
the Supreme Court in case of State of M.P.
& another (Supra), the argument made by
learned counsel for the petitioner is of no
avail as the application for condoning the
delay can be filed subsequent to the filing
of memo of appeal. Further in the facts and
circumstances of the case, against the order
rejecting an application under Section 5 of
the Limitation Act filed for condoning the
delay, in filing the application under Order
9 Rule 13 C.P.C., the respondent filed
revision within time which on objection
being
taken
by
the
petitioner,
was
converted into an appeal. On further
objection being taken by the petitioner, the
respondent filed a fresh memo of appeal in
the aforesaid converted appeal. Thereafter,
again, in order to meet the objection raised
by the petitioner as to delay in filing the
appeal, the respondent filed a separate
application for condonation of delay which
has been allowed by the court below.

12. In my view, revision was filed
within seven days of the order passed
rejecting the application under Section 5 of
the Limitation Act. The said revision was
subsequently converted into an appeal with
9 All. Smt. Jyoti Singh Vs. Smt. Geeta Devi & Ors.
643
the leave of the court. Even otherwise,
there is no delay in filing the appeal.

13. In view of the above, this petition
lacks merit and is accordingly, dismissed.
----------
(2025) 9 ILRA 643
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.09.2025

BEFORE

THE HON'BLE MANISH KUMAR NIGAM, J.

Matters Under Article 227 No. 13501 of 2023

Smt. Jyoti Singh ...Petitioner
Versus
Smt. Geeta Devi & Ors. ...Respondents

Counsel for the Petitioner:
Ashish
Kumar
Singh,
Rakesh
Kumar
Srivastava

Counsel for the Respondents:
Dharnidhar Pandey, Kamal Kumar Singh,
Ram Karan, Sudhir Kumar Mishra

Issue for Consideration
Whether the election petition liable to be
rejected on the ground that the election petition
was not presented by the respondent personally
rather the same was presented
through
advocate and therefore, the election petition
ought to have been rejected by the tribunal in
view of the provisions of U.P. Zila Panchayat
(Settlement of Dispute Relating to Membership)
Rules, 1994

Head Notes
The
Uttar
Pradesh
Zila
Panchayat
(Settlement
of
Dispute
Relating
to
Membership) Rules, 1994, Sub Rule (3) of
Rule 4, Rule 11; The Constitution of
India,1950-Article 227; The Uttar Pradesh
Kshetra Panchayat and Zila Panchayat Act,
1961-Section
27;
The
Code
of
Civil
Procedure-1908-Section 26, Order IV;
General Rules Civil, 1957-Rule 32 & 35-
Once, the petition is filed through e-filing
mode, the person filing the petition has no
control over the petition as to when the
same will be taken by the concerned
Judge specially during the Covid period
when the physical presence of litigants as
well as lawyers was prohibited by the
orders of this Court. After the submission
of petition by the computer section it is
only when the petition was taken by the
District Judge and the District Judge fixed
date 12.07.2021 as the date fixed and has
also
called
for
a
report
from
the
Munsarim. Thus, 12.07.2021 will be the
date
on
which
the
petitioner
was
supposed to be present. In the present
case, the petitioner was present on
12.07.2021 before the Munsarim as the
Munsarim report bears signature of the
petitioner and finding of fact has been
recorded by the District Judge-Petition
dismissed.

Held- Election petitioner was present on
12.07.2021 and there is sufficient compliance of
Sub-rule (3) of Rule 4 of the Rules,1994
specially considering the circumstance that
Covid pandemic was there in full swing in the
year 2021 and certain restrictions were imposed
by this Court regarding the presence of litigant
and counsel in the court proceedings- No
illegality has been committed by the court below
in rejecting the application filed by the petitioner
under Order 7 Rule 11 C.P.C. for rejection of the
election petition. (E-15)
(Para 29,31 & 32)

Case Law Cited
Devendra
Yadav
v.
District
Election
Officer/District Magistrate, Mau reported in 2011
(9) ADJ 219; Jamal Uddin Ahmad v. Abu Saleh
Najmuddin and others reported in (2003) 4 SCC
257; Sumitra Devi v. Special Judge/Additional
District & Sessions Judge & others (Misc. Single
No. 9920 of 2018 decided on 12.06.2020)

List of Acts
The Uttar Pradesh Zila Panchayat (Settlement of
Dispute Relating to Membership) Rules; The
Constitution of India,1950; The Uttar Pradesh Kshetra
Panchayat and Zila Panchayat Act, 1961; The Code of
Civil Procedure-1908; General Rules Civil, 1957