KUNHAPPAN Vs. STATE OF KERALA
LAWS(KER)-1968-7-29
HIGH COURT OF KERALA
Decided on July 11,1968

KUNHAPPAN Appellant
VERSUS
STATE OF KERALA Respondents

JUDGEMENT

- (1.) THESE Tax Revision Cases pertain to the years of assessment 1961-1962 and 1962-1963 and the tax levied is sales tax. The short question raised in these cases by the same petitioner is about the correctness of the order passed by the Appellate Tribunal dismissing the appeals before it for the two years as barred by limitation, consequent on the dismissal of the applications for excusing the delay in preferring the appeal. THESE applications were rejected, as we understand the orders, not on the merits but on the ground that these applications did not accompany the memorandum of appeal and that they do not conform to the requirements of the Kerala Sales Tax appellate Tribunal Regulations, 1956. Regulation. 44 (6) is the one that has apparently been relied on and that is in these terms: "where an appeal is presented after the period prescribed in the Act, it shall be accompanied by a petition supported by an affidavit setting forth the facts on which the appellant relies to satisfy the tribunal that he had sufficient cause for not preferring the appeal within such period. Such appeal shall not be entertained unless the Tribunal, after giving an opportunity to the respondent to be heard, is satisfied that the appellant had sufficient cause for not preferring the appeal in time. "
(2.) THE appeal before the Tribunal should have been filed on or before the 26th of August, 1965. THE appeals were filed only on the 5th of September-1966. And the delay petitions were filed on 8th September 1965 and these were disposed of by orders dated 16th October, 1966. It is clear from these facts that the petition for excusing the delay in preferring the appeals did not accompany the appeal memorandum. THE question is whether this defect is so vital as to preclude consideration of the delay applications on the merit. We do not think so. And we are supported in this view by the decision of this court in Thavoob Sait v. Ayyappan reported in 1963 K. L T. 455 which dealt with a rule, R. 26 of the Rules of the High Court of Kerala, 1960. R. 26 is very similarly worded and the relevant part of it is in these terms: "every petition or appeal which is presented after the expiration of the time limited by law, shall be accompanied by a petition to excuse the delay and shall be posted along with such petition before the court. " This Court in Thavoob Sait v. Ayyappan reported in 1963 K. L. T. 455 relied on the observations of the Supreme Court in Fagat Dish v. Jawahar Lal reported in A. I. R. 1961 S. C. 832 to the following effect:-"if would thus be clear that no hard and fast rule of general applicability can be laid down for dealing with appeals defectively filed under order XLI, R. 1. Appropriate orders will have to be passed having regard to the circumstances of each case, but the most important step to take in cases of defective presentation of appeal is that they should be carefully scrutinised at the initial stage soon after they are filed and the appellant required to remedy the defects. " There was no such occasion to notice the. defect and to direct the curing of it, as far as the appeals taken before the Appellate tribunal in these cases are concerned, for defects were cured by the appellant within three days of filing the appeals, even before the defects were apparently noticed. And these applications were dealt with a considerable time after that: viz. on the 16th of October, 1s66. And we think that the reliance on this defect, which we may term a technical defect of the application for excusing the delay not accompanying the appeal memorandum, a travesty of justice. The applications ought to be dealt with on the merits.
(3.) NOR are we impressed with the reasoning that the applications do not conform to the requirements of the regulations. Apparently the defect relied on is the absence of a separate affidavit in support of the application. An application there was, for the one moved before the Tribunal contained a specific prayer and it Was duly stamped. The same piper also contained a sworn statement duly authenticated and the fact that these two happened to be in the same paper cannot make them anything different than a petition supported by an affidavit. No doubt the proper way of filing it is different. This again is not a matter of substance but of pure form and should not have been relied for a dismissal in limini. We set aside the orders passed by the Tribunal dismissing the applications for excusing the delay and as a consequence, the orders dismissing the appeals and restore the applications and the appeals to the file of the Tribunal. The applications for excusing delay will be dealt with on the merits untrammelled by anything said in the orders dismissing these applications and if the delay is excused the appeals will be heard also on the merits and appropriate orders passed.;


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