Bombay HC: Any deficiency in filing the appeal / application Can't Make Appeal/application Filed Within Prescribed Period Of Limitation To Be Labelled As Time Barred

We may observe that, in such circumstances, any deficiency in filing the appeal / application like failure to file physical documents, cannot make the appeal, which was registered on the online portal within the prescribed period of limitation, to be labelled and/or held to be barred by limitation. Once the appeal was filed (albeit under the Online method) within the prescribed limitation, any deficiency in the appeal certainly could be removed later on, as the law does not provide, that the proceeding be strictly filed sans deficiency, and only then, the proceedings would be held to be validly filed. If such proposition is to be recognized as the correct position, it would not only tantamount to a patent absurdity, but also would result in a gross injustice, prejudicially affecting the legitimate rights of persons to a legal remedy(access to justice). Thus, the parties would necessarily have an opportunity to remove the deficiencies, if any, which may prevail at the time of filing of the proceedings, after the proceedings are filed. It may be observed that procedural compliances can never defeat the substantive remedy/right to pursue any proceedings when filed within limitation. Thus, any procedural deficiency in the proceeding filed within the prescribed limitation cannot be labelled to be a proceeding filed beyond limitation. {Para 16}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 1632 OF 2024

Shri Yogesh Rajendra Mehra Vs  Principal Commissioner CGST &

Central Excise Raigad (appeal)

CORAM: G. S. KULKARNI &

FIRDOSH P. POONIWALLA, JJ.

ORAL JUDGMENT: (PER G. S. KULKARNI, J.)

DATED: 20th February, 2024

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Supreme Court: Repetitive filing of applications amounts to abuse of process of law

 Repetitive filing of applications amounts to

abuse of process of law. This application is filed in

spite of the order passed by this Court categorically

stating that no further application for extension of

interim bail shall be entertained. It is no more res

integra that petitions/applications filed repeatedly are

liable to be dismissed with exemplary costs. Therefore,

we dismiss this application with costs of Rs.25,000/-.

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s).4634/2014

VIJAY MADANLAL CHOUDHARY Vs UNION OF INDIA & ORS. 

Date : 15-09-2020 These matters were called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE L. NAGESWARA RAO

HON'BLE MR. JUSTICE HEMANT GUPTA

HON'BLE MR. JUSTICE S. RAVINDRA BHAT

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Delhi HC: Court should not reject an application only on the ground that it is made under the wrong provision

Trial court has committed an error in it order dated 13.03.2020 by not noticing that mere incorrect mention of the provision would not disentitle a party from relief, if it is available on merits. Trial court should have entertained the application and treated the same as an application under Order IX Rule 7 and considered whether on merits setting aside of ex-party order was warranted or not.

 IN THE HIGH COURT OF DELHI AT NEW DELHI 

Dated: 16th June, 2020

  CM(M) 364/2020

 FULLERTON INDIA CREDIT CO. LTD. Vs AFTAB AHMED 

CORAM:-

 MR JUSTICESANJEEV SACHDEVA

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Whether appeal is maintainable if application is dismissed in default?

The statutory provision of Order XLIII Rule 1(c) and 1(d) Code of Civil Procedure uses the words "rejecting an application". When the appeal is provided on rejection of an application, we need not read any further pre-condition in the word rejecting. When the right of appeal has been given on "rejecting" an application the said right cannot be read to limit the right of appeal only when application is rejected on merit. Taking any such interpretation will be nothing but adding words to statute which is clearly impermissible.

22. Full Bench of Madhya Pradesh High Court in Nathu Prasad (supra) case had occasion to consider the words "rejecting an application" as contained in Order XLIII Rule 1(c) Code of Civil Procedure. After considering the earlier judgments of the different High Courts the Full Bench opined as follows:

...In our opinion, there is nothing in the wording of Order 43 Rule 1(c), Code of Civil Procedure to restrict it to rejection on merits. The words "rejecting an application" are comprehensive enough to include dismissal for default on rejection, in any other situation whatever.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 9409 of 2017 (Arising out of SLP (C) No. 28713 of 2013)

Decided On: 21.07.2017

Jaswant Singh and Ors. Vs. Prakash Kaur and Ors.

Hon'ble Judges/Coram:
A.K. Sikri and Ashok Bhushan, JJ.
Citation: AIR 2017 SC 5275

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Whether court can reject an application if there is non mentioning or wrong mentioning of provision in said application?

 Reliance of Adv. Kaptan on Challamane Huchha
Gowda v. M.R. Tirumala,(2004) 1 SCC 453, at page 459 (para
10) shows that it is a settled position of law that a mere non mentioning
or wrong mentioning of a provision in an application
is not a ground to reject an application. Since there was no bar
found in treating the objection (filed in the matter before Hon.
Apex Court) as an application for setting aside the sale, the
setting aside of sale by the execution court was held to be
perfectly in tune with the CPC. In AIR 1994 Bom 141Jagdish
Balwantrao Abhyankar and others v. State of Maharashtra and
others relied upon by the landlords Full Bench of this Court has
in para 21 taken the view that “ “21. Sometimes it does happen
that an application is filed under a particular provision of a statute
and it is found to be not maintainable thereunder or the Court or
Tribunal has no power to grant the relief asked for thereunder but
the said application is maintainable under some other provision of
the statute before the same Court or Tribunal and it has power to
grant the relief asked for, it is in such cases that it has always been

held that the "label" or the "nomenclature" of the application or
petition should not matter and after seeing the substance or
contents of the application, if it is possible to grant the relief under
some other provision of the statute, such a relief should not be
denied to a party. It is, however, material to note that such a
recourse is taken only when it is found that the relief asked for
cannot be granted under the provisions under which the
jurisdiction of the Court or Tribunal is invoked, much less when the
result would be to deprive the party of a right of appeal provided
against the order passed under such a provision.” 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 6006 OF 2006
Dinesh Jagannath Khandelwal, Vs  Kundanlal s/o Perumal
Chhabriya, 

 Citation: 2010(2)ALLMR588, 2010(1)BomCR728
CORAM : B.P. DHARMADHIKARI, J.

DATED : JAN. 04, 2010.

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