PERMOD KOHLI,J. - (1.) THIS is an application seeking condonation of delay of 616 days in refiling this Regular Second Appeal. It is stated that the appeal was filed in the Registry on 16.5.2005 well within limitation and thereafter Registry returned the appeal with certain objections. The counsel for the appellant tried to contact the appellant to complete the instructions, but his efforts proved futile. It is further stated that the appellant has come to the office of the counsel on the date of filing of this application which is indicated as 15.10.2006 in the affidavit, accompanying the application. In paragraphs 5 and 6 of the application, the ground for condoning the delay in refiling the appeal has been mentioned. It is stated that brother-in-law of the applicant/appellant, namely, Ajmer Singh son of Chanan Singh, aged 45 years was taken seriously ill with Cancer. On 11.6.2005, he was taken to Kaswan Hospital and Diagnostic Center at Bikaner and thereafter he remained under treatment at the Punjab Health System Corporation from 11.8.2005 to 17.8.2005. He was shifted to Malwa Super Speciality Hospital, Bathinda on 27.8.2005 and then shifted to Bansal Surgical and Maternity Hospital, Bathinda on 30.9.2005. He did not recover from the ailment and ultimately died on 21.1.2006. It is accordingly mentioned that the applicant/appellant remained under stress and strain and cold not re-file the appeal within the prescribed time.
(2.) THE application is opposed by the other side wherein it is stated that after the dismissal of the appeal by the First Appellate Court, the appellant was issued notice in Execution Application. It was only thereafter that he preferred the present appeal. It is mentioned that death of the brother-in-law of the applicant/appellant occurred on 21.1.2006 and the present appeal has been preferred after a period of one year, without explaining the delay. I have heard the learned counsel for the parties. Vide interlocutory order dated 27.9.2007, Registry was directed to give details as to how many Objections were raised regarding filing and when the objections/defects were removed by the appellant/applicant. Pursuant to the aforesaid directions, Registry has filed a detailed report on 4.10.2007 wherein the detail is mentioned as under :- "RSA was filed on 16.5.2005. It was returned to the counsel on 27.5.2005 with the following objections :- "Paper book should be page-marked. Fair typed copy of judgment should be filed." The appeal was re-filed on 17.10.2006 after compliance. On 18.10.2006, Registry again returned the appeal with the following objections :- "Refiling application should be signed by the Ld. Counsel. Objection dated 27.5.2005 still not complied with. How the Court Fee assessed and affixed, please give details." This time the appeal was re-filed on 23.12.2006. Appeal was again returned on 27.1.2007 as the appeal was re-filed without complying the objections earlier raised. Appeal was again re-filed on 23.2.2007. Again appeal was returned to the counsel on 22.3.2007 with the following objections :- "Learned counsel is requested to visit personally regarding opening sheet and Law point." Appeal was re-filed on 16.4.2007 vide Diary No. 08549."
(3.) PERIOD of limitation has been prescribed under Rule 5 of the Rules and Orders of Punjab and Haryana High Court, Volume V Chapter I, Part A which deals with judicial business. This Chapter deals with "the Presentation and Reception of Appeals, Petitions and Applications for Review and Revision". Rule 5 deals with the re-filing of the appeals and reads as under :- "5. Amendment. - (1) The Deputy Registrar may return for amendment and re- filing within a time not exceeding 10 days at a time, and 40 days in the aggregate, to be fixed by him any memorandum of appeal for the reason specified in Order XLI, Rule 3, Civil Procedure Code. (2) If the memorandum of appeal is not amended within the time allowed by the Deputy Registrar under sub-rule (1), it shall be listed for orders before the Court." From the reading of the aforesaid Rules, it appears that the maximum period of limitation prescribed under the Rules is 40 days. Therefore, whenever an appeal is returned to a party for re-filing, it must be re-filed within 10 days and 40 days in aggregate meaning thereby that the maximum period for re- filing of appeal is 40 days. In the present case from the report of the Registry, it appears that though appeal was presented within limitation, but it was returned on 27.5.2005 asking the appellant to page mark the paper-book and also file the fair typed copy of the judgment. Appellant should have removed this defect and re-filed the appeal within 10 days and in any case not beyond 40 days. Otherwise also, the defect pointed out did not require much time. This appeal was re-filed after lapse of one year four months and 22 days i.e. 509 days. Main ground urged in the application is unfortunate death of brother-in-law of the applicant/appellant who died on 21.1.2006, according to the averments made in the application. Even if the period upto his death and further moratorium of one or two months is given, still there is absolutely no explanation for not re-filing the appeal within reasonable time. Appeal has been preferred after about nine months after the death of applicant's brother-in-law. Thereafter even if the entire period for rectification of further objections is allowed, appeal was again returned to the applicant on 22.3.2007. It has been re-filed 16.4.2007. There is absolutely no valid reason for retaining the file for a period of one year and about five months initially. Limitation has been prescribed under the Rules and Orders of Punjab and Haryana High Court, Volume V Chapter I, Part A which is the nature of statutory provisions. Rule 5(1) of the said Rules prescribes maximum period of 40 days for re-filing the appeal. Sub-rule (2) of Rule 5 further provides that if the appeal is not amended within time, it be listed before the court for orders. The question arises whether the period of limitation prescribed under Rule 5 of the Rules and Orders of Punjab and Haryana High Court, Volume V Chapter I, Part A should be strictly construed meaning thereby whether it is mandatory or directory. Section 3 of the Limitation Act makes it obligatory for the Court to consider the question of limitation, notwithstanding any defence by the other side. Sub-section (1) of Section 3 of the Limitation Act reads as under :- "3(1) Bar of Limitation. - (1) Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence." ;