Case Law Digest on Delay Condonation

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-SRIDHARA BABU.N

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DELAY CONDONING – PARTY SEEKING HAS TO

SATISFY COURT THAT HE HAD SUFFICIENT

CAUSE

JUSTICE DESAI, D.A., JUSTICE BEG, M.

HAMEEDULLAH (CJ) in the case of Sandhya Rani Sarkar vs

Sudha Rani Debi And Ors Reported in AIR 1978 SC 537, 1978

SCR (2) 839 It is undoubtedly true that in dealing with the question of

condoning the delay under section 5, the party seeking relief has to satisfy

the Court that he had sufficient cause for not preferring the appeal or

making the application within the prescribed time and this has always been

understood to mean that the explanation has to cover the whole period of

delay. However, it is not possible to lay down precisely as to what facts or

matters would constitute "sufficient cause" under Section 5. But those

words should be liberally construed so as to advance substantial justice

when no negligence or any inaction or want of bona fides is imputable to a

party i.e. the delay in filing an appeal should not have been for reasons

which indicate the party's negligence in not taking necessary steps which he

would have or should have taken. What would be such necessary steps ;will

again depend upon the circumstances of a particular case.

JUDICIARY IS RESPECTED NOT ON ACCOUNT OF

ITS POWER TO LEGALISE ON TECHNICAL

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GROUNDS BUT BECAUSE IT IS CAPABLE OF

REMOVING INJUSTICE AND IS EXPECTED TO DO

SO

Supreme Court in the case of Collector, Land Acquisition, Anantnag v.

Katiji, reported at AIR 1987 SC 1353.

"1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being

thrown out at the very threshold and cause of justice being defeated. As

against this when delay is condoned the highest that can happen is that the

cause would be decided on merits after hearing the parties.

3. "Every day's delay must be explained" does not mean that a pedantic

approach should be made. Why not every hour's delay, every second's

delay? The doctrine must be applied in a rational common sense pragmatic

manner.

4. When substantial justice and techinical considerations are pitted against

each other, cause of substantial justice deserves to be preferred for the

other side cannot claim to have vested right in injustice being done because

of a non-deliberate delay.

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5. There is no presumption that delay is occassioned deliberately, or on

account of culpable negligence, or on account of mala fides. A litigant does

not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power

to legalise on technical grounds but because it is capable of removing

injustice and is expected to do so."

A BAR OF LIMITATION MAY BE CONSIDERED

EVEN IF SUCH PLEA HAS NOT BEEN

SPECIFICALLY RAISED

Supreme Court in the case of Binod Bihari Singh v. Union of

India, reported at AIR 1993 SC 1245 are relevant. The observations

made in para 10 of the said decision are of far-reaching effect. Their

Lordships of the Supreme Court observed that they were not inclined to

hold that the delay in presenting the application (the substantive matter)

deserves to be condoned on the facts and circumstances of the case. They

further observed that in their view it is not at all a fit case where in the

anxiety to render justice to a party so that _a just cause is not defeated, a

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pragmatic view should be taken by the Court in considering the sufficient

cause for condonation of delay under Section 5 of the Limitation Act .

The contention, that the ignoble plea of bar of limitation sought to be

raised by the respondent should not be taken into consideration in order

that the just claim of the appellant should not be defeated, was emphatically

negatived. Their Lordships further went on to observe, merely by way of

an indication, that it may not be desirable for a Government or a public

authority to take shelter under the plea of bar of limitation to defeat a just

claim of a citizen; but if a claim is barred by limitation and such plea is raised

specifically, the Court cannot straightway dismiss the plea simply on the

score that such a plea is ignoble. A bar of limitation may be considered

even if such plea has not been specifically raised. The principles that the

Limitation Act is a statute of repose and a bar to a cause of action in a

Court of law which is otherwise lawful and valid, because of undesirable

lapse of time as contained in the Limitation Act, has been laid down on well

accepted principles of jurisprudence and public policy. Thus, these

observations clearly have relevance on two aspects of the present matter.

Firstly, that the bar of limitation creates a right in favour of the party which

successfully sets up such a bar, and secondly that the extinguishment of the

remedy which is otherwise available to a party under law, is enforced on the

basis of well accepted principles of jurisprudence and public policy. This

decision also establishes yet another principles viz. that where a just cause

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is to be weighed against shutting out the same on account of the bar of

limitation, the latter must prevail. Even a just cause cannot prevail over the

bar of limitation.

MERITS OF MAIN CASE IS NOT RELEVANT FOR

CONDONATION OF DELAY

Supreme Court in the case of State of Gujarat v. Sayed Mohd. Baquir

El. Edroos, reported at AIR 1981 SC 1921. Court while considering

the question of condonation of delay on merits, is barred from looking into

the merits of the substantive matter, in the filing of which condonation is

sought. ….. merits of the substantive matter had no relevance whatsoever

when the Court is dealing with the application for condonation of delay.

…….. No sufficient cause, however, for the condonation of the delay is made

out from any material on the record.

THERE IS NO PROPER AFFIDAVIT OR MATERIAL

ON RECORD IN SUPPORT OF THE APPLICATION

FOR CONDONATION OF DELAY

Supreme Court in the case of Ram Bhawan Singh v. Jagdish, reported at

Judgment Today (1990) 3 JT (SC) 704. The appellants had applied

for condonation of delay on the ground that they had been prosecuting

the prior proceedings in good faith and on legal advice so the period of

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more than three years be excluded in computing the period of limitation

under section 14 ' of the Limitation Act 1963. ………….. there is no proper

affidavit either of the appellants or the Counsel in support of the

application for condonation of delay. There is also no other material to

indicate that the appellants had exercised due diligence in working out their

remedies and sought proper advice in the matter. …………. Hence the

appeals are liable to be dismissed as time barred

PRECISE FACTUAL REASONS FOR THE DELAY

WITHIN THE GENERAL AMBIT OF THE SAID

PHRASE MUST BE ESTABLISHED AND THAT

TOO TO THE SATISFACTION OF THE COURT

M. B: Shah & Y. B. Bhatt, JJ in the case of Municipal Corporation Of

... vs Voltas Limited And Etc. Etc. Reported in AIR 1995 Guj 29,

1. The phrase 'sufficient cause' as occurring in Section 8 of the Limitation

Act pertains to the establishment of the appropriate facts before the

Court to which the Court can apply is mind and arrive at a conclusion

regarding the sufficiency of the cause or otherwise. In essence, therefore,

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the phrase 'sufficient cause' is not a question of principle, but is a question

of fact. Hence, whether to condone the delay or not depends upon the

facts and circumstances of each case as 'sufficient cause' for condonation

of delay depends only on the facts placed by the applicants before the

Court;

2. The plea, on the, part to the applicants that the delay was caused by

'administrative delay administrative reasons/administrative procedure' (and

analogous expressions) is merely an averment in the nature of a plea which

by itself and ipso facto does not establish sufficiency of the cause for

condonation. Precise factual reasons for the delay within the general ambit

of the said phrase must be established and that too to the satisfaction of

the Court. Hence, it cannot be held that, because the applicant is a

Municipal Corporation or a statutory authority, delay should be condoned

even if no reason or I cause for delay in filing appeal is mentioned in the

application and mere mention of the phrase 'administrative delay' in the

application for condonation of delay is no sufficient cause by any standard;

3. The merits of the substantial case in respect of which condonation is

sought cannot over-ride the provisions of Sections 3 and 5 of the

Limitation Act and the merits of the case cannot be regarded as the sole

factor or a predominant factor while adjudicating upon the sufficiency of

the cause for condonation of delay.

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4. Whether the delay is for a short period or a long period is of no

consequence. If sufficient cause is shown, long delay can be condoned and

if no cause is shown, even delay for a short period may not be condoned.

5. The principle in law only is that the Courts are required to take a liberal

view while considering the facts constituting the sufficiency of the cause, on

the basis of which condonation of delay is sought. This does not

necessarily amount to saying that all applications for condonation must be

granted. This is necessarily within the discretionary jurisdiction of the

Court, and the Court deciding the application for condonation would

necessarily exercise its discretion judicially in 'the light of the well

established principles, as regardes the appreciation of the relevant facts.

THE INNOCENT LITIGANT COULD NOT BE

ALLOWED TO SUFFER INJUSTICE FOR THE

FAULT OF HIS ADVOCATE

In Rafiq and Anr., Appellants v. Munshilal and Anr.,

Respondents, reported in AIR 1981 SUPREME COURT 1400,

the apex court has observed that It is not proper that an innocent litigant,

after doing everything in his power to effectively participate in his

proceedings by entrusting his case to the Advocate, should be made to

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suffer for the inaction, deliberate omission or misdemeanour of his agent.

For whatever reason the Advocate might have absented himself from the

Court, the innocent litigant could not be allowed to suffer injustice for the

fault of his Advocate. The respondent's costs should be recovered from

the Advocate who absented himself from Court. "The problem that

agitates us is whether it is proper that the party should suffer for the

inaction, deliberate omission, or misdemeanor of his agent. The answer

obviously is in the negative. May be that the learned advocate absented

himself deliberately or intentionally. We have no material for ascertaining

that aspect of the matter. However, we cannot be a party to an innocent

party suffering injustice merely because his chosen advocate defaulted."

MERELY BECAUSE THE ADDITIONAL

ADVOCATE GENERAL DID NOT FILE AN APPEAL

IN SPITE OF THE INSTRUCTIONS - RECORDS

WERE PURPORTEDLY MISSING WAS NOT A VALID

GROUND

In State of Nagaland v. Lipok AO and Ors. reported in (2005) 3 SCC

752, the apex court observed as under on this aspect in para 8 to 14: "8.

The proof by sufficient cause is a condition precedent for exercise of the

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extraordinary restriction (sic discretion) vested in the court. What counts is

not the length of the delay but the sufficiency of the cause and shortness

of the delay is one of the circumstances to be taken into account in using

the discretion. In support of the application for condonation of delay, it

was submitted that the aspects highlighted clearly indicated that the

authorities were acting bonafide and various decisions of this court were

pressed into service to seek condonation of delay. High Court, however,

refused to condone the delay of 57 days on the ground that it is the duty

of the litigant to file an appeal before the expiry of the limitation period.

Merely because the Additional Advocate General did not file an appeal

in spite of the instructions issued to him, that did not constitute sufficient

cause and further the fact that the records were purportedly missing was

not a valid ground. It was noted that merely asking the Additional

Advocate General to file an appeal was not sufficient and the department

should have pursued the matter and should have made enquiries as to

whether the appeal had in fact, been filed or not. Accordingly the

application for condonation of delay in filing the appeal was rejected and

consequentially the application for grant of leave was rejected.

SECTION 5 IS TO BE CONSTRUED LIBERALLY SO

AS TO DO SUBSTANTIAL JUSTICE TO THE

PARTIES

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In N. Balakrishnan v. M. Krishnamurthy [(1998) 7 SCC 123: AIR 1998

SC 3222] it was held by court that section 5 is to be construed liberally

so as to do substantial justice to the parties. The provision contemplates

that the court has to go in the position of the person concerned and to find

out if the delay can be said to have resulted from the cause which he had

adduced and whether the cause can be recorded in the peculiar

circumstances of the case as sufficient. Although no special indulgence can

be shown to the Government, which in similar circumstances, is not shown to

an individual suitor, one cannot but take a practical view of the working of

the Government without being unduly indulgent to the slow motion of its

wheels.

SUFFICIENT CAUSE TO CONDONE THE DELAY –

PERIOD BETWEEN LAST DATES OF LIMITATION

AND THE DATE ON WHICH APPLICATION

ACTUALLY FILED TO BE EXPLAINED

In Ramlal, & Chhotelal v. Rewa Coalfields Ltd. [(1962) 2 SCR 762], it

was laid down that in showing sufficient cause to condone the delay, it is

not necessary that the applicant/appellant has to explain whole of the

period between the date of the judgment till the date of filing the appeal. It

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is sufficient that the applicant/appellant would explain the delay caused by

the period between the last of the dates of limitation and the date on which

the appeal/application is actually filed. What constitute sufficient cause

cannot be laid down by hard and fast rules.

In New India Insurance Co. Ltd. v. Smt. Shanti Misra [AIR 1976 SC

237], Court held that discretion given by Section 5 should not be

defined or crystalized so as to convert a discretionary matter into a rigid

rule of law. The expression "sufficient cause' should receive a liberal

construction.

In Inder Singh v. Kanshi Ram [AIR 1917 PC 156] it was observed that

true guide for a court to exercise the discretion under Section 5 is whether

the appellant acted with reasonable diligence in prosecuting the appeal.

In Shakuntala Devi Jain v. Kuntal Kumari & Ors. [(1969) 1 SCR 1006],

a Bench of three Judges had held that unless want of bona fides of such

inaction or negligence as would deprive a party of the protection of

Section 5 is proved, the application must not be thrown out or any delay

cannot be refused to be condoned.

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In Concord of India Insurance Co. Ltd. v. Nirmala Devi & Ors. [(1979) 3

SCR 694] which is a case of negligence of the counsel which misled a

litigant into delayed pursuit of his remedy the default in delay was

condoned.

In Lala Mata Din v. A. Narayanan [(1970) 2 SCR 90], Court had held

that there is no general proposition that mistake of counsel by itself is

always sufficient cause for condonation of delay. It is always a question

whether the mistake was bona fide or was merely a devise to cover an

ulterior purpose. in that case it was held that the mistake committed by the

counsel was bona fide and it was not tainted by any mala fide motive.

In State of Kerala v. E.K. Kuriyipe & Ors. [(1981) Supp. SCC 72], it

was held that whether or not there is sufficient cause for condonation of

delay is a question of fact dependant upon the facts and circumstances of

the particular case.

In Smt. Milavi Devi v. Dina Nath [(1982) 3 SCR 366], it was held that

the appellant had sufficient cause for not filing the appeal within the period

of limitation.

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In O.P. Kathpaliaa v. Lakhmir Singh (dead) & Ors. [(1984) 4 SCC 66],

a Bench of three Judges had held that if the refusal to condone the delay

results in grave miscarriage of justice, it would be a ground to condone the

delay.

In Collector, Land Acquisition, Anantrag & Anr. v. Mst. Katiji & Ors.

[(1987) 2 SCC 107], a Bench of two Judges considered the question of

the limitation in an appeal filed by the State and held that Section 5 was

enacted in order to enable the court to do substantial justice to the parties

by disposing of matters on merits.

State Of Haryana vs Chandra Mani & Ors 1996 AIR 1623, 1996

SCC (3) 132 The expression "sufficient cause is adequately elastic to

enable the court to apply the law in a meaningful manner which subserves

the ends of the justice-that being the life-purpose for the existence of the

institution of courts. It is common knowledge that this Court has been

making a justifiably liberal approach in matters instituted in this Court. But

the message does not appear to have percolated down to all the other

courts in the hierarchy. This Court reiterated that the expression "every

day's delay must be explained" does not mean that a pedantic approach

should be made. The doctrine must be applied in a rational common sense

pragmatic manner. When substantial justice and technical considerations

are pitted against each other, cause of substantial justice deserves to be

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preferred for the other side cannot claim to have vested right in injustice

being done because of a non-deliberate delay. There is no presumption

that delay is occasioned deliberately, or on account of culpable negligence,

or on account of mala fides. A litigant does not stand to benefit by

resorting to delay. In fact he runs a serious risk. Judiciary is not respected

on account of its power to legalize injustice on technical grounds but

because it is capable of removing injustice and is expected to do so.

Making a justice-oriented approach from this perspective, there was

sufficient cause for condoning the delay in the institution of the appeal.

The fact that it was the State which was seeking condonation and not a

private party was altogether irrelevant. The doctrine of equality before law

demands that all litigants, including the State as a litigant, are accorded the

same treatment and the law is administered in an even-handed manner.

There is no warrant for according a step-motherly treatment when the

State is the applicant. The delay was accordingly condoned. Experience

shows that on account of an impersonal machinery ( no one in charge of the

matter is directly hit or hurt by the judgment sought to be subjected to

appeal) and the inherited bureaucratic methodology imbued with the note-

making, file-pushing, and passing-on-the-buck ethos, delay on its part is

less difficult to understand though more difficult to approve. The State

which represent collective cause of the community, does not deserve a

litigant-non-grata status. The courts, therefore, have to be informed with

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the spirit and philosophy of the provision in the course of the interpretation

of the expression of sufficient cause. Merit is preferred to scuttle a

decision on merits in turning down the case on technicalities of delay in

presenting the appeal. Delay was accordingly condoned, the order was set

aside and the matter was remitted to the High Court for disposal on merits

after affording opportunity of hearing to the parties.

In Smt. Prabha v. Ram Parkash Kalra [(1987) Supp. SCC 338], this

Court had held that the court should not adopt an injustice- oriented

approach in rejecting the application for condonation of delay. The appeal

was allowed, the delay was condoned and the matter was remitted for

expeditious disposal in accordance with law.

In G. Ramegowda, Major & Ors, v. Spl, Land Acquisition Officer,

Bangalore [(1988) 2 SCC 142], it was held that no general principle

saving the party from all mistakes of its counsel could be laid. The

expression "sufficient cause" must receive a liberal construction so as to

advance substantial justice and generally delays in preferring the appeals

are required to be condoned in the interest of justice where no gross

negligence or deliberate inaction or lack of bona is imputable to the party

seeking condonation of delay. In litigations to which Government is a party,

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there is yet another aspect which, perhaps, cannot be ignored. If appeals

brought by Government are lost for such defaults, no person is individually

affected; but what, in the ultimate analysis, suffers is public interest. The

decisions of Government are collective and institutional decisions and do

not share the characteristics of decisions of private individuals. The law of

limitation is, no doubt, the same for a private citizen as for Governmental

authorities. Government, like any other litigant must take responsibility for

the acts or omissions of its officers. But a somewhat different complexion is

imparted to the matter where Government makes out a case where public

interest was shown to have suffered owing to acts of fraud or bad faith on

the part of its officers or agents and where the officers were clearly at

cross-purposes with it. It was, therefore, held that in assessing what

constitutes sufficient cause for purposes of Section 5, it might, perhaps,

be somewhat unrealistic to exclude from the consideration that go into the

judicial verdict, these factors which are peculiar to and characteristic of the

functioning of the Government. Government decisions are proverbially

slow encumbered, as they are, by a considerable degree of procedural red

tape in the process of their making. A certain amount of latitude is,

therefore, not impermissible. It is rightly said that those who bear

responsibility of Government must have a little play at the joints'. Due

recognition of these limitations on Governmental functioning - of course,

within reasonable limits - is necessary if the judicial approach is not to be

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rendered unrealistic. It would, perhaps, be unfair and unrealistic to put

Government and private parties on the same footing in all respects in such

matters. Implicit in the very nature of Governmental functioning is

procedural delay incidental to the decision making process. The delay of

over one year was accordingly condoned.

In Scheduled Caste Coop. Land Owning Society Ltd., Bhatinda v.

Union of India & Ors. [(1991) 1 SCC 174], a Bench of three Judges of

this Court held that the bona fides of the parties are to be tested on merits

and the delay of 1146 to 1079 days was not condoned on the ground that

the parties approached the court after decision on merits was allowed in

other cases by this Court. Therefore, it was held that it did not furnish a

ground for condonation of delay under Section 5.

In Binod Bihari Singh v. Union of India [(1993) 1 SCC 572], it was held

that it is not at all a fit case where in the anxiety to render justice to a party

so that a just cause is not defeated, a pragmatic view should be taken by

the court in considering sufficing cause for condonation of the delay under

Section 5. It was held that when the party has come with a false plea to get

rid of the bar of limitation, the court should not encourage such person by

condoning the delay and result in the bar of limitation pleaded by the

opposite party. This Court, therefore, refused to condone the delay in

favour of the party who came forward with false plea.

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In M/s. Shakambari & Co. v. Union of India[(1993) Supp. 1 SCS

487], a Bench of three Judges held that delay caused in filing the appeal

due to fluctuation in laying down the law was held to be a sufficient cause

and delay of 14 days was condoned.

In Ram Krishan & Anr. v. U.P. State Roadways Transport Corpn. &

Anr. [(1994) Supp. 2 SCC 507], Court had held that although the

story put forward by the applicant for not filing the application for

compensation under the Motor Vehicles Act within the period of limitation

was not found convincing but keeping in vies the facts and circumstances

and cause of justice, the delay was condoned and the appeal was set aside

and the matter was remitted to the Tribunal to dispose it on merits.

State Of Haryana vs Chandra Mani & Ors 1996 AIR 1623, 1996

SCC (3) 132 It is notorious and common knowledge that delay in more

than 60 per cent of the cases filed in this Court - be it by private party or

the State - are barred by limitation and this Court generally adopts liberal

approach in condonation of delay finding somewhat sufficient cause to

decide the appeal on merits. It is equally common knowledge that litigants

including the State are accorded the same treatment and the law is

administered in an even-handed manner. When the State is an applicant,

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praying for condonation of delay, it is common knowledge that on account

of impersonal machinery and the inherited bureaucratic methodology

imbued with the note-making, file-pushing, and passing-on-the-buck ethos,

delay on the part of the State is less difficult to understand though more

difficult to approve, but the State represents collective cause of the

community. It is axiomatic that decisions are taken by officers/agencies

proverbially at slow pace and encumbered process of pushing the files from

table to table and keeping it on table for considerable time causing delay

intentional or otherwise - is a routine. Considerable delay of procedural

red tape in the process of their making decision is a common feature.

Therefore, certain amount of latitude is not impermissible. If the appeals

brought by the State are lost for such default no person is individually

affected but what in the ultimate analysis suffers, is public interest. The

expression "sufficient cause" should, therefore, be considered with

pragmatism in justice-oriented approach rather than the technical detection

of sufficient cause for explaining every day's delay. The factors which are

peculiar to and characteristic of the functioning of the Governmental

conditions would be cognizant to and requires adoption of pragmatic

approach in justice-oriented process. The Court should decide the

matters on merits unless the case is hopelessly without merit. No separate

standards to determine the cause laid by the State vis-a-vis private litigant

could be laid to prove strict standards of sufficient cause. The

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Government at appropriate level should constitute legal cells to examine

the cases whether any legal principles are involved for decision by the cours

or whether cases require adjustment and should authorise the officers take

a decision or give appropriate permission for settlement. In the event of

decision to file appeal needed prompt action should be pursued by the

officer responsible to file the appeal and he should be made personally

responsible for lapses, if any. Equally, the State cannot be put on the

same footing as an individual. The individual would always be quick in taking

the decision whether he would pursue the remedy by way of an appeal or

application since he is a person legally injured while State is an impersonal

machinery working through its officers or servants.

In the decision reported in 2001(9) SCC 106 (Vedabai @ vaijayanatabai

Baburoa Patil -vs- Shantaram Baburao Patil & Ors.) the Hon'ble

Supreme Court although professed a pragmatic approach to take in such

cases but sounded caution to become too liberal as one could found also in

the said judgement relevant portion which is reproduced below:- " A

distinction must be made between a case where the delay is inordinate and

a case where the delay is of a few days. Whereas in the former case the

consideration of prejudice to the other side will be a relevant factor so the

case calls for a more cautious approach but in the latter case, no such

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consideration may arise and such a case deserves a liberal approach. No

hard-and-fast rule can be laid down in this regard. The court also to

exercise the discretion on the facts of each case keeping in mind that in

construing the expression "sufficient cause", the principle of advancing

substantial justice is of prime importance."

In case reported in 2010(2) SCC 595, the Hon'ble Supreme Court was

considering the appeal filed by the State. While Hon'ble Supreme Court

repeated that no hard and fast rule could be laid down in deciding such

cases, but remanded the matter back to the courts to ascertain, if sufficient

cause is made out as would appear from Paragraph-8 of the said which

reads as follows: "8. We have considered the respective submission. The

law of limitation is founded on public policy. The legislature does not

prescribe limitation with the object of destroying the rights of the parties

but to ensure that they do not resort to dilatory tactics and seek remedy

without delay. The idea is that every legal remedy must be kept alive for a

period fixed by the legislature. To put it differently, the law of limitation

prescribes a period within which legal remedy can be availed for redress of

the legal injury. At the same time, the courts are bestowed with the power

to condone the delay, if sufficient cause is shown for not availing the

remedy within the stipulated time. The expression "sufficient cause"

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employed in Section 5 of the Indian Limitation Act, 1963 and similar other

statutes is elastic enough to enable the courts to apply the law in a

meaningful manner which sub serves the ends of justice. Although, no hard

and fast rule can be laid down in dealing with the applications for

condonation of delay, this Court has justifiably advocated adoption of a

liberal approach in condoning the delay of short duration and a stricter

approach where the delay is inordinate - Collector, Land Acquisition,

Anantnag v. Mst. Katiji (1987) 2 SCC 107, N. Balakrishnan v. M.

Krishnamurthy (1998) 7 SCC 123 and Vedabai v. Shantaram Baburao

Patil (2001) 9 SCC 106. In dealing with the applications for condonation

of delay filed on behalf of the State and its agencies/instrumentalities this

Court has, while emphasizing that same yardstick should be applied for

deciding the applications for condonation of delay filed by the private

individuals and the State, observed that certain amount of latitude is not

impermissible in the latter case because the State represents collective

cause of the community and the decisions are taken by the

officers/agencies at a slow pace and encumbered process of pushing the

files from table to table consumes considerable time causing delay - G.

Ramegowda v. Spl. Land Acquisition Officer (1988) 2 SCC 142,

State of Haryana v. Chandra Mani (1996) 3 SCC 132, State of U.P.

v. Harish Chandra (1996) 9 SCC 309, State of Bihar v. Ratan Lal

Sahu (1996) 10 SCC 635, State of Nagaland v. Lipok (2005) 3

Sridhara babu. N

SCC 752, and State (NCT of Delhi) v. Ahmed Jaan (2008) 14

SCC 582."

IF THE EXPLANATION DOES NOT SMACK OF

MALA FIDES OR IT IS NOT PUT FORTH AS PART OF

A DILATORY STRATEGY, THE COURT MUST

SHOW UTMOST CONSIDERATION TO THE

SUITOR

In N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123, the Court

went a step further and made the following observations: “It is axiomatic

that condonation of delay is a matter of discretion of the court. Section 5

of the Limitation Act does not say that such discretion can be exercised

only if the delay is within a certain limit. Length of delay is no matter,

acceptability of the explanation is the only criterion. Sometimes delay of

the shortest range may be uncondonable due to a want of acceptable

explanation whereas in certain other cases, delay of a very long range can

be condoned as the explanation thereof is satisfactory. Once the court

accepts the explanation as sufficient, it is the result of positive exercise of

discretion and normally the superior court should not disturb such finding,

much less in revisional jurisdiction, unless the exercise of discretion was on

wholly untenable grounds or arbitrary or perverse. But it is a different

matter when the first court refuses to condone the delay. In such cases, the

Sridhara babu. N

superior court would be free to consider the cause shown for the delay

afresh and it is open to such superior court to come to its own finding even

untrammelled by the conclusion of the lower court. Rules of limitation are

not meant to destroy the rights of parties. They are meant to see that

parties do not resort to dilatory tactics, but seek their remedy promptly.

The object of providing a legal remedy is to repair the damage caused by

reason of legal injury. The law of limitation fixes a lifespan for such legal

remedy for the redress of the legal injury so suffered. Time is precious and

wasted time would never revisit. During the efflux of time, newer causes

would sprout up necessitating newer persons to seek legal remedy by

approaching the courts. So a lifespan must be fixed for each remedy.

Unending period for launching the remedy may lead to unending

uncertainty and consequential anarchy. The law of limitation is thus

founded on public policy. It is enshrined in the maxim interest reipublicae up

sit finis litium (it is for the general welfare that a period be put to litigation).

Rules of limitation are not meant to destroy the rights of the parties. They

are meant to see that parties do not resort to dilatory tactics but seek their

remedy promptly. The idea is that every legal remedy must be kept alive for

a legislatively fixed period of time. It must be remembered that in every case

of delay, there can be some lapse on the part of the litigant concerned.

That alone is not enough to turn down his plea and to shut the door

against him. If the explanation does not smack of mala fides or it is not put

Sridhara babu. N

forth as part of a dilatory strategy, the court must show utmost

consideration to the suitor. But when there is reasonable ground to think

that the delay was occasioned by the party deliberately to gain time, then

the court should lean against acceptance of the explanation. While

condoning the delay, the court should not forget the opposite party

altogether. It must be borne in mind that he is a loser and he too would have

incurred quite large litigation expenses. It would be a salutary guideline that

when courts condone the delay due to laches on the part of the applicant,

the court shall compensate the opposite party for his loss.”

In P.K. Ramachandran v. State of Kerala, (1997) 7 SCC 556, Court

while reversing the order passed by the High Court which had condoned

565 days delay in filing an appeal by the State against the decree of the

Sub- Court in an arbitration application, observed that the law of

limitation may harshly affect a particular party but it has to be applied with

all its rigour when the statute so prescribes and the Courts have no power

to extend the period of limitation on equitable grounds.

In Vedabai v. Shantaram Baburao Patil, (2001) 9 SCC 106, the Court

observed that a distinction must be made between a case where the delay is

Sridhara babu. N

inordinate and a case where the delay is of few days and whereas in the

former case the consideration of prejudice to the other side will be a

relevant factor, in the latter case no such consideration arises.

While deciding whether there is a sufficient case or not, the court must

bear in mind the object of doing substantial justice to all the parties

concerned and that the technicalities of the law should not prevent the

court from doing substantial justice and doing away the illegality

perpetuated on the basis of the judgment impugned before it. (Vide: State

of Bihar & Ors. v. Kameshwar Prasad Singh & Anr., AIR 2000

SC 2306; Madanlal v. Shyamlal, AIR 2002 SC 100; Davinder Pal

Sehgal & Anr. v. M/s. Partap Steel Rolling Mills (P) Ltd. &

Ors., AIR 2002 SC 451; Ram Nath Sao alias Ram Nath Sao &

Ors. v. Gobardhan Sao & Ors., AIR 2002 SC 1201; Kaushalya

Devi v. Prem Chand & Anr. (2005) 10 SCC 127; Srei International

Finance Ltd., v. Fair growth Financial Services Ltd. & Anr., (2005)

13 SCC 95; and Reena Sadh v. Anjana Enterprises, AIR 2008 SC

2054).

Sridhara babu. N

In State (NCT of Delhi) v. Ahmed Jaan 2008 (11) SCALE 455 it

was held as follows: ....It is axiomatic that decisions are taken by officers/

agencies proverbially at slow pace and encumbered process of pushing the

files from table to table and keeping it on table for considerable time

causing delay - intentional or otherwise - is a routine. Considerable delay

of procedural red-tape in the process of their making decision is a common

feature. Therefore, certain amount of latitude is not impermissible. If the

appeals brought by the State are lost for such default no person is

individually affected but what in the ultimate analysis suffers, is public

interest. .....In the event of decision to file appeal needed prompt action

should be pursued by the officer responsible to file the appeal and he

should be made personally responsible for lapses, if any. Equally, the

State cannot be put on the same footing as an individual. The individual

would always be quick in taking the decision whether he would pursue the

remedy by way of an appeal or application since he is a person legally

injured while State is an impersonal machinery working through its officers

or servants”

Supreme Court in N. Balakrishnan v. M. Krishnamurthy, AIR 1998 SC

3222 wherein the Apex Court held that the rules of limitation are not

Sridhara babu. N

meant to destroy the rights of the parties. They are meant only to see that

parties do not resort to dilatory tactics but seek their remedy promptly.

COURT SHOULD BE LIBERAL IN SETTING ASIDE

EXPARTE DECREES

Hon'ble Apex Court in the case of G. P. Srivastava vs. R. K. Raizada

and others reported as (2000) 3 Supreme Court Cases 54. The ratio of

law laid down in these judgments is that the Court should be liberal in

setting aside ex-parte decree and a party should be allowed to contest the

litigation and substantial justice should be done. In view of these judgments

also, it would not be desirable to interfere with the impugned order of the

trial court.

(1995) 6 Supreme Court Cases 148, Vijaykumar Durgaprasad Gajbi

and Others vs. Kamlabai and Others, the relevant head notes of which are

as follows:

"Civil Procedure Code, 1908 Or. 9 R. 13 Application for setting

aside ex parte eviction order Whether proper explanation given by

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appellants for their failure to appear before court No material placed by

appellants showing that they were diligently prosecuting the suit On the

other hand trial court recording that the appellants, being in actual

possession of the suit property, were intending to prolong the matter and

that there was no bona fide reason or genuineness for their non-

appearance Accordingly trail court dismissing the appellants' application

and High Court in exercise of discretion under S.115 declining to

interfere held, in view of the categorical findings of trial court, it was not

appropriate case for the Supreme Court to interfere under Art.136 to

further prolong the matter Constitution of India, Art.136 Interference

denied."

(2005) 11 Supreme Court Cases 800, P.Mani Moopanar v.s

K.Rajammal and Others, the relevant head notes of which are as follows:

"A.Limitation Act, 1963 S. 5 Exercise to be conducted for

condonation of delay under held, said exercise is limited to examining

sufficiency of cause shown to explain delay Court may not condone delay

on taking an overall view of the matter on merits, as erroneously done by

High Court in present case Hence, though it was open to High Court to

Sridhara babu. N

accept explanation given by respondents for condoning the delay, but

without setting aside findings of trial court on sufficiency of cause shown, it

was not permissible for High Court to enter into merits of the dispute and

condone the delay.

PARTY CANNOT DISOWN HIS ADVOCATE AND

SEEK RELIEF

In Salil Dutta v. T.M. & Mc (P) Ltd. 1993 SCR (1) 794, 1993 SCC

(2) 185 the Apex Court, after considering its earlier judgment in Rafiq

(supra) observed that the said case was decided on the facts involved

therein and, thus, it did not lay down any absolute proposition. The Court

observed as under: It is true that in certain situations, the Court may, in the

interest of justice, set aside a dismissal order or an ex parte decree

notwithstanding the negligence and/or misdemeanour of the advocate

where it finds that the client was an innocent litigant but there is no such

absolute rule that a party can disown its advocate at any time and seek

relief. No such absolute immunity can be recognised. Such an absolute rule

would make the working of the system extremely difficult. ………………… It is

difficult. to believe that the respondents implicitly believed their advocate's

advice. Being educated businessmen they would have known that non-

participation at the final hearing of the suit would necessarily result In an

adverse decision. This Court is not prepared to believe that such an

advice was in fact tendered by the advocate. No advocate worth his salt

would give such advice to his client. Secondly, there are several

contradictions in his deposition. Therefore, the story set up by the

respondent- company in its application under Order 9 Rule 13 is an after-

thought and ought not to have been accepted by the Division Bench, more

particularly, when it had rejected the very case in its earlier judgment.

Sridhara babu. N

Syed Mujibur Rahman vs Abdul Azeez AIR 2001 Kant 104 , This is a

case came before Karnataka High Court, Challenging the order passed

by lower court in setting aside Exparte order of dismissal of suit for non

prosecution, under an application under Order 9 Rule 9. The cause, both

for default in appearance ………… in the said suit, and also for the delay of

about 18 months caused in filing of the application in the said Misc. case

…………. given by applicant-plaintiff was the common cause, and it was the

alleged negligence on the part of his learned counsel …………. representing

him in the suit. In informing him of the dates of hearing in the suit and of the

trial court's said order ………… passed dismissing the suit. Lower court

accepted plaintiff’s plea and set aside the order. Before High court, the

impugned order of the Court below is set aside and the application under

Order 9 Rule 9, C.P.C. filed therein is dismissed as time barred.

WHAT IS SUFFICIENT CAUSE ?

Justice A. Ananda of Karnataka High Court in the case of Smt K M

Sharmila Umesh vs Smt Maryamma observed as follows:- “In the decision

of (Parimal vs Veena @ Bharti) reported in (2011) 3 SCC 545, at

paragraph 13, the Supreme Court has held as under: "Sufficient cause" is

an expression which has been used in a large number of statutes. The

meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may

be necessary to answer the purpose intended. Therefore, word "sufficient"

embraces no more than that which provides a platitutde which when the act

done suffices to accomplish the purpose intended in the facts and

circumstances existing in a case and duly examined from the viewpoint of a

Sridhara babu. N

reasonable standard of a cautious man. In this context, "sufficient cause"

means that the party had not acted in a negligent manner or there was a

want of bona fide on its part in view of the facts and circumstances of a

case or the party cannot be alleged to have been "not acting diligently" or

"remaining inactive". However, the facts and circumstances of each case

must afford sufficient ground to enable the court concerned to exercise

discretion for the reason that whenever the court exercises discretion, it has

to be exercised judiciously. (Vide Ramlal v. Rewa Coalfields Ltd. AIR

1962 SC 361; , Lonand Grampanchayat v. Ramgiri Gosavi AIR 1968

SC 222; Surinder Singh Sibia v. Vijay Kumar Sood AIR 1992 SC

1540; and Oriental Aroma Chemical Industries Ltd., v. Gujarat Industrial

Development Corpn. (2010) 5 SCC 459). In the aforestated judgment,

the Supreme Court has held the facts and circumstances of each case

must afford sufficient ground to enable the Court concerned to exercise

discretion for the reason that whenever the Court exercises discretion, it

has to be exercised judiciously.

SUFFICIENT CAUSE AND GOOD CAUSE

DIFFERENTIATED

In Arjun Singh v. Mohindra Kumar & Ors., AIR 1964 SC 993,

Court observed that every good cause is a sufficient cause and must offer

an explanation for non-appearance. The only difference between a “good

cause” and “sufficient cause” is that the requirement of a good cause is

complied with on a lesser degree of proof than that of a “sufficient cause”.

COURT SHALL DO SUBSTANTIAL JUSTICE TO

ALL THE PARTIES

(Parimal vs Veena @ Bharti) reported in (2011) 3 SCC 545 :- While

deciding whether there is a sufficient case or not, the court must bear in

mind the object of doing substantial justice to all the parties concerned and

Sridhara babu. N

that the technicalities of the law should not prevent the court from doing

substantial justice and doing away the illegality perpetuated on the basis of

the judgment impugned before it. (Vide: State of Bihar & Ors. v.

Kameshwar Prasad Singh & Anr., AIR 2000 SC 2306; Madanlal v.

Shyamlal, AIR 2002 SC 100; Davinder Pal Sehgal & Anr. v. M/s.

Partap Steel Rolling Mills (P) Ltd. & Ors., AIR 2002 SC 451; Ram

Nath Sao alias Ram Nath Sao & Ors. v. Gobardhan Sao &

Ors., AIR 2002 SC 1201; Kaushalya Devi v. Prem Chand & Anr.

(2005) 10 SCC 127; Srei International Finance Ltd., v. Fair growth

Financial Services Ltd. & Anr., (2005) 13 SCC 95; and Reena

Sadh v. Anjana Enterprises, AIR 2008 SC 2054).

LAW OF LIMITATION AND SUBSTANTIAL

JUSTICE

THE HON'BLE MR.JUSTICE N.ANANDA of

Karnataka High Court in the case of Sri Hansraj vs Smt

Sandhya E Rao Decided Decided on 27 September, 2012

held that “The appellant has admitted though he was suffering

from several ailments, he was not admitted to hospital. There is

no satisfactory evidence in proof of ailments pleaded by

appellant. In the circumstances, the learned trial Judge has held

that appellant has failed to establish sufficient cause for

condonation of delay. The appellant has failed to satisfy the

court that he was prevented from sufficient cause from

appearing before the court on the date exparte decree was

made. In a decision reported in (2011) 4 SCC 363 (in the case

of Lanka Venkateswarlu (dead) by LRs. Vs. State of Andhra

Pradesh & Others), the Supreme Court has held:- "28. .....The

Sridhara babu. N

concepts such as "liberal approach", "justice oriented approach",

"substantial justice" cannot be employed to jettison the

substantial law of limitation. Especially, in cases where the court

concludes that there is no justification for the delay. .....Whilst

considering applications for condonation of delay under

Section 5 of the Limitation Act, the courts do not enjoy

unlimited and unbridled discretionary powers. All discretionary

powers, especially judicial powers, have to be exercised within

reasonable bounds, known to the law. The discretion has to be

exercised in a systematic manner informed by reason. Whims or

fancies; prejudices or predilections cannot and should not form

the basis of exercising discretionary powers."

The Supreme Court in the case of Collector, Land Acquisition,

Anantnag and Anr. v. Mst. Katiji and Ors. AIR 1987 SC 1353 held as

under: The legislature has conferred the power to condone delay by

enacting Section 5 of the Indian Limitation Act of 1963 in order to enable

the Courts to do substantial justice to parties by disposing of matters on

'merits'. The expression "sufficient cause" employed by the legislature

Page 0795 is adequately elastic to enable the Courts to apply the law in a

meaningful manner which sub-serves the ends of Justice that being the life-

purpose for the existence of the institution of Courts. It is common

knowledge that this Court has been making a justifiably liberal approach in

Sridhara babu. N

matters instituted in this Court. But the message does not appear to have

percolated down to all other Courts in the hierarchy. And such a liberal

approach is adopted on principle as it is realized that: Ordinarily a litigant

does not stand to benefit by lodging an appeal late. Refusing to condone

delay can result in a meritorious matter being thrown out at the very

threshold and cause of justice being defeated. As against this when delay

is condoned the highest that can happen is that a cause would be decided

on merits after hearing the parties.










237], Supreme Court held that discretion given by Section 5 should not

be defined or crystalized so as to convert a discretionary matter into a rigid

Sridhara babu. N


construction.












condoned.

In Lala Mata Din v. A. Narayanan [(1970) 2 SCR 90], Supreme Court

had held that there is no general proposition that mistake of counsel by

itself is always sufficient cause for condonation of delay. It is always a

question whether the mistake was bona fide or was merely a devise tn cover

Sridhara babu. N

an ulterior purpose. in that case it was held that the mistake committed by

the counsel was bona fide and it was not tainted by any mala fide motive.







of limitation. This Court under Art.136 can reassess the ground and in

appropriate case set aside the order made by the High Court or the

Tribunal and remit the matter for hearing on merits. It was accordingly

allowed, delay was condoned and case was remitted for decision on merits.




delay. Delay was accordingly condoned.

In Collector, Land Acquisition, Anantrag & Anr. v. Mst. Katiji & Ors.

[(1987) 2 SCC 107], a Bench of two Judges considered the question of

Sridhara babu. N



by disposing of matters on merits. The expression "sufficient cause is

adequately elastic to enable the court to apply the law in a meaningful

manner which subserves the ends of the justice-that being the life-purpose

for the existence of the institution of courts. It is common knowledge that

this Court has been making a justifiably liberal approach in matters

instituted in this Court. But the message does not appear to have

percolated down to all the other courts in the hierarchy. This Court

reiterated that the expression "every day's delay must be explained" does

not mean that a pedantic approach should be made. The doctrine must be

applied in a rational common sense pragmatic manner. When substantial

justice and technical considerations are pitted against each other, cause of

substantial justice deserves to be preferred for the other side cannot claim

to have vested right in injustice being done because of a non-deliberate

delay. There is no presumption that delay is occasioned deliberately, or on



Judiciary is not respected on account of its power to legalize injustice on

technical grounds but because it is capable of removing injustice and is

expected to do so. Making a justice-oriented approach from this

perspective, there was sufficient cause for condoning the delay in the

Sridhara babu. N

institution of the appeal. The fact that it was the State which was seeking

condonation and not a private party was altogether irrelevant. The

doctrine of equality before law demands that all litigants, including the

State as a litigant, are accorded the same treatment and the law is

administered in an even-handed manner. There is no warrant for according

a step-motherly treatment when the State is the applicant. The delay was

accordingly condoned. Experience shows that on account of an impersonal

machinery ( no one in charge of the matter is directly hit or hurt by the

judgment sought to be subjected to appeal) and the inherited bureaucratic

methodology imbued with the note-making, file-pushing, and passing-on-

the-buck ethos, delay on its part is less difficult to understand though more

difficult to approve. The State which represent collective cause of the

community, does not deserve a litigant-non-grata status. The courts,

therefore, have to be informed with the spirit and philosophy of the

provision in the course of the interpretation of the expression of sufficient

cause. Merit is preferred to scuttle a decision on merits in turning down the

case on technicalities of delay in presenting the appeal. Delay was

accordingly condoned, the order was set aside and the matter was remitted

to the High Court for disposal on merits after affording opportunity of

hearing to the parties.

Sridhara babu. N

In Smt. Prabha v. Ram Parkash Kalra [(1987) Supp. SCC 338],

Supreme Court had held that the court should not adopt an injustice-

oriented approach in rejecting the application for condonation of delay.

The appeal was allowed, the delay was condoned and the matter was

remitted for expeditious disposal in accordance with law.


















Sridhara babu. N





















Supreme Court held that the bona fides of the parties are to be tested on

Sridhara babu. N

merits and the delay of 1146 to 1079 days was not condoned on the

ground that the parties approached the court after decision on merits was

allowed in other cases by this Court. Therefore, it was held that it did not

furnish a ground for condonation of delay under Section 5.










In M/s. Shakambari & Co. v. Union of India [(1993) Supp. 1 SCS





Anr. [(1994) Supp. 2 SCC 507], Supreme Court had held that

Sridhara babu. N

although the story put forward by the applicant for not filing the

application for compensation under the Motor Vehicles Act within the

period of limitation was not found convincing but keeping in vies the facts

and circumstances and cause of justice, the delay was condoned and the

appeal was set aside and the matter was remitted to the Tribunal to

dispose it on merits.

In Warlu v. Gangotribai & Anr. [(1995) Supp. 1 SCC 37] a three-

Judge Bench condoned delay of 11 years in filing the special leave

petition.

Following these Obove judgments, the Supreme Court in the case of

State of Haryana v. Chandra Mani and Ors. AIR 1996 SC 1623 , has

held as under: It is notorious and common knowledge that delay in more










Sridhara babu. N























Sridhara babu. N








machinery working through its officers or servants. Considered from this

perspective, it must be held that the delay of 109 days in this case has been

explained and that it is a fit case for condonation of the delay. On the facts

and circumstances of the case, we are of the opinion that it is a fit case for

condoning the delay. The delay is accordingly condoned. The High

Court is requested to dispose of the appeal as expeditiously as possible.

GOVERNMENT AND PUBLIC DUPED BY OFFICIALS

In The State Of Karnataka VS H.B. Munivenkatappa 2007 (4)

KarLJ 439 JUSTICE N KUMAR OBSEERVED:- “The

officials of the Government, the advocates who are conducting the cases

on behalf of the Government and others have let down the interest of the

Government and public. Under these circumstances, I am of the view it

would be appropriate to refer the entries in the original ledger book where

Sridhara babu. N

Form No. 7 is noted and orders passed by the Land Reforms Tribunal,

Bangalore South Taluk in all those cases at any rate as contained in this

book, for enquiry to the aforesaid committee which may throw some light on

the way the tribunal, the Government officials and others have discharged

their duties in protecting public property, and if illegalities are found to take

steps to restore the land to the Government.”

DO NOT REGULARIZE INJUSTICE ON TECHNICAL

GROUNDS REMOVE INJUSTICE



judiciary is respected not on account of its power to regularize injustice on


expected to do so. If appeals brought by the Government are lost on

account of delay, no person is individually affected, but what in the ultimate

analysis suffers is, the public interest. The law of Limitation is no doubt the

same for private citizen as well as for Governmental authorities.

Government, like any other litigant must take the responsibility for the acts

or omissions of its officers. But some what different complexion is imparted

to the matter where Government makes out a case where public interest

was shown to have suffered owing to the acts of fraud or bad faith on the

Sridhara babu. N

part of its officers or agents and where the officers were clearly at cross-

purposes with it. On account of impersonal machinery, no one Page 0797

incharge of the matter is directly hit or hurt by the judgment sought to be

subjected to appeal and the inherited bureaucratic methodology imbued

with the note-making, file pushing and passing on the buck ethos, delay on

its part is less difficult to understand though more difficult to approve. In

any event, the State which represent collective cause of the community,

does not deserve a litigant-non-grata status. The Courts therefore, have

to be informed with the spirit and philosophy of the provision in the course

of the interpretation of the expression of sufficient cause. Refusing to

condone the delay can result in a meritorious matter being thrown out, at

the very threshold and cause of justice being defeated. As against this,

when delay is condoned, the highest that can happen is that a case would

be decided on merits after hearing the parties. When substantial justice

and technical considerations are pitted against each other, cause of

substantial justice deserves to be preferred. The technicalities of

procedure should yield to considerations which would promote public

interest and substantial justice. The Courts should decide the matters on

merits, unless it is hopelessly without any merit.”

DECREE WITHOUT JURISDICTION IS NULLITY

Sridhara babu. N


KarLJ 439 JUSTICE N KUMAR OBSEERVED:- “It is also a

fundamental principle, that a decree passed by the Court without

jurisdiction is a nullity. Its validity can be set up whenever and where ever it

is sought to be enforced or relied upon, even at the stage of execution and

even in collateral proceedings. The defect of jurisdiction whether it is

technical or territorial or whether it is in respect of subject matter of action,

strikes at the very authority of the Court to pass any decree and such

defect cannot be cured even by consent of parties. Nullity has to be

understood in the sense that it is ultra vires the power of the court passing

the decree and not merely avoidable decree. If the decree strikes at the

jurisdiction of the Court or the Court lacks jurisdiction, it strikes at the

very root of the authority to pass the order or the decree. The decree

passed by such a Court is a nullity and non est.”

PUBLIC PROPERTY NOT HANDLED PROPERLY



material on record discloses at every stage the persons who were entrusted

with the responsibility of protecting the public property have let down the

Government. The way the litigation has been fought and the way the

Government representatives and their counsel have let down the public

Sridhara babu. N

interest, is shocking. When the matter was brought to the notice of the

Lokayuktha, it issued a clean chit to those officials saying that the public

interest has not suffered. There cannot be a worst situation than this. A

mighty Government rendered helpless by such advise and breach of trust.

If the order of the Land Reforms Tribunal exists as contended by the

plaintiff, it is clear that the Assistant Commissioner who is the Chairman of

the Tribunal has failed to notice the aforesaid statutory provisions which

confers no right to the vested land in the inamdar and the Tribunal to grant

occupancy rights in respect of a tank bed. He is a party to this order of

grant granting public property to the plaintiff. When the suit was filed for

Page 0798 declaration of title on the basis of the said document though

appropriate defence were taken in the written statement, the same is not

pursued as they were expected to and in the result a decree came to be

passed. Though it was stated in the written statement filed in the suit,

steps would be taken to challenge the order of the Land Tribunal, no writ

petition was filed, a serious lapse. The learned Government Advocate who

conducted the case on behalf of the Government instead of advising

suitably the Government to prefer an appeal, gave his opinion that it is not

a fit case for an appeal. The Director of Public Prosecution (Civil) who

was expected to apply his mind and take an independent decision has failed

to discharge his duties and he has concurred with the opinion given by the

learned Government Advocate not to prefer an appeal. It appears

Sridhara babu. N

thereafter the concerned file did not reach the Law Department nor any

opinion was sought from the Law Department. Even when the matter was

being agitated in this Court in writ proceedings, advocate who was incharge

of these matters appears to have not applied his mind properly.”

PRAISE FOR GOOD OFFICIALS – ALL ARE NOT

BAD – LOKAYUKTA’S BLINDNESS


KarLJ 439 JUSTICE N KUMAR OBSEERVED:- “However,

it is heartening to note that there are some officials still left in the

administration who have a commitment in life and who think about public

good. The said officiate at the relevant point of time did notice that the

schedule land is a Government land and it is a 'sarkari kere' and mutation

entries cannot be made in the name of the decree holder. They resisted the

attempt to get the mutation entries made. It is only when arrest warrants

were issued against them for disobeying the decree of a Civil Court, the

Government realised the blunder they have committed and the Law

Officers who betrayed its trust. Then they have approached the Law

Department, sought for their opinion and on consideration of the entire

material the Law Department gave its advice on 22.12.2003 to the effect

that it is a fit case for preferring the appeal. On 7.1.2004 the Government

Sridhara babu. N

accorded sanction to prefer the appeal. When Lokayukta was requested

to investigate the circumstances in which no appeal was filed earlier, the

Lokayukta had issued an endorsement to the effect that there are no

laches on the part of any Government servant and that it appears that no

loss has been caused to the State. It is thereafter the appeal is filed with

an application for condonation of delay.”

LEGAL ADVISORS OF GOVERNMENT GOT BLOW

IN THIS CASE


KarLJ 439 JUSTICE N KUMAR OBSEERVED:- “A

beginner in the legal profession would know, that against a judgment and

decree of declaration of title, an appeal lies and not a revision. This is the

type of legal advise which has been given to the Government over a period

of nearly ten years. "It is a case of salt having lost its savour". The judicial

Page 0799 process is used to acquire rights over the Government

property, a clear case of abuse of judicial process.”

GOVERNMENT FACING CHALLENGES WITH

IN/OUT IN LEGAL FIELD

Sridhara babu. N


KarLJ 439 JUSTICE N KUMAR OBSEERVED:-

“Karnataka being one of the progressive State in the Union of India,

Bangalore being the center of attraction to the whole world, unfortunately,

the professional legal advise given to the Government is of this nature. It is

no wonder that the value of landed property in Bangalore is more than gold

and the real estate business is the most thriving business in the city of

Bangalore. The State Legislature has to appoint a Committee to go into

this problem of grabbing of Government lands which runs to thousands of

acres involving crores of rupees. The said Committee has submitted an

interim report blaming the officials and lawyers in-charge of the case and

others being a privy to these illegal activities right under the nose of the

seat of power. Now that multinational companies are competing with each

other to have a foot hold in Bangalore, with the liberalization, globalization

and privatization, having its impact on all walks of life in the society, whether

the Government is capable of meeting the challenges in the field of law and

in protecting its people and its properties, with the kind of legal assistance

they have. There is no dearth for legal talent in the State. The problem is

the mind to utilise the said talent. This case should be an eye opener to the

Government. It is for them to take appropriate steps to overhaul their

revenue, and legal department, including the quality of the Advocates they

Sridhara babu. N

choose to represent them in Courts, if the Government is sincere in

protecting the public and its properties.”

A.U. Valiulla vs A.V. Shafiulla 2003 (4) KarLJ 507 It is no doubt true

that the Court should be liberal in the matter of condoning the delay in

preferring the appeal especially when no mala fides are attributed. But

then, the delay is inexcusable unless sufficient cause is shown. It is not the

law when an application seeking condonation of delay is filed by a party,

this Court must invariably condone the delay, irrespective of whether

sufficient cause is shown or not. Section 5 of the limitation Act gives the

Court a discretion which in respect of jurisdiction is to be exercised in the

way in which judicial power and discretion ought to be exercised upon

principles which are well-understood and the words "sufficient cause"

receiving a liberal construction so as to advance substantial justice when no

negligence nor inaction nor want of bona fide is imputable to the appellant.

In the instant case, though the appellant was aware of the judgment and

decree passed by the first Appellate Court in the month of March 2002,

he did not file the appeal within the prescribed time. The explanation

offered to condone the delay is neither convincing nor acceptable and more

so when the same is not supported by any material on record. On the face

of it, there appears to be no sufficient cause to condone the delay.

Sridhara babu. N

The Supreme Court in the case of Collector, Land Acquisition,

Anantnag and Anr. v. Mst. Katiji and Ors. AIR 1987 SC 1353 held as

under: The legislature has conferred the power to condone delay by


the Courts to do substantial justice to parties by disposing of matters on

'merits'. The expression "sufficient cause" employed by the legislature

Page 0795 is adequately elastic to enable the Courts to apply the law in a

meaningful manner which sub-serves the ends of Justice that being the life-

purpose for the existence of the institution of Courts. It is common



percolated down to all other Courts in the hierarchy. And such a liberal

approach is adopted on principle as it is realized that: Ordinarily a litigant

does not stand to benefit by lodging an appeal late. Refusing to condone

delay can result in a meritorious matter being thrown out at the very

threshold and cause of justice being defeated. As against this when delay

is condoned the highest that can happen is that a cause would be decided

on merits after hearing the parties.



Sridhara babu. N








237], Supreme Court held that discretion given by Section 5 should not

be defined or crystalized so as to convert a discretionary matter into a rigid


construction.









Sridhara babu. N




condoned.

In Lala Mata Din v. A. Narayanan [(1970) 2 SCR 90], Supreme Court

had held that there is no general proposition that mistake of counsel by

itself is always sufficient cause for condonation of delay. It is always a

question whether the mistake was bona fide or was merely a devise tn cover

an ulterior purpose. in that case it was held that the mistake committed by

the counsel was bona fide and it was not tainted by any mala fide motive.







of limitation. This Court under Art.136 can reassess the ground and in

appropriate case set aside the order made by the High Court or the

Sridhara babu. N

Tribunal and remit the matter for hearing on merits. It was accordingly

allowed, delay was condoned and case was remitted for decision on merits.




delay. Delay was accordingly condoned.

In Collector, Land Acquisition, Anantrag & Anr. v. Mst. Katiji &

Ors. [(1987) 2 SCC 107], a Bench of two Judges considered the

question of the limitation in an appeal filed by the State and held that

Section 5 was enacted in order to enable the court to do substantial

justice to the parties by disposing of matters on merits. The expression

"sufficient cause is adequately elastic to enable the court to apply the law

in a meaningful manner which subserves the ends of the justice-that being

the life-purpose for the existence of the institution of courts. It is common







Sridhara babu. N







Judiciary is not respected on account of its power to legalize injustice on










accordingly condoned. Experience shows that on account of an impersonal

machinery ( no one in charge of the matter is directly hit or hurt by the

judgment sought to be subjected to appeal) and the inherited bureaucratic

methodology imbued with the note-making, file-pushing, and passing-on-

the-buck ethos, delay on its part is less difficult to understand though more

difficult to approve. The State which represent collective cause of the

Sridhara babu. N

community, does not deserve a litigant-non-grata status. The courts,

therefore, have to be informed with the spirit and philosophy of the

provision in the course of the interpretation of the expression of sufficient

cause. Merit is preferred to scuttle a decision on merits in turning down the

case on technicalities of delay in presenting the appeal. Delay was

accordingly condoned, the order was set aside and the matter was remitted

to the High Court for disposal on merits after affording opportunity of

hearing to the parties.

In Smt. Prabha v. Ram Parkash Kalra [(1987) Supp. SCC 338],

Supreme Court had held that the court should not adopt an injustice-

oriented approach in rejecting the application for condonation of delay.

The appeal was allowed, the delay was condoned and the matter was

remitted for expeditious disposal in accordance with law.









Sridhara babu. N























Sridhara babu. N








Supreme Court held that the bona fides of the parties are to be tested on

merits and the delay of 1146 to 1079 days was not condoned on the

ground that the parties approached the court after decision on merits was

allowed in other cases by this Court. Therefore, it was held that it did not

furnish a ground for condonation of delay under Section 5.








Sridhara babu. N



In M/s. Shakambari & Co. v. Union of India [(1993) Supp. 1 SCS





Anr. [(1994) Supp. 2 SCC 507], Supreme Court had held that

although the story put forward by the applicant for not filing the

application for compensation under the Motor Vehicles Act within the

period of limitation was not found convincing but keeping in vies the facts

and circumstances and cause of justice, the delay was condoned and the

appeal was set aside and the matter was remitted to the Tribunal to

dispose it on merits.

In Warlu v. Gangotribai & Anr. [(1995) Supp. 1 SCC 37] a three-

Judge Bench condoned delay of 11 years in filing the special leave

petition.

Following these Obove judgments, the Supreme Court in the case

of State of Haryana v. Chandra Mani and Ors. AIR 1996 SC 1623 ,

Sridhara babu. N

has held as under: It is notorious and common knowledge that delay in more






















Sridhara babu. N


















machinery working through its officers or servants. Considered from this

perspective, it must be held that the delay of 109 days in this case has been

explained and that it is a fit case for condonation of the delay. On the facts

and circumstances of the case, we are of the opinion that it is a fit case for

Sridhara babu. N

condoning the delay. The delay is accordingly condoned. The High

Court is requested to dispose of the appeal as expeditiously as possible.

GOVERNMENT AND PUBLIC DUPED BY OFFICIALS



officials of the Government, the advocates who are conducting the cases

on behalf of the Government and others have let down the interest of the

Government and public. Under these circumstances, I am of the view it

would be appropriate to refer the entries in the original ledger book where

Form No. 7 is noted and orders passed by the Land Reforms Tribunal,

Bangalore South Taluk in all those cases at any rate as contained in this

book, for enquiry to the aforesaid committee which may throw some light on

the way the tribunal, the Government officials and others have discharged

their duties in protecting public property, and if illegalities are found to take

steps to restore the land to the Government.”

DO NOT REGULARIZE INJUSTICE ON TECHNICAL

GROUNDS REMOVE INJUSTICE

Sridhara babu. N



judiciary is respected not on account of its power to regularize injustice on


expected to do so. If appeals brought by the Government are lost on

account of delay, no person is individually affected, but what in the ultimate

analysis suffers is, the public interest. The law of Limitation is no doubt the

same for private citizen as well as for Governmental authorities.

Government, like any other litigant must take the responsibility for the acts

or omissions of its officers. But some what different complexion is imparted


was shown to have suffered owing to the acts of fraud or bad faith on the

part of its officers or agents and where the officers were clearly at cross-

purposes with it. On account of impersonal machinery, no one Page 0797

incharge of the matter is directly hit or hurt by the judgment sought to be

subjected to appeal and the inherited bureaucratic methodology imbued

with the note-making, file pushing and passing on the buck ethos, delay on

its part is less difficult to understand though more difficult to approve. In

any event, the State which represent collective cause of the community,

does not deserve a litigant-non-grata status. The Courts therefore, have

to be informed with the spirit and philosophy of the provision in the course

of the interpretation of the expression of sufficient cause. Refusing to

Sridhara babu. N

condone the delay can result in a meritorious matter being thrown out, at

the very threshold and cause of justice being defeated. As against this,

when delay is condoned, the highest that can happen is that a case would

be decided on merits after hearing the parties. When substantial justice

and technical considerations are pitted against each other, cause of

substantial justice deserves to be preferred. The technicalities of

procedure should yield to considerations which would promote public

interest and substantial justice. The Courts should decide the matters on

merits, unless it is hopelessly without any merit.”

DECREE WITHOUT JURISDICTION IS NULLITY


KarLJ 439 JUSTICE N KUMAR OBSEERVED:- “It is also a

fundamental principle, that a decree passed by the Court without

jurisdiction is a nullity. Its validity can be set up whenever and where ever it

is sought to be enforced or relied upon, even at the stage of execution and

even in collateral proceedings. The defect of jurisdiction whether it is

technical or territorial or whether it is in respect of subject matter of action,

strikes at the very authority of the Court to pass any decree and such

defect cannot be cured even by consent of parties. Nullity has to be

understood in the sense that it is ultra vires the power of the court passing

Sridhara babu. N

the decree and not merely avoidable decree. If the decree strikes at the

jurisdiction of the Court or the Court lacks jurisdiction, it strikes at the

very root of the authority to pass the order or the decree. The decree

passed by such a Court is a nullity and non est.”

PUBLIC PROPERTY NOT HANDLED PROPERLY



material on record discloses at every stage the persons who were entrusted

with the responsibility of protecting the public property have let down the

Government. The way the litigation has been fought and the way the

Government representatives and their counsel have let down the public

interest, is shocking. When the matter was brought to the notice of the

Lokayuktha, it issued a clean chit to those officials saying that the public

interest has not suffered. There cannot be a worst situation than this. A

mighty Government rendered helpless by such advise and breach of trust.

If the order of the Land Reforms Tribunal exists as contended by the

plaintiff, it is clear that the Assistant Commissioner who is the Chairman of

the Tribunal has failed to notice the aforesaid statutory provisions which

confers no right to the vested land in the inamdar and the Tribunal to grant

occupancy rights in respect of a tank bed. He is a party to this order of

grant granting public property to the plaintiff. When the suit was filed for

Sridhara babu. N

Page 0798 declaration of title on the basis of the said document though

appropriate defence were taken in the written statement, the same is not

pursued as they were expected to and in the result a decree came to be

passed. Though it was stated in the written statement filed in the suit,

steps would be taken to challenge the order of the Land Tribunal, no writ

petition was filed, a serious lapse. The learned Government Advocate who

conducted the case on behalf of the Government instead of advising

suitably the Government to prefer an appeal, gave his opinion that it is not

a fit case for an appeal. The Director of Public Prosecution (Civil) who

was expected to apply his mind and take an independent decision has failed

to discharge his duties and he has concurred with the opinion given by the

learned Government Advocate not to prefer an appeal. It appears

thereafter the concerned file did not reach the Law Department nor any

opinion was sought from the Law Department. Even when the matter was

being agitated in this Court in writ proceedings, advocate who was incharge

of these matters appears to have not applied his mind properly.”

PRAISE FOR GOOD OFFICIALS – ALL ARE NOT

BAD – LOKAYUKTA’S BLINDNESS


KarLJ 439 JUSTICE N KUMAR OBSEERVED:- “However,

Sridhara babu. N

it is heartening to note that there are some officials still left in the

administration who have a commitment in life and who think about public

good. The said officiate at the relevant point of time did notice that the

schedule land is a Government land and it is a 'sarkari kere' and mutation

entries cannot be made in the name of the decree holder. They resisted the

attempt to get the mutation entries made. It is only when arrest warrants

were issued against them for disobeying the decree of a Civil Court, the

Government realised the blunder they have committed and the Law

Officers who betrayed its trust. Then they have approached the Law

Department, sought for their opinion and on consideration of the entire

material the Law Department gave its advice on 22.12.2003 to the effect

that it is a fit case for preferring the appeal. On 7.1.2004 the Government

accorded sanction to prefer the appeal. When Lokayukta was requested

to investigate the circumstances in which no appeal was filed earlier, the

Lokayukta had issued an endorsement to the effect that there are no

laches on the part of any Government servant and that it appears that no

loss has been caused to the State. It is thereafter the appeal is filed with

an application for condonation of delay.”

LEGAL ADVISORS OF GOVERNMENT GOT BLOW

IN THIS CASE

Sridhara babu. N


KarLJ 439 JUSTICE N KUMAR OBSEERVED:- “A

beginner in the legal profession would know, that against a judgment and

decree of declaration of title, an appeal lies and not a revision. This is the

type of legal advise which has been given to the Government over a period

of nearly ten years. "It is a case of salt having lost its savour". The judicial

Page 0799 process is used to acquire rights over the Government

property, a clear case of abuse of judicial process.”

GOVERNMENT FACING CHALLENGES WITH

IN/OUT IN LEGAL FIELD


KarLJ 439 JUSTICE N KUMAR OBSEERVED:-

“Karnataka being one of the progressive State in the Union of India,

Bangalore being the center of attraction to the whole world, unfortunately,

the professional legal advise given to the Government is of this nature. It is

no wonder that the value of landed property in Bangalore is more than gold

and the real estate business is the most thriving business in the city of

Bangalore. The State Legislature has to appoint a Committee to go into

this problem of grabbing of Government lands which runs to thousands of

acres involving crores of rupees. The said Committee has submitted an

interim report blaming the officials and lawyers in-charge of the case and

Sridhara babu. N

others being a privy to these illegal activities right under the nose of the

seat of power. Now that multinational companies are competing with each

other to have a foot hold in Bangalore, with the liberalization, globalization

and privatization, having its impact on all walks of life in the society, whether

the Government is capable of meeting the challenges in the field of law and

in protecting its people and its properties, with the kind of legal assistance

they have. There is no dearth for legal talent in the State. The problem is

the mind to utilise the said talent. This case should be an eye opener to the

Government. It is for them to take appropriate steps to overhaul their

revenue, and legal department, including the quality of the Advocates they

choose to represent them in Courts, if the Government is sincere in

protecting the public and its properties.”

A.U. Valiulla vs A.V. Shafiulla 2003 (4) KarLJ 507 It is no doubt true

that the Court should be liberal in the matter of condoning the delay in

preferring the appeal especially when no mala fides are attributed. But

then, the delay is inexcusable unless sufficient cause is shown. It is not the

law when an application seeking condonation of delay is filed by a party,

this Court must invariably condone the delay, irrespective of whether

sufficient cause is shown or not. Section 5 of the limitation Act gives the

Court a discretion which in respect of jurisdiction is to be exercised in the

way in which judicial power and discretion ought to be exercised upon

Sridhara babu. N

principles which are well-understood and the words "sufficient cause"

receiving a liberal construction so as to advance substantial justice when no

negligence nor inaction nor want of bona fide is imputable to the appellant.

In the instant case, though the appellant was aware of the judgment and

decree passed by the first Appellate Court in the month of March 2002,

he did not file the appeal within the prescribed time. The explanation

offered to condone the delay is neither convincing nor acceptable and more

so when the same is not supported by any material on record. On the face

of it, there appears to be no sufficient cause to condone the delay.

CONDONATION OF DELAY

STATE (NCT OF DELHI) VS AHMED JAAN.

AUGUST 12, 2008

Limitation Act, 1963: s. 5 - Condonation of delay - "sufficient cause" –

HELD: It is sufficiency of the cause which counts, and not length of delay

- Expression "sufficient cause" should receive a liberal construction - As

regards delay on the part of State, certain amount of latitude is not

impermissible - Expression "sufficient cause" should be considered with

Sridhara babu. N

pragmatism in justice oriented approach rather than technical detection of

sufficient cause for explaining every day's delay - Matter remitted to High

Court to decide the criminal revision on merits - Suggestions made to

prevent delay in State litigation - Administration of justice –

Allowing the appeal, the Supreme Court HELD:

The proof by sufficient cause is a condition precedent for exercise of the

extraordinary discretion vested in the court. What counts is not the length

of the delay but the sufficiency of the cause; and shortness of the delay is

one of the circumstances to be taken into account in using the discretion.

What constitutes sufficient cause cannot be laid down by hard and fast

rules. The expression "sufficient cause" should receive a liberal

construction.

No separate standards to determine the cause laid by the State vis-a-vis

private litigant could be laid to prove strict standards of sufficient cause.

Equally, the State cannot be put on the same footing as an individual.

The individual would always be quick in taking the decision whether he

would pursue the remedy by way of an appeal or application since he is a

person legally injured while State is an impersonal machinery working

through its officers or servants. It is axiomatic that decisions are taken by

Sridhara babu. N

officers/agencies proverbially at slow pace encumbered with procedural

red-tape in decision making process. Therefore, certain amount of latitude

is not impermissible. If the appeals brought by the State are lost for such

default no person is individually affected but what in the ultimate analysis

suffers, is public interest. The expression "sufficient cause" should,

therefore, be considered with pragmatism in justice-oriented approach

rather than the technical detection of sufficient cause for explaining every

day's delay. The factors which are peculiar to and characteristic of the

functioning of the governmental conditions would be cognizant to and

require adoption of pragmatic approach in justice-oriented process. The

court should decide the matters on merits unless the case is hopelessly

without merit.

The Government at appropriate level should constitute legal cells to

examine the cases whether any legal principles are involved for decision by

the courts or whether cases require adjustment; and should authorise the

officers to take a decision or give appropriate permission for settlement. In

the event of decision to file appeal, needed prompt action should be

pursued by the officer concerned and he should be made personally

responsible for lapses, if any.

Sridhara babu. N

In N. Balakrishnan v. M. Krishnamurthy (AIR 1998 SC 3222) it was held

by Supreme Court that Section 5 is to be construed liberally so as to do

substantial justice to the parties. The provision contemplates that the

Court has to go in the position of the person concerned and to find out if

the delay can be said to have been resulted from the cause which he had


circumstances of the case is sufficient. Although no special indulgence can

be shown to the Government which, in similar circumstances, is not shown to



wheels.

What constitutes sufficient cause cannot be laid down by hard and fast

rules. In New India Insurance Co. Ltd. v. Shanti Misra (1975 (2) SCC

840) Supreme Court held that discretion given by Section 5 should not

be defined or crystallised so as to convert a discretionary matter into a rigid

rule of law. The expression "sufficient cause" should receive a liberal

construction. In Brij Indar Singh v. Kanshi Ram (ILR (1918) 45 Cal 94

(PC) it was observed that true guide for a court to exercise the discretion

under Section 5 is whether the appellant acted with reasonable diligence in

prosecuting the appeal. In Shakuntala Devi Jain v. Kuntal Kumari (AIR

1969 SC 575) a Bench of three Judges had held that unless want of

Sridhara babu. N

bona fides of such inaction or negligence as would deprive a party of the

protection of Section 5 is proved, the application must not be thrown out

or any delay cannot be refused to be condoned.

In Concord of India Insurance Co. Ltd. v. Nirmala Devi (1979 (4) SCC

365) which is a case of negligence of the counsel which misled a litigant into

delayed pursuit of his remedy, the default in delay was condoned. In Lala

Mata Din v. A. Narayanan (1969 (2) SCC 770), Supreme Court had

held that there is no general proposition that mistake of counsel by itself is

always sufficient cause for condonation of delay. It is always a question

whether the mistake was bona fide or was merely a device to cover an

ulterior purpose. In that case it was held that the mistake committed by the

counsel was bona fide and it was not tainted by any mala fide motive. In

State of Kerala v. E. K. Kuriyipe (1981 Supp SCC 72), it was held

that whether or not there is sufficient cause for condonation of delay is a

question of fact dependant upon the facts and circumstances of the

particular case. In Milavi Devi v. Dina Nath (1982 (3) SCC 366), it was

held that the appellant had sufficient cause for not filing the appeal within

the period of limitation.

In O. P. Kathpalia v. Lakhmir Singh (1984 (4) SCC 66), a Bench of

three Judges had held that if the refusal to condone the delay results in

Sridhara babu. N

grave miscarriage of justice, it would be a ground to condone the delay.

Delay was accordingly condoned. In Collector Land Acquisition v. Katiji

(1987 (2) SCC 107), a Bench of two Judges considered the question of



by disposing of matters on merits. The expression "sufficient cause" is

adequately elastic to enable the court to apply the law in a meaningful

manner which subserves the ends of justice - that being the life-purpose for

the existence of the institution 9 of courts. It is common knowledge that

Supreme Court has been making a justifiably liberal approach in matters

instituted in this Court. But the message does not appear to have











Judiciary is not respected on account of its power to legalise injustice on

Sridhara babu. N










accordingly condoned.

In G. Ramegowda, Major v. Spl. Land Acquisition Officer (1988 (2)

SCC 142), it was held that no general principle saving the party from all

mistakes of its counsel could be laid. The expression "sufficient cause"

must receive a liberal construction so as to advance substantial justice and

generally delays in preferring the appeals are required to be condoned in

the interest of justice where no gross negligence or deliberate inaction or

lack of bona fides is imputable to the party seeking condonation of delay.

In litigations to which Government is a party, there is yet another aspect

which, perhaps, cannot be ignored. If appeals brought by Government are

lost for such defaults, no person is individually affected, but what, in the

Sridhara babu. N

ultimate analysis, suffers is public interest. The decisions of Government

are collective and institutional decisions and do not share the

characteristics of decisions of private individuals. The law of limitation is,

no doubt, the same for a private citizen as for governmental authorities.

Government, like any other litigant must take responsibility for the acts,

omissions of its officers. But a somewhat different complexion is imparted


was shown to have suffered owing to acts of fraud or bad faith on the part

of its officers or agents and where the officers were clearly at cross-

purposes with it. It was, therefore, held that in assessing what constitutes

sufficient cause for purposes of Section 5, it might, perhaps, be somewhat

unrealistic to exclude from the consideration that go into the judicial verdict,

these factors which are peculiar to and characteristic of the functioning of

the Government. Government decisions are proverbially slow encumbered,

as they are, by a considerable degree of procedural red-tape in the process

of their making. A certain amount of latitude is, therefore, not impermissible.

It is rightly said that those who bear responsibility of Government must

have "a little play at the joints". Due recognition of these limitations on

governmental functioning - of course, within reasonable limits - is necessary

if the judicial approach is not to be rendered unrealistic. It would, perhaps,

be unfair and unrealistic to put Government and private parties on the

same footing in all respects in such matters. Implicit in the very nature of

Sridhara babu. N

Governmental functioning is procedural delay incidental to the decision-

making process. The delay of over one year was accordingly condoned.

The expression "sufficient cause" should, therefore, be considered with



peculiar to and characteristic of the functioning of the governmental


approach in justice-oriented process. The court should decide the matters

on merits unless the case is hopelessly without merit. No separate




the cases whether any legal principles are involved for decision by the

courts or whether cases require adjustment and should authorise the

officers to take a decision or give appropriate permission for settlement. In

the event of decision to file appeal needed prompt action should be

pursued by the officer responsible to file the appeal and he should be made

personally responsible for lapses, if any. Equally, the State cannot be put

on the same footing as an individual. The individual would always be quick

in taking the decision whether he would pursue the remedy by way of an

Sridhara babu. N

appeal or application since he is a person legally injured while State is an

impersonal machinery working through its officers or servants. It was noted

that adoption of strict standard of proof sometimes fail to protract public

justice, and it would result in public mischief by skilful management of delay

in the process of filing an appeal.

DELAY IN FILING WS AFTER 90 DAYS CANNOT BE

CONDONED ROUTINELY – ONLY IN RARE AND

EXCEPTIONAL CASES 2009 SC

THE HONBLE JUSTICE S.B. Sinha, & THE HONBLE

JUSTICE Cyriac Joseph in the case of MOHAMMED

YUSUF VS FAIJ MOHAMMAD & ORS. Reported in AIR

2009 SC 1741 A dispensation that makes Order 8 Rule 1 directory,

leaving it to the courts to extend the time indiscriminately would tend to

defeat the object sought to be achieved by the amendments to the Code.

It is, therefore, necessary to emphasise that the grant of extension of time

beyond 30 days is not automatic, that it should be exercised with caution

and for adequate reasons and that an extension of time beyond 90 days of

the service of summons must be granted only based on a clear satisfaction

of the justification for granting such extension, the court being conscious of

Sridhara babu. N

the fact that even the power of the court for extension inhering in Section

148 of the Code, has also been restricted by the legislature. It would be

proper to encourage the belief in litigants that the imperative of Order 8

Rule 1 must be adhered to and that only in rare and exceptional case, will

the breach thereof will be condoned. Such an approach by courts alone

can carry forward the legislative intent of avoiding delays or at least in

curtailing the delays in the disposal of suits filed in courts.

Supreme Court, in Smt. Rani Kusum v. Smt. Kanchan Devi and Ors.

reported in (2005) 5 SCC 705, Order VIII, Rule 1 after the amendment

casts an obligation on the defendant to file the written statement within 30

days from the date of service of summons on him and within the extended

time falling within 90 days. The provision does not deal with the power of

the court and also does not specifically take away the power of the court to

take the written statement on record though filed beyond the time as

provided for. Further, the nature of the provision contained in Order VIII,

Rule 1 is procedural. It is not a part of the substantive law. Substituted

Order VIII, Rule 1 intends to curb the mischief of unscrupulous

defendants adopting dilatory tactics, delaying the disposal of cases

causing inconvenience to the plaintiffs and petitioners approaching the

court for quick relief and also to the serious inconvenience of the court

Sridhara babu. N

faced with frequent prayers for adjournments. The object is to expedite

the hearing and not to scuttle the same. While justice delayed may amount

to justice denied, justice hurried may in some cases amount to justice buried.

…All the rules of procedure are the handmaid of justice. The language

employed by the draftsman of processual law may be liberal or stringent,

but the fact remains that the object of prescribing procedure is to advance

the cause of justice. In an adversarial system, no party should ordinarily be

denied the opportunity of participating in the process of justice

dispensation. Unless compelled by express and specific language of the

Statute, the provisions of the CPC or any other procedural enactment

ought not to be construed in a manner which would leave the court helpless

to meet extraordinary situations in the ends of justice….. The mortality of

justice at the hands of law troubles a Judge's conscience and points an

angry interrogation at the law reformer. The procedural law so dominates

in certain systems as to overpower substantive rights and substantial

justice. The humanist rule that procedure should be the handmaid, not the

mistress, of legal justice compels consideration of vesting a residuary power

in judges to act ex debito justiciae where the tragic sequel otherwise would

be wholly inequitable. - Justice is the goal of jurisprudence - processual, as

much as substantive. ………… No person has a vested right in any course of

procedure. He has only the right of prosecution or defence in the manner

for the time being by or for the Court in which the case is pending, and if,

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by an Act of Parliament the mode of procedure is altered, he has no other

right than to proceed according to the altered mode. ………………….. A

procedural law should not ordinarily be construed as mandatory, the

procedural law is always subservient to and is in aid to justice. Any

interpretation which eludes or frustrates the recipient of justice is not to be

followed. ………… Procedural law is not to be a tyrant but a servant, not an

obstruction but an aid to justice. Procedural prescriptions are the handmaid

and not the mistress, a lubricant, not a resistant in the administration of

justice. ………… It is also to be noted that though the power of the Court

under the proviso appended to Rule 1 of Order VIII is circumscribed by

the words - "shall not be later than ninety days" but the consequences

flowing from non- extension of time are not specifically provided though

they may be read by necessary implication. Merely, because a provision of

law is couched in a negative language implying mandatory character, the

same is not without exceptions. The courts, when called upon to interpret

the nature of the provision, may, keeping in view the entire context in which

the provision came to be enacted, hold the same to be directory though

worded in the negative form. …. Challenge to the Constitutional validity of

the Amendment Act and 1999 Amendment Act was rejected by Court

in Salem Advocate Bar Association, Tamil Nadu v. Union of India (JT

2002 (9) SC 175). However to work out modalities in respect of certain

provisions a Committee was constituted. After receipt of Committee's

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report the matter was considered by a three-Judge Bench in Salem

Advocate Bar Association, Tamil Nadu v. Union of India (JT 2005 (6)

SC 486). As regards Order VIII Rule 1 Committee's report is as follows:

"The question is whether the Court has any power or jurisdiction to

extend the period beyond 90 days. The maximum period of 90 days to file

written statement has been provided but the consequences on failure to file

written statement within the said period have not been provided for in

Order VIII Rule 1. The point for consideration is whether the provision

providing for maximum period of ninety days is mandatory and, therefore,

the Court is altogether powerless to extend the time even in an

exceptionally hard case. It has been common practice for the parties to take

long adjournments for filing written statements. The legislature with a view

to curb this practice and to avoid unnecessary delay and adjournments, has

provided for the maximum period within which the written statement is

required to be filed. The mandatory or directory nature of Order VIII Rule

1 shall have to be determined by having regard to the object sought to be

achieved by the amendment. It is, thus, necessary to find out the intention

of the legislature. The consequences which may follow and whether the

same were intended by the legislature have also to be kept in view.

In Raza Buland Sugar Co. Ltd., Rampur v. The Municipal Board,

Rampur [AIR 1965 SC 895], a Constitution Bench of the Court held

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that the question whether a particular provision is mandatory or directory

cannot be resolved by laying down any general rule and it would depend

upon the facts of each case and for that purpose the object of the statute

in making out the provision is the determining factor. The purpose for which

the provision has been made and its nature, the intention of the legislature

in making the provision, the serious general inconvenience or injustice to

persons resulting from whether the provision is read one way or the other,

the relation of the particular provision to other provisions dealing with the

same subject and other considerations which may arise on the facts of a

particular case including the language of the provision, have all to be taken

into account in arriving at the conclusion whether a particular provision is

mandatory or directory.

In Sangram Singh v. Election Tribunal Kotah & Anr. [AIR 1955 SC

425], considering the provisions of the Code dealing with the trial of the

suits, it was opined that: "Now a code of procedure must be regarded as

such. It is procedure, something designed to facilitate justice and further its

ends: not a Penal enactment for punishment and penalties; not a thing

designed to trip people up. Too technical construction of sections that

leaves no room for reasonable elasticity of interpretation should therefore

be guarded against (provided always that justice is done to both sides) lest

the very means designed for the furtherance of justice be used to frustrate

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it. Next, there must be ever present to the mind the fact that our laws of

procedure are grounded on a principle of natural justice which requires that

men should not be condemned unheard, that decisions should not be

reached behind their backs, that proceedings that affect their lives and

property should not continue in their absence and that they should not be

precluded from participating in them. Of course, there must be exceptions

and where they are clearly defined they must be given effect to. But taken

by and large, and subject to that proviso, our laws of procedure should be

construed, wherever that is reasonably possible, in the light of that

principle. "

In Topline Shoes Ltd. v. Corporation Bank [(2002) 6 SCC 33], the

question for consideration was whether the State Consumer Disputes

Redressal Commission could grant time to the respondent to file reply

beyond total period of 45 days in view of Section 13(2) of the Consumer

Protection Act, 1986. It was held that the intention to provide time frame

to file reply is really made to expedite the hearing of such matters and avoid

unnecessary adjournments. It was noticed that no penal consequences had

been prescribed if the reply is not filed in the prescribed time. The

provision was held to be directory. It was observed that the provision is

more by way of procedure to achieve the object of speedy disposal of the

case. The use of the word 'shall' in Order VIII Rule 1 by itself is not

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conclusive to determine whether the provision is mandatory or directory.

We have to ascertain the object which is required to be served by this

provision and its design and context in which it is enacted. The use of the

word 'shall' is ordinarily indicative of mandatory nature of the provision but

having regard to the context in which it is used or having regard to the

intention of the legislation, the same can be construed as directory. The

rule in question has to advance the cause of justice and not to defeat it.

The rules of procedure are made to advance the cause of justice and not

to defeat it. Construction of the rule or procedure which promotes justice

and prevents miscarriage has to be preferred. The rules or procedure are

handmaid of justice and not its mistress. In the present context, the strict

interpretation would defeat justice. In construing this provision, support can

also be had from Order VIII Rule 10 which provides that where any party

from whom a written statement is required under Rule 1 or Rule 9, fails to

present the same within the time permitted or fixed by the Court, the

Court shall pronounce judgment against him, or make such other order in

relation to the suit as it thinks fit. On failure to file written statement under

this provision, the Court has been given the discretion either to pronounce

judgment against the defendant or make such other order in relation to suit

as it thinks fit. In the context of the provision, despite use of the word 'shall',

the court has been given the discretion to pronounce or not to pronounce

the judgment against the defendant even if written statement is not filed

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and instead pass such order as it may think fit in relation to the suit. In

construing the provision of Order VIII Rule 1 and Rule 10, the doctrine of

harmonious construction is required to be applied. The effect would be

that under Rule 10 of Order VIII, the court in its discretion would have

power to allow the defendant to file written statement even after expiry of

period of 90 days provided in Order VIII Rule 1. There is no restriction in

Order VIII Rule 10 that after expiry of ninety days, further time cannot be

granted. The Court has wide power to 'make such order in relation to the

suit as it thinks fit'. Clearly, therefore, the provision of Order VIII Rule 1

providing for upper limit of 90 days to file written statement is directory.

Having said so, we wish to make it clear that the order extending time to file

written statement cannot be made in routine. The time can be extended

only in exceptionally hard cases. While extending time, it has to be borne in

mind that the legislature has fixed the upper time limit of 90 days. The

discretion of the Court to extend the time shall not be so frequently and

routinely exercised so as to nullify the period fixed by Order VIII Rule 1."

Court in Kailash v. Nanhku and Ors. (2005 (4) SCC 480) "(iv) the

purpose of providing the time schedule for filing the written statement

under Order VIII Rule 1 CPC is to expedite and not to scuttle the

hearing. The provision spells out a disability on the defendant. It does not

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impose an embargo on the power of the Court to extend the time. Though

the language of the proviso to Rule 1 Order VIII CPC is couched in

negative form, it does not specify any penal consequences flowing from the

non-compliance. The provision being in the domain of the procedural law, it

has to be held directory and not mandatory. The power of the Court to

extend time for filing the written statement beyond the time schedule

provided by Order VIII Rule 1 CPC is not completely taken away. (v)

Though Order VIII Rule 1 CPC is a part of procedural law and hence

directory, keeping in view the need for expeditious trial of civil cases which

persuaded Parliament to enact the provision in its present form, it is held

that ordinarily the time schedule contained in the provision is to be followed

as a rule and departure therefrom would be by way of exception. A prayer

for extension of time made by the defendant shall not be granted just as a

matter of routine and merely for the asking, more so when the period of 90

days has expired. Extension of time may be allowed by way of an

exception, for reasons to be assigned by the defendant and also be placed

on record in writing, howsoever briefly, by the court on its being satisfied.

Extension of time may be allowed if it is needed to be given for

circumstances which are exceptional, occasioned by reasons beyond the

control of the defendant and grave injustice would be occasioned if the time

was not extended. Costs may be imposed and affidavit or documents in

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support of the grounds pleaded by the defendant for extension of time may

be demanded, depending on the facts and circumstances of a given case."

Honourable Apex Court in C.N.Ramappa Gowda v.

C.C.Chandregowda reported in (2012) 5 Supreme Court Cases 265.

Certain excerpts from it, would run thus: “25. We find sufficient assistance

from the apt observations of this Court extracted hereinabove which has

held that the effect of non-filing of the written statement and proceeding to

try the suit is clearly to expedite the disposal of the suit and is not penal in

nature wherein the defendant has to be penalised for non-filing of the

written statement by trying the suit in a mechanical manner by passing a

decree. We wish to reiterate that in a case where written statement has not

been filed, the court should be a little more cautious in proceeding under

Order 8 Rule 10 CPC and before passing a judgment, it must ensure that

even if the facts set out in the plaint are treated to have been admitted, a

judgment and decree could not possibly be passed without requiring him to

prove the facts pleaded in the plaint. ………………..29. It is a well-

acknowledged legal dictum that assertion is no proof and hence, the burden

lay on the plaintiff to prove that the property had not been partitioned in

the past even if there was no written statement to the contrary or any

evidence of rebuttal. The trial Court in our view clearly adopted an

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erroneous approach by inferring that merely because there was no

evidence of denial or rebuttal, the plaintiff's case could be held to have

been proved. The trial court, therefore, while accepting the plea of the

appellant-plaintiff ought to have recorded reasons even if it were based on

ex parte evidence that the plaintiff had succeeded in proving the jointness

of the suit property on the basis of which a decree of partition could be

passed in his favour.”

CONCLUSION ON DELAY IN WS FILING:- The provision

of Order 8 Rule 1 of the Code of Civil Procedure, 1908 as amended by

the amending Acts of 1999 and 2002 has now been sufficiently

expounded by the Supreme Court by holding that the said provision of

Order 8 Rule 1 is directory and not mandatory. The Civil Procedure

Code is a procedural code for the conduct of the suit and the same has

been held to be a handmaid of justice. One of the first judgments on this

aspect holding the provision of Order 8 Rule 1 to be directory was the

case of Kailash Vs. Nankhu 2005 (4) SCC 480. The ratio of the

decision in the case of Kailash has also thereafter been repeatedly

followed by the Supreme Court in various other judgments including Rani

Kusum (Smt.) Vs. Kanchan Devi (Smt.) and others (2005) 6 SCC 705,

Mr. Shaikh Salim Haji Abdul Khayumsab Vs. Mr. Kumar & Ors. 2006

(1) SCC 46 and R.N.Jadi & Brothers & Ors. Vs. Subhashchandra

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2007 (6) SCC 420. Of course, the provision of Order 8 Rule 1 is not to

be so liberally interpreted so as to allow gross delays and negligence on the

part of the defendant in filing the written statement. The facts of each case

therefore have to be seen as to whether there is gross delay or negligence

so as to disentitle the defendant for extension of time for filing of the

written statement.

WRITTEN STATEMENT CAN BE ALLOWED

AFTER 90 DAYS

The Apex Court has held that time limit of 90 days for filing written

statement cannot be considered to be so sacrosanct and mandatory that

Court cannot subsequently extend the time limit vide 2005 (6) SCC

344 (Salem Advocate Bar Association vs. Union of India), 2008 (17)

SCC 117 (Sambhaji vs. Gangabai) and 2008 (11) SCC 769 (Zolba

vs. Keshao).

In Salem Advocate Bar Association vs. Union of India 2005 (6) SCC

344 it has been held that the provisions in CPC including the proviso to

Order 8 Rule 1 are not mandatory but directory. The delay can be

condoned and the written statement can be accepted within even after the

expiry of 90 days from the date of service of summons in exceptionally hard

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cases. The Three Judge Bench of the Apex Court in terms observed in

the Salem case that the rules of procedure are made to advance the cause

of justice and not to defeat it. Construction of the rule or procedure which

promotes justice and prevents miscarriage has to be preferred. The rules

of procedure are the handmaid of justice and not its mistress.

In R.N.Jadi & Brothers vs. Subhashchandra [2007(9) Scale 202], while

interpreting Order 8 Rule 1 of the Civil Procedure Code, the Supreme

Court indicated that a legal provision, though couched in a negative

language implying mandatory character, could be declared to be of

directory in nature, keeping in view the entire context, in which the provision

came to be enacted.

Again in Zolba vs. Keshao 2008 (11) SCC 769 the Apex Court in

terms held that in an adversarial system, no party should ordinarily be

denied opportunity of participating in a process of justice dispensation.

Therefore, unless compelled by express and specific language of the

statute, any procedural enactment should not be construed in a manner,

which would leave the Court helpless to meet extraordinary situations in

the ends of justice.

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IMPORTANCE OF PLEADINGS IN CIVIL CASES AS

EXPLAINED WITH CITATIONS BY JUSTICE P

SATHASIVAM AND JUSTICE DR B.S. CHAUHAN

IN THE SUPREME COURT OF INDIA Decision in a case of

election matter, in Kalyan Singh Chouhan vs C.P.Joshi Decided on 24

January, 2011, Justice P. SATHASIVAM & Justice Dr. B.S.

CHAUHAN observed following principles of case law on “Importance

of pleadings” as also applicable to civil court proceedings:-

This Court in Ram Sarup Gupta (dead) by L.Rs. v. Bishun Narain Inter

College & Ors., AIR 1987 SC 1242 held as under: "It is well settled that

in the absence of pleading, evidence, if any, produced by the parties cannot

be considered. It is also equally settled that no party should be permitted

to travel beyond its pleading and that all necessary and material facts

should be pleaded by the party in support of the case set up by it. The

object and purpose of pleading is to enable the adversary party to know

the case it has to meet........ In such a case it is the duty of the court to

ascertain the substance of the pleadings to determine the question."

This Court in Bachhaj Nahar v. Nilima Mandal & Ors. , AIR 2009 SC

1103, held as under: "The object and purpose of pleadings and issues is to

ensure that the litigants come to trial with all issues clearly defined and to

prevent cases being expanded or grounds being shifted during trial. Its

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object is also to ensure that each side is fully alive to the questions that are

likely to be raised or considered so that they may have an opportunity of

placing the relevant evidence appropriate to the issues before the court for

its consideration. The object of issues is to identify from the pleadings the

questions or points required to be decided by the courts so as to enable

parties to let in evidence thereon. When the facts necessary to make out a

particular claim, or to seek a particular relief, are not found in the plaint, the

court cannot focus the attention of the parties, or its own attention on that

claim or relief, by framing an appropriate issue........ Thus it is said that no

amount of evidence, on a plea that is not put forward in the pleadings, can

be looked into to grant any relief. The jurisdiction to grant relief in a civil

suit necessarily depends on the pleadings, prayer, court fee paid, evidence

let in, etc."

In J.K. Iron & Steel Co. Ltd, Kanpur v. The Iron and Steel Mazdoor

Union, Kanpur, AIR 1956 SC 231, this Court observed: "It is not open

to the Tribunals to fly off at a tangent and, disregarding the pleadings, to

reach any conclusions that they think are just and proper."

Order XIV Rule 1 CPC reads: "Issues arise when a material proposition

of fact or law is affirmed by the party and denied by the other." Therefore,

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it is neither desirable nor required for the court to frame an issue not arising

on the pleadings. The Court should not decide a suit on a matter/point on

which no issue has been framed. (Vide: Raja Bommadevara Venkata

Narasimha Naidu & Anr. v. Raja Bommadevara Bhashya Karlu Naidu &

Ors., (1902) 29 Ind. App. 76 (PC); Sita Ram v. Radha Bai & Ors., AIR

1968 SC 535; Gappulal v. Thakurji Shriji Dwarkadheeshji & Anr., AIR

1969 SC 1291; and Biswanath Agarwalla v. Sabitri Bera, (2009) 15

SCC 693).

The object of framing issues is to ascertain/shorten the area of dispute

and pinpoint the points required to be determined by the court. The issues

are framed so that no party at the trial is taken by surprise. It is the issues

fixed and not the pleadings that guide the parties in the matter of adducing

evidence.

In Kashi Nath (Dead) through L.Rs. v. Jaganath, (2003) 8 SCC 740,

this Court held that where the evidence is not in line with the pleadings and

is at variance with it, the said evidence cannot be looked into or relied upon.

While deciding the said case, this Court placed a very heavy reliance on

the judgment of the Privy Council in Siddik Mohd. Shah v. Saran, AIR

1930 PC 57.

There may be an exceptional case wherein the parties proceed to trial fully

knowing the rival case and lead all the evidence not only in support of their

contentions but in refutation thereof by the other side. In such an

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eventuality, absence of an issue would not be fatal and it would not be

permissible for a party to submit that there has been a mis-trial and the

proceedings stood vitiated. (vide: Nagubai Ammal & Ors. v. B. Shama

Rao & Ors., AIR 1956 SC 593; Nedunuri Kameswaramma v. Sampati

Subba Rao, AIR 1963 SC 884; Kunju Kesavan v. M.M. Philip & Ors.,

AIR 1964 SC 164; Kali Prasad Agarwalla (dead) by L.Rs. & Ors. v.

M/s. Bharat Coking Coal Ltd. & Ors., AIR 1989 SC 1530; Sayed

Akhtar v. Abdul Ahad, (2003) (7) SCC 52; and Bhuwan Singh v.

Oriental Insurance Co. Ltd., AIR 2009 SC 2177).

HOW PLEADING FALSELY IN THE COURT

AMOUNTS TO CONTEMPT AND PERJURY

EXPLAINED BY SUPREME COURT

R.S. Sujatha vs State Of Karnataka & Ors. Decided by Supreme

Court on 29 November, 2010 Bench: Justice P Sathasivam, Justice B

Chauhan

FACTS OF THE CASE:- State of Karnataka initiated

disciplinary proceedings against the appellant, an Indian Administrative

Service Officer of Karnataka cadre, on the allegation that she had

committed certain irregularities in the allotment of wheat. The said regular

enquiry stood initiated on the basis of the preliminary enquiry report. The

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appellant filed O.A. before the Tribunal on for quashing the Articles of

charge and subsequent proceedings on diverse grounds. In the said

Original Application, the appellant had made a specific averment that the

charge memo was received by her only on 19.6.2002, as the copy of the

same was furnished to her by the 3rd respondent i.e. the Enquiry Officer.

Therefore, it had been contended by the appellant that she had

approached the Tribunal within limitation. However, taking abundant

caution, she had also filed an application for condonation of delay. The

reply to the said application was filed by the respondents therein, wherein it

was contended that the order dated 30.11.1999 had been issued to the

appellant on 2.12.1999 by Registered Post with AD. The Tribunal

instead of proceeding with the matter on merit or deciding the issue of

limitation, passed an order stating that the appellant had made a false

statement in the O.A. regarding limitation which was intentional and

deliberate. Therefore, prima facie, the Tribunal was of the view that the

appellant had committed criminal contempt and a show cause notice was

issued to the appellant calling upon her "to appear in person before the

Tribunal to answer the said show cause notice on which day the matter

would be listed for hearing. The appellant not only appeared in response

to the said notice personally, but submitted a reply to the show cause

notice contending that she had not made any false statement for the

purpose of securing the order of condonation of delay and in fact the

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charge memo dated 30.11.1999 had been served upon her first time on

19.6.2002. She also made a request to summon certain government

records to substantiate her case. The Tribunal directed the respondent

authorities to produce the documents, i.e. Inward Register, Postal

Acknowledge Due and original letter dated 23.12.1999 and other relevant

documents, if any, which would have bearing on the matter by the next date,

though learned counsel for the respondent authorities did not produce any

of the required documents, but he produced the photocopies of letter

dated 23.12.1999 and the Inward Register. The Tribunal adjourned the

case and passed the impugned order dated holding that the appellant was

guilty of perjury, as well as of criminal contempt of the Tribunal and

imposed the punishment of imprisonment till rising of the court and a fine of

Rs.2,000/-. Being aggrieved, the appellant approached the High Court

by filing a writ petition which was ultimately dismissed, observing that the

High Court had no jurisdiction to entertain the matter placing reliance on

the judgment of this Court in T. Sudhakar Prasad v. Govt. of A.P. &

Ors., (2001) 1 SCC 516, wherein it had been held that against the order

under the Contempt of Court Act, 1971, passed by the Tribunal, the

party aggrieved has to approach Supreme Court. Hence, this appeal.

The learned Tribunal proceeded on the basis that Supreme Court in

Chandra Shashi v. Anil Kumar Verma, (1995) 1 SCC 421, held that

nobody should be permitted to indulge in immoral acts like perjury,

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prevarication and motivated falsehoods in the judicial proceedings and if

someone does so, it must be dealt with appropriately. In case the recourse

to a false plea is taken with an oblique motive, it would definitely hinder,

hamper or impede the flow of justice and prevent the courts from performing

their legal duties.

ABATEMENT AND DELAY CONDONATION

Code of Civil Procedure, 1908: Or. 22, rr. 4,10A and 11 - Application

for setting aside abatement of second appeal - Delay in filing - `Sufficient

cause' with respect to delay. HELD: Lack of diligence or negligence can

be attributed to an appellant only when he is aware of the death and fails to

take steps to bring the legal representatives on record - In the instant case,

second appeal was admitted in 1993 but hearing of dates were not fixed

periodically - Neither counsel for deceased respondent in High Court nor

her legal representatives reported her death to the High Court - No

notice of death given to appellant - There is no material to contradict claim

of appellant that it was unaware of death of the respondent - Delay

condoned - Abatement set aside - Legal representatives of deceased

respondent permitted to be brought on record –

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Principles applicable in considering applications for setting aside

abatement summarized as follows:

(i) The words "sufficient cause for not making the application within the

period of limitation" should be understood and applied in a reasonable,

pragmatic, practical and liberal manner, depending upon the facts and

circumstances of the case, and the type of case. The words `sufficient

cause' in section 5 of Limitation Act should receive a liberal construction

so as to advance substantial justice, when the delay is not on account of

any dilatory tactics, want of bonafides, deliberate inaction or negligence on

the part of the appellant.

(ii) In considering the reasons for condonation of delay, the courts are more

liberal with reference to applications for setting aside abatement, than

other cases. While the court will have to keep in view that a valuable right

accrues to the legal representatives of the deceased respondent when the

appeal abates, it will not punish an appellant with foreclosure of the appeal,

for unintended lapses. The courts tend to set aside abatement and decide

the matter on merits, rather than terminate the appeal on the ground of

abatement. (iii) The decisive factor in condonation of delay, is not the

length of delay, but sufficiency of a satisfactory explanation.

(iv) The extent or degree of leniency to be shown by a court depends on

the nature of application and facts and circumstances of the case. For

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example, courts view delays in making applications in a pending appeal more

leniently than delays in the institution of an appeal. The courts view

applications relating to lawyer's lapses more leniently than applications

relating to litigant's lapses. The classic example is the difference in

approach of courts to applications for condonation of delay in filing an

appeal and applications for condonation of delay in refiling the appeal

after rectification of defects.

(v) Want of `diligence' or `inaction' can be attributed to an appellant only

when something required to be done by him, is not done. When nothing is

required to be done, courts do not expect the appellant to be diligent.

Where an appeal is admitted by the High Court and is not expected to be

listed for final hearing for a few years, an appellant is not expected to visit

the court or his lawyer every few weeks to ascertain the position nor keep

checking whether the contesting respondent is alive. He merely awaits the

call or information from his counsel about the listing of the appeal.

If following three conditions exist, the courts will usually condone the delay

and set aside the abatement (even though the period of delay is

considerable and a valuable right might have accrued to the opposite party-

LRs of the deceased - on account of the abatement): (i) The respondent

died during the period when the appeal was pending without any hearing

dates being fixed; (ii) Neither the counsel for the deceased respondent nor

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the legal representatives of the deceased respondent reported the death

of the respondent to the court and the court has not given notice of such

death to the appellant. (iii) The appellant avers that he was unaware of the

death of the respondent and there is no material to doubt or contradict his

claim.

In N.Balakrishnan v. M.Krishnamurthy [1998 (7) SCC 123], this Court

held: "It is axiomatic that condonation of delay is a matter of discretion of

the court. Section 5 of the Limitation Act does not say that such

discretion can be exercised only if the delay is within a certain limit. Length

of delay is no matter, acceptability of the explanation is the only criterion.

Sometimes delay of the shortest range may be uncondonable due to a

want of acceptable explanation whereas in certain other cases, delay of a

very long range can be condoned as the explanation thereof is satisfactory.

Once the court accepts the explanation as sufficient, it is the result of

positive exercise of discretion and normally the superior court should not

disturb such finding, much less in revisional jurisdiction, unless the exercise

of discretion was on wholly untenable grounds or arbitrary or perverse. But

it is a different matter when the first court refuses to condone the delay. In

such cases, the superior court would be free to consider the cause shown

for the delay afresh and it is open to such superior court to come to its own

finding even untrammeled by the conclusion of the lower court. The primary

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function of a court is to adjudicate the dispute between the parties and to

advance substantial justice...... Rules of limitation are not meant to destroy

the rights of parties. They are meant to see that parties do not resort to

dilatory tactics, but seek their remedy promptly. A court knows that refusal

to condone delay would result in foreclosing a suitor from putting forth his

cause. There is no presumption that delay in approaching the court is

always deliberate. This Court has held that the words "sufficient cause"

under Section 5 of the Limitation Act should receive a liberal construction

so as to advance substantial justice. It must be remembered that in every

case of delay, there can be some lapse on the part of the litigant concerned.






the court should lean against acceptance of the explanation."

In Union of India vs. Ram Charan (Deceased) by LRs. [AIR 1964 SC

215], this Court observed thus : "The provisions of the Code are with a

view to advance the cause of justice. Of course, the Court, in considering

whether the appellant has established sufficient cause for his not

continuing the suit in time or for not applying for the setting aside of the

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abatement within time, need not be over-strict in expecting such proof of

the suggested cause as it would accept for holding certain fact established,

both because the question does not relate to the merits of the dispute

between the parties and because if the abatement is set aside, the merits of

the dispute can be determined while, if the abatement is not set aside, the

appellant is deprived of his proving his claim on account of his culpable

negligence or lack of vigilance. It is true that it is no duty of the appellant to

make regular enquiries from time to time about the health or existing of the

respondent."

In Ram Nath Sao vs. Gobardhan Sao [2002 (3) SCC 195] this Court

observed thus : "12. Thus it becomes plain that the expression "sufficient

cause" within the meaning of Section 5 of the Act or Order 22 Rule 9 of

the Code or any other similar provision should receive a liberal construction

so as to advance substantial justice when no negligence or inaction or want

of bona fides is imputable to a party. In a particular case whether

explanation furnished would constitute "sufficient cause" or not will be

dependent upon facts of each case. There cannot be a straitjacket formula

for accepting or rejecting explanation furnished for the delay caused in

taking steps. But one thing is clear that the courts should not proceed with

the tendency of finding fault with the cause shown and reject the petition

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by a slipshod order in over-jubilation of disposal drive. Acceptance of

explanation furnished should be the rule and refusal, an exception, more so

when no negligence or inaction or want of bona fides can be imputed to the

defaulting party. On the other hand, while considering the matter the

courts should not lose sight of the fact that by not taking steps within the

time prescribed a valuable right has accrued to the other party which should

not be lightly defeated by condoning delay in a routine-like manner.

However, by taking a pedantic and hypertechnical view of the matter the

explanation furnished should not be rejected when stakes are high and/or

arguable points of facts and law are involved in the case, causing enormous

loss and irreparable injury to the party against whom the lis terminates,

either by default or inaction and defeating valuable right of such a party to

have the decision on merit. While considering the matter, courts have to

strike a balance between resultant effect of the order it is going to pass

upon the parties either way."

In Sital Prasad Saxena (dead) by LRs. v. Union of India & Ors. [1985 (1)

SCC 163], this Court stated : "...once an appeal is pending in the High

Court, the heirs are not expected to keep a constant watch on the

continued existence of parties to the appeal before the High Court which

has a seat far away from where parties in rural areas may be residing. And

in a traditional rural family the father may not have informed his son about

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the litigation in which he was involved and was a party. Let it be recalled

what has been said umpteen times that rules of procedure are designed to

advance justice and should be so interpreted as not to make them penal

statutes for punishing erring parties."

In State of Madhya Pradesh vs. S. S. Akolkar - 1996 (2) SCC 568,

this Court held : "Under Order 22 Rule 10A, it is the duty of the counsel,

on coming to know of the death of a party, to inform it to the Court and the

Court shall give notice to the other party of the death. By necessary

implication delay for substitution of legal representatives begins to run from

the date of knowledge. It is settled law that the consideration for

condonation of delay Under Section 5 of Limitation Act and setting

aside of the abatement under Order 22 are entirely distinct and different.

The Court always liberally considers the latter, though in some cases, the

Court may refuse to condone the delay Under Section 5 in filing the

appeals. After the appeal has been filed and is pending, Government is not

expected to keep watch whether the contesting respondent is alive or

passed away. After the matter was brought to the notice of the counsel for

the State, steps were taken even thereafter after due verification belated

application came to be filed. It is true that Section 5 of Limitation Act

would be applicable and delay is required to be explained. The delay in

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official business requires its broach and approach from public justice

perspective."

WRITTEN STATEMENT AND DELAY IN FILING

AIR 2005 SC 3353, SALEM ADVOCATE BAR

ASSOCIATION,TAMIL NADU VS UNION OF INDIA

BENCH: Y.K.SABHARWAL, D.M.DHARMADIKHARI &

TARUN CHATTERJEE

The use of the word `shall' in Order VIII Rule 1 by itself is not conclusive

to determine whether the provision is mandatory or directory. The object

which is required to be served by this provision and its design and context in

which it is enacted has to be ascertained. The use of the word `shall' is

ordinarily indicative of the mandatory nature of the provision but having

regard to the context in which is used or having regard to the intention of

the legislation, the same can be construed as directory. The Rule in

question has to advance the cause of justice and not to defeat it. The rules

of procedure are made to advance the cause of justice and not to defeat it.

Construction of the rule or procedure which promotes justice and prevents

miscarriage has to be preferred. The rules or procedure are handmaid of

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justice and not its mistress. In the present context, the strict interpretation

would defeat justice.

In construing Order VIII Rule 1, support can also be had from Order VIII

Rule 10 which provides that where any party from whom a written statement

is required under Rule 1 or Rule 9, fails to present the same within the time

permitted or fixed by the Court, the Court shall pronounce judgment

against him, or make such other order in relation to the suit as it thinks fit.

On failure to file written statement under this provision, the Court has

been given the discretion either to pronounce judgment against the

defendant or make such other order in relation to suit as it thinks fit. In the

context of the provision, despite use of the word `shall', the Court has

been given the discretion to pronounce or not to pronounce the judgment

against the defendant even if written statement is not filed and instead pass

such order as it may think fit in relation to the suit. In construing the

provision of Order VIII Rule 1 and Rule 10, the doctrine of harmonious

construction is required to be applied. The effect would be that under

Rule 10 of Order VIII, the Court in its discretion would have power to

allow the defendant to file written statement even after expiry of period of

90 days provided in Order VIII Rule 1. There is no restriction in Order

VIII Rule 10 that after expiry of ninety days, further time cannot be

granted. The Court has wide power to `make such order in relation to the

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suit as it thinks fit'. Clearly, therefore, the provision of Order VIII Rule 1

providing for upper limit of 90 days to file written statement is directory.

However, it is made clear that the order extending time to file the written

statement cannot be made in routine. The time can be extended only in

exceptionally hard cases. While extending time, it has to be borne in mind

that the legislature has fixed the upper time limit of 90 days. The discretion

of the Court to extend the time shall not be so frequently and routinely

exercised so as to nullify the period fixed by Order VIII Rule 1.

W/S BEYOND 90 DAYS

2008 (15) SCALE 522 , SAMBHAJI & ORS. VS

GANGABAI & ORS.

Order 8 Rule 1 CPC after the 1999 amendment, casts an obligation on

the defendant to file the written statement within 30 days from the date of

service of summons on him and within the extended time falling within 90

days. The provision does not deal with the power of the court and also

does not specifically take away the power of the court to take the written

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statement on record though filed beyond the time as provided for. Further,

the nature of the provision contained in Order 8 Rule 1 is procedural. It is

not a part of the substantive law. Substituted Order 8 Rule 1 intends to

curb the mischief of unscrupulous defendants adopting dilatory tactics,

delaying the disposal of cases, causing inconvenience to the plaintiffs and

the petitioners approaching the court for quick relief and also the serious

inconvenience of the court faced with frequent prayers for adjournments.

The object is to expedite the hearing and not to scuttle the same. While

justice delayed may amount to justice denied, justice hurried may in some

cases amount to justice buried.

All the rules of procedure are the handmaids of justice. The language

employed by the draftsman of processual law may be liberal or stringent,

but the fact remains that the object of prescribing procedure is to advance

the cause of justice. In an adversarial system, no party should ordinarily be

denied the opportunity of participating in the process of justice

dispensation. Unless compelled by express and specific language of the

statute, the provisions of CPC or any other procedural enactment ought

not to be construed in a manner which would leave the court helpless to

meet extraordinary situations in the ends of justice. The mortality of justice

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at the hands of law troubles a Judge's conscience and points an angry

interrogation at the law reformer.

The processual law dominates in certain systems so as to overpower

substantive rights and substantial justice. The humanist rule that

procedure should be the handmaid, not the mistress, of legal justice

compels consideration of vesting a residuary power in Judges to act ex

debito justitiae where the tragic sequel otherwise would be wholly

inequitable. Justice is the goal of jurisprudence, processual, as much as

substantive. No person has a vested right in any course of procedure. He

has only the right of prosecution or defence in the manner for the time

being by or for the court in which the case is pending, and if, by an Act of

Parliament the mode of procedure is altered, he has no other right than to

proceed according to the altered mode. A procedural law should not

ordinarily be construed as mandatory, the procedural law is always

subservient to and is in aid to justice. Any interpretation which eludes or

frustrates the recipient of justice is not to be followed. Processual law is not

to be a tyrant but a servant, not an obstruction but an aid to justice.

Though the power of the Court under the proviso appended to Rule 1 of

Order 8 CPC is circumscribed by the words "shall not be later than ninety

days" but the consequences flowing from non-extension of time are not

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specifically provided for though they may be read by necessary implication.

Merely, because a provision of law is couched in a negative language

implying mandatory character, the same is not without exceptions. The

courts, when called upon to interpret the nature of the provision, may,

keeping in view the entire context in which the provision came to be enacted,

hold the same to be directory though worded in the negative form.

In the instance case, the trial court proceeded on the erroneous premises

that there was no scope to accept the written statement after 90 days. The

High Court by the impugned order held that though it had power, no case

was made out to accept the prayer. The grounds indicated by the

appellants seeking acceptance of the written statement filed belatedly,

cannot be considered to be trivial or without substance. In the case of this

nature where close relatives are litigants a liberal approach is called for.

IN RAZA BULAND SUGAR CO. LTD. V. MUNICIPAL

BOARD, RAMPUR [AIR 1965 SC 895] a Constitution Bench of

this Court held that the question whether a particular provision is

mandatory or directory cannot be resolved by laying down any general rule

and it would depend upon the facts of each case and for that purpose the

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object of the statute in making out the provision is the determining factor.

The purpose for which the provision has been made and its nature, the

intention of the legislature in making the provision, the serious general

inconvenience or injustice to persons resulting from whether the provision is

read one way or the other, the relation of the particular provision to other

provisions dealing with the same subject and other considerations which

may arise on the facts of a particular case including the language of the

provision, have all to be taken into account in arriving at the conclusion

whether a particular provision is mandatory or directory. 9 In Sangram

Singh v. Election Tribunal, Kotah [AIR 1955 SC 425] considering the

provisions of the Code dealing with the trial of suits, it was opined that:

(SCR pp. 8-9) `Now a code of procedure must be regarded as such. It is

procedure, something designed to facilitate justice and further its ends: not

a penal enactment for punishment and penalties; not a thing designed to

trip people up. Too technical a construction of sections that leaves no

room for reasonable elasticity of interpretation should therefore be

guarded against (provided always that justice is done to both sides) lest the

very means designed for the furtherance of justice be used to frustrate it.

Next, there must be ever present to the mind the fact that our laws of

procedure are grounded on a principle of natural justice which requires that

men should not be condemned unheard, that decisions should not be

reached behind their backs, that proceedings that affect their lives and

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property should not continue in their absence and that they should not be

precluded from participating in them. Of course, there must be exceptions

and where they are clearly defined they must be given effect to. But taken

by and large, and subject to that proviso, our laws of procedure should be

construed, wherever that is reasonably possible, in the light of that

principle.'

THE POSITION WAS EXAMINED IN DETAILS IN

KAILASH'S CASE (SUPRA) AND RANI KUSUM

(SMT.) V. KANCHAN DEVI (SMT.) AND OTHERS

(2005(6) SCC 705). In the facts and circumstances of the case, the

maxim of equity, namely, actus curiae neminem gravabit an act of court shall

prejudice no man, shall be applicable. This maxim is founded upon justice

and good sense which serves a safe and certain guide for the administration

of law. The other maxim is, lex non cogit ad impossibilia the law does not

compel a man to do what he cannot possibly perform. The law itself and its

administration is understood to disclaim as it does in its general aphorisms,

all intention of compelling impossibilities, and the administration of law must

adopt that general exception in the consideration of particular cases. The

applicability of the aforesaid maxims has been approved by this Court in

Raj Kumar Dey v. Tarapada Dey (1987 (4) SCC 398), Gursharan

Singh v. New Delhi Municipal Committee (1996 (2) SCC 459),

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Ohammod Gazi v. State of M.P. and others (2000(4) SCC 342) and

Shaikh Salim Haji Abdul Khayumsab v. Kumar and Ors. (2006 (1)

SCC 46).

IN SANGRAM SINGH V. ELECTION TRIBUNAL

KOTAH & ANR. [AIR 1955 SC 425], considering the provisions of

the Code dealing with the trial of the suits, it was opined that: "Now a code

of procedure must be regarded as such. It is procedure, something

designed to facilitate justice and further its ends: not a Penal enactment for

punishment and penalties; not a thing designed to trip people up. Too

technical construction of sections that leaves no room for reasonable

elasticity of interpretation should therefore be guarded against (provided

always that justice is done to both sides) lest the very means designed for

the furtherance of justice be used to frustrate it. Next, there must be ever

present to the mind the fact that our laws of procedure are grounded on a

principle of natural justice which requires that men should not be

condemned unheard, that decisions should not be reached behind their

backs, that proceedings that affect their lives and property should not

continue in their absence and that they should not be precluded from

participating in them. Of course, there must be exceptions and where they

are clearly defined they must be given effect to. But taken by and large,

Sridhara babu. N

and subject to that proviso, our laws of procedure should be construed,

wherever that is reasonably possible, in the light of that principle. "

PERUMON BHAGVATHY DEVASWOM, PERINADU

VILLAGE VS. BHARGAVI AMMA (DEAD) BY LRS &

ORS. 2008 (8) SCC 321

The principles applicable in considering applications for setting aside

abatement may thus be summarized as follows : (i) The words "sufficient

cause for not making the application within the period of limitation" should

be understood and applied in a reasonable, pragmatic, practical and liberal

manner, depending upon the facts and circumstances of the case, and the

type of case. The words `sufficient cause' in section 5 of Limitation Act

should receive a liberal construction so as to advance substantial justice,

when the delay is not on account of any dilatory tactics, want of bonafides,

deliberate inaction or negligence on the part of the appellant. (ii) In

considering the reasons for condonation of delay, the courts are more

liberal with reference to applications for setting aside abatement, than

other cases. While the court will have to keep in view that a valuable right

accrues to the legal representatives of the deceased respondent when the

appeal abates, it will not punish an appellant with foreclosure of the appeal,

for unintended lapses. The courts tend to set aside abatement and decide

the matter on merits, rather than terminate the appeal on the ground of

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abatement. (iii) The decisive factor in condonation of delay, is not the

length of delay, but sufficiency of a satisfactory explanation. (iv) The

extent or degree of leniency to be shown by a court depends on the nature

of application and facts and circumstances of the case. For example, courts

view delays in making applications in a pending appeal more leniently than

delays in the institution of an appeal. The courts view applications relating

to lawyer's lapses more leniently than applications relating to litigant's

lapses. The classic example is the difference in approach of courts to

applications for condonation of delay in filing an appeal and applications

for condonation of delay in refiling the appeal after rectification of defects.

(v) Want of `diligence' or `inaction' can be attributed to an appellant only

when something required to be done by him, is not done. When nothing is

required to be done, courts do not expect the appellant to be diligent.

Where an appeal is admitted by the High Court and is not expected to be

listed for final hearing for a few years, an appellant is not expected to visit

the court or his lawyer every few weeks to ascertain the position nor keep

checking whether the contesting respondent is alive. He merely awaits the

call or information from his counsel about the listing of the appeal.

WHEN CONCOCTED REASONS ARE ASSIGNED

AND WHEN THERE IS NEGLIGENCE IN

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PROSECUTING THE CASE - DELAY CANNOT BE

CONDONED 2012 SC

Justice G.S. Singhvi, and Justice Sudhansu Jyoti Mukhopadhaya in a

non-reportable judgment of Maniben Devraj Shah vs Mun.Corp.Of

Br.Mumbai Decided on 9 April, 2012 held that "What needs to be

emphasised is that even though a liberal and justice oriented approach is

required to be adopted in the exercise of power under Section 5 of the

Limitation Act and other similar statutes, the Courts can neither become

oblivious of the fact that the successful litigant has acquired certain rights

on the basis of the judgment under challenge and a lot of time is consumed

at various stages of litigation apart from the cost. What colour the

expression b sufficient causeb would get in the factual matrix of a given

case would largely depend on bona fide nature of the explanation. If the

Court finds that there has been no negligence on the part of the applicant

and the cause shown for the delay does not lack bona fides, then it may

condone the delay. If, on the other hand, the explanation given by the

applicant is found to be concocted or he is thoroughly negligent in

prosecuting his cause, then it would be a legitimate exercise of discretion

not to condone the delay. In cases involving the State and its

agencies/instrumentalities, the Court can take note of the fact that

sufficient time is taken in the decision making process but no premium can

Sridhara babu. N

be given for total lethargy or utter negligence on the part of the officers of

the State and / or its agencies / instrumentalities and the applications

filed by them for condonation of delay cannot be allowed as a matter of

course by accepting the plea that dismissal of the matter on the ground of

bar of limitation will cause injury to the public interest."

The law of limitation is founded on public policy. The Limitation Act,

1963 has not been enacted with the object of destroying the rights of the

parties but to ensure that they approach the Court for vindication of their

rights without unreasonable delay. The idea underlying the concept of

limitation is that every remedy should remain alive only till the expiry of the

period fixed by the Legislature. At the same time, the Courts are

empowered to condone the delay provided that sufficient cause is shown

by the applicant for not availing the remedy within the prescribed period of

limitation. The expression b sufficient causeb used in Section 5 of the

Limitation Act, 1963 and other statutes is elastic enough to enable the

Courts to apply the law in a meaningful manner which serve the ends of

justice. No hard and fast rule has been or can be laid down for deciding the

applications for condonation of delay but over the years this Court has

advocated that a liberal approach should be adopted in such matters so

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that substantive rights of the parties are not defeated merely because of

delay.

QUOTED CITATIONS

In Ramlal v. Rewa Coalfields Ltd. AIR 1962 SC 361, this Court while

interpreting Section 5 of the Limitation Act, laid down the following

proposition: In construing Section 5 (of the Limitation Act), it is relevant

to bear in mind two important considerations. The first consideration is

that the expiration of the period of limitation prescribed for making an

appeal gives rise to a right in favour of the decree-holder to treat the

decree as binding between the parties. In other words, when the period of

limitation prescribed has expired, the decree-holder has obtained a benefit

under the law of limitation to treat the decree as beyond challenge, and this

legal right which has accrued to the decree- holder by lapse of time should

not be light-heartedly disturbed. The other consideration which cannot be

ignored is that if sufficient cause for excusing delay is shown, discretion is

given to the court to condone delay and admit the appeal. This discretion

has been deliberately conferred on the court in order that judicial power

and discretion in that behalf should be exercised to advance substantial

justice.

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Collector, Land Acquisition, Anantnag v. Mst.Katiji (1987) 2 SCC

107 this Court made a significant departure from the earlier judgments and

observed: The legislature has conferred the power to condone delay by


the courts to do substantial justice to parties by disposing of matters on

merits. The expression sufficient cause employed by the legislature is

adequately elastic to enable the courts to apply the law in a meaningful

manner which subserves the ends of justice b that being the life-purpose for

the existence of the institution of courts. It is common knowledge that this

Court has been making a justifiably liberal approach in matters instituted in

this Court. But the message does not appear to have percolated down to

all the other courts in the hierarchy. And such a liberal approach is

adopted on principle as it is realized that:

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being

thrown out at the very threshold and cause of justice being defeated. As

against this when delay is condoned the highest that can happen is that a

cause would be decided on merits after hearing the parties.

3. Every day's delay must be explained does not mean that a pedantic

approach should be made. Why not every hour's delay, every second's

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delay? The doctrine must be applied in a rational common sense pragmatic

manner.

4. When substantial justice and technical considerations are pitted against

each other, cause of substantial justice deserves to be preferred for the

other side cannot claim to have vested right in injustice being done because

of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on



6. It must be grasped that judiciary is respected not on account of its power

to legalize injustice on technical grounds but because it is capable of

removing injustice and is expected to do so.

Making a justice-oriented approach from this perspective, there was

sufficient cause for condoning the delay in the institution of the appeal.

The fact that it was the state which was seeking the condonationand not a

private party was altogether irrelevant. The doctrine of equality before law

demands that all litigants, including the State as a litigant, are accorded the

same treatment and the law is administered in an even-handed manner.

There is no warrant for according a step-motherly treatment when the state

is the applicant praying for condonation of delay. In fact experience shows

that on account of an impersonal machinery (no one in charge of the matter

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is directly hit or hurt by the judgment sought to be subjected to appeal) and

the inherited bureaucratic methodology imbued with the note- making, file-

pushing and passing-on-the-buck ethos, delay on its part is less difficult to

understand though more difficult to approve. In any event, the State which

represents the collective cause of the community, does not deserve a

litigant-non-grata status. The courts therefore have to be informed with

the spirit and philosophy of the provision in the course of the interpretation

of the expression sufficient cause. So also the same approach has to be

evidenced in its application to matters at hand with the end in view to do

even- handed justice on merits in preference to the approach which scuttles

a decision on merits.

In N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123, the Court

went a step further and made the following observations: It is axiomatic that

condonation of delay is a matter of discretion of the court. Section 5 of

the Limitation Act does not say that such discretion can be exercised only

if the delay is within a certain limit. Length of delay is no matter,

acceptability of the explanation is the only criterion. Sometimes delay of

the shortest range may be uncondonable due to a want of acceptable

explanation whereas in certain other cases, delay of a very long range can

be condoned as the explanation thereof is satisfactory. Once the court

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accepts the explanation as sufficient, it is the result of positive exercise of

discretion and normally the superior court should not disturb such finding,

much less in revisional jurisdiction, unless the exercise of discretion was on

wholly untenable grounds or arbitrary or perverse. But it is a different

matter when the first court refuses to condone the delay. In such cases, the

superior court would be free to consider the cause shown for the delay

afresh and it is open to such superior court to come to its own finding even

untrammelled by the conclusion of the lower court. Rules of limitation are

not meant to destroy the rights of parties. They are meant to see that

parties do not resort to dilatory tactics, but seek their remedy promptly.

The object of providing a legal remedy is to repair the damage caused by

reason of legal injury. The law of limitation fixes a lifespan for such legal

remedy for the redress of the legal injury so suffered. Time is precious and

wasted time would never revisit. During the efflux of time, newer causes

would sprout up necessitating newer persons to seek legal remedy by

approaching the courts. So a lifespan must be fixed for each remedy.

Unending period for launching the remedy may lead to unending

uncertainty and consequential anarchy. The law of limitation is thus

founded on public policy. It is enshrined in the maxim interest reipublicae up

sit finis litium (it is for the general welfare that a period be put to litigation).

Rules of limitation are not meant to destroy the rights of the parties. They

are meant to see that parties do not resort to dilatory tactics but seek their

Sridhara babu. N

remedy promptly. The idea is that every legal remedy must be kept alive for

a legislatively fixed period of time. It must be remembered that in every case

of delay, there can be some lapse on the part of the litigant concerned.






the court should lean against acceptance of the explanation. While

condoning the delay, the court should not forget the opposite party

altogether. It must be borne in mind that he is a loser and he too would have

incurred quite large litigation expenses. It would be a salutary guideline that

when courts condone the delay due to laches on the part of the applicant,

the court shall compensate the opposite party for his loss.

In P.K. Ramachandran v. State of Kerala, (1997) 7 SCC 556, this

Court while reversing the order passed by the High Court which had

condoned 565 days delay in filing an appeal by the State against the

decree of the Sub- Court in an arbitration application, observed that the

law of limitation may harshly affect a particular party but it has to be applied

with all its rigour when the statute so prescribes and the Courts have no

power to extend the period of limitation on equitable grounds.

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In Vedabai v. Shantaram Baburao Patil, (2001) 9 SCC 106, the Court

observed that a distinction must be made between a case where the delay is

inordinate and a case where the delay is of few days and whereas in the

former case the consideration of prejudice to the other side will be a

relevant factor, in the latter case no such consideration arises.

In State of Nagaland v. Lipok AO ((2005) 3 SCC 752), the Court

referred to several precedents on the subject and observed that the proof

of sufficient cause is a condition precedent for exercise of discretion

vested in the Court. What counts is not the length of the delay but the

sufficiency of the cause and shortness of the delay is one of the

circumstances to be taken into account in using the discretion. The Court

also took cognizance of the usual bureaucratic delays which takes place in

the functioning of the State and its agencies/instrumentalities and

observed: Experience shows that on account of an impersonal machinery

(no one in charge of the matter is directly hit or hurt by the judgment sought

to be subjected to appeal) and the inherited bureaucratic methodology


delay on its part is less difficult to understand though more difficult to

approve. The State which represents collective cause of the community,

does not deserve a litigant-non-grata status. The courts, therefore, have to

Sridhara babu. N

be informed with the spirit and philosophy of the provision in the course of

the interpretation of the expression of sufficient cause. Merit is preferred

to scuttle a decision on merits in turning down the case on technicalities of

delay in presenting the appeal.

DELAY CONDONATION CASE LAWS

Hon'ble Apex Court in case of Improvement Trust, Ludhiana Vs. Ujagar

Singh & Ors., reported in (2010) 6 SCC 786

It has been observed in this judgment that hyper technical approached to

be avoided and what should be matters to be considered. ........ unless

malafides are pointed out, normally rule is that delay should be

condoned. ............ as observed, the matter should be allowed to be

contested on merits rather than throwing it out on technicalities.

N. Balakrishnan Vs. M. Krishnamurthy, reported in AIR 1998 SC

3222 It is axiomatic that condonation of delay is a matter of discretion

of the Court. Section 5 of the Limitation Act does not say that such

discretion can be exercised only if the delay is within a certain limit. Length

of delay is no matter, acceptability of the explanation is the only criterion.

Sridhara babu. N

Sometimes delay of the shortest range may be uncondonable due to want

of acceptable explanation whereas in certain other cases delay of very long

range can be condoned as the explanation thereof is satisfactory. Once

the Court accepts the explanation as sufficient it is the result of positive

exercise of discretion and normally the superior Court should not disturb

such finding, much less in revisional jurisdiction, unless the exercise of

discretion was on wholly untenable grounds or arbitrary or perverse. But it

is a different matter when the first Court refuses to condone the delay. In

such cases, the superior court would be free to consider the cause shown

for the delay afresh and it is open to such superior Court to come to its

own finding even untrammeled by the conclusion of the lower Court."

Ram Nath Sao @ Ram Nath Sahu & Ors. Vs. Gobardhan Sao & Ors.,

reported in AIR 2002 SC 1201 and referring to the observations in Para

No.13, it was emphasized that there can be some lapse on the part of the

litigant concerned. That alone is not enough to turn down his plea for

condonation of delay.

Balwant Singh (Dead) Vs. Jagdish Singh & Ors., reported in AIR 2010

SC 3043 "We may state that even if the term `sufficient cause' has to

receive liberal construction, it must squarely fall within the concept of

reasonable time and proper conduct of the concerned party. The purpose

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of introducing liberal construction normally is to introduce the concept of

`reasonableness' as it is understood in its general connotation. The law of

limitation is a substantive law and has definite consequences on the right

and obligation of a party to arise. These principles should be adhered to

and applied appropriately depending on the facts and circumstances of a

given case. Once a valuable right, as accrued in favour of one party as a

result of the failure of the other party to explain the delay by showing

sufficient cause and its own conduct, it will be unreasonable to take away

that right on the mere asking of the applicant, particularly when the delay is

directly a result of negligence, default or inaction of that party. Justice

must be done to both parties equally. Then alone the ends of justice can

be achieved. If a party has been thoroughly negligent in implementing its

rights and remedies, it will be equally unfair to deprive the other party of a

valuable right that has accrued to it in law as a result of his acting vigilantly."

Lanka Venkateswarlu (D) by L.Rs. Vs. State of A.P. & Ors., reported in

AIR 2011 SC 1199 "Whilst considering applications for condonation of

delay under S.5 of the Limitation Act, the Court do not enjoy unlimited

and unbridled discretionary powers. All discretionary powers, especially

judicial powers, have to be exercised within reasonable bounds, known to

the law. The discretion has to be exercised in any systematic manner

Sridhara babu. N

informed by reason. Whims or fancies; prejudices or predilections cannot

and should not form the basis of exercising discretionary powers."

Hon'ble Apex Court in the case of Oriental Aroma Chemical Chemical

Industries Ltd. Vs. Gujarat Industrial Development Corporation and

Anr., reported in (2010) 5 SCC 459 where the Hon'ble Apex Court

has again considered and made observations with regard to the approach in

such matters that for the purpose of condonation of delay for a smaller

period it could be liberal, but for condonation of delay for a larger period it

has to be strict for consideration of sufficient cause.

CONDONATION OF DELAY WILL BE LIBERAL BUT

ITS SHALL NOT BE SO LIBERAL TO MAKE

SECTION 5 REDUNDANT 2010 KHC

In a case before Karnataka High court which was decided on 10-12-2010

by Justice Ajit J. Gunjal and Justice B.V. Nagarathna between Y.M.

Thimmareddy vs M.Sunanda RFA no. 1125/2010 avialable to read in

net in the

Sridhara babu. N

link http://judgmenthck.kar.nic.in/judgments/bitstream/123456789/493

041/1/RFA1125-10-10-12-2010.pdf Hon’ble court held in specific

words regarding delay condonation in these lines in para 6 “6. Indeed we

are unable to accept this plea of the defendant-appellant that he was

unwell. Obviously, if the defendant-appellant was suffering from diabetes

as well as hyper tension and that restricted the mobility of his right

shoulder, certainly could not have appeared before the Sub-Registrar and

executed the sale deed on 27.2.2010 and further could not have executed

the vakalath in favour of the counsel when he entered appearance in the

final decree proceedings and also negotiated the sale. Obviously, if the

appellant was suffering from all these ailments right from the date of

judgment till the filing of the appeal, he could not have visited the Sub-

Registrar Office and entered appearance in final decree proceedings. It is

no doubt true that sufficient cause under Section 5 of the Limitation Act

is required to be considered liberally, but however, not so liberally so as to

make Section 5 redundant. Indeed the courts would come to the aid of

litigant who is vigilant and not indolent. It is no doubt true that the

appellant-defendant has made available certain medical records, but

however, they do not disclose that at any point of time, he required

hospitalisation or his mobility was restricted. Hence, we are of the view that

the explanation offered does not satisfy the requirement of Section 5 of

the Limitation Act Indeed the Apex Court in the case of P.K.

http://judgmenthck.kar.nic.in/judgments/bitstream/123456789/493041/1/RFA1125-10-10-12-2010.pdf

http://judgmenthck.kar.nic.in/judgments/bitstream/123456789/493041/1/RFA1125-10-10-12-2010.pdf

Sridhara babu. N

Ramachandran V/s. State of Kerala (AIR 1998 SC 2276} has

observed thus: "Law of limitation may harshly affect a particular party bur it

has to be applied with all its rigour when the statute so prescribe and the

courts have no power to extend the period of limitation on equitable

grounds. The discretion exercised by the High Court was, thus, neither

proper nor judicious. The order condoning the delay cannot be sustained.

This appeal therefore, succeeds and the impugned order is set aside.

Consequently, the application for condonation of delay."

THE OPINION OF TRIAL COURT AS TO

SUFFICIENT CAUSE CANNOT BE INTERFERED

WITH

Mithailal Dalsangar Singh and Ors. vs. Annabai Devram Nini

and Ors., (2003) 10 SCC 991. "9. The courts have to adopt

a justice oriented approach dictated by the upper most

consideration that ordinarily a litigant ought not to be denied an

opportunity of having a lis determined on merits unless he has, by

gross negligence, deliberate inaction or something akin to

misconduct, disentitled himself from seeking the indulgence of

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the court. The opinion of the trial Judge allowing a prayer for

setting aside abatement and his finding on the question of

availability of "sufficient cause" within the meaning of Sub-rule

(1) of Rule (9) of Order 22 and of Section 5 of the Indian

Limitation Act 1963, deserves to be given weight, and once

arrived at would not normally be interfered with by superior

jurisdiction."

Apex Court in Ram Nath Sao @ Ram Nath Sahu and Ors.

Vs. Gobardhan Sao and Ors (2002) 3 SCC 195. Held in

para 12 which reads as under : "12........ However, by taking a

pedantic and hyper technical view of the matter the explanation

furnished should not be rejected when stakes are high and/or

arguable points of facts and law are involved in the case, causing

enormous loss and irreparable injury to the party against whom

the list terminates either by default or inaction and defeating

valuable right of such a party to have the decision on merit.

While considering the matter, courts have to strike a balance

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between resultant effect of the order it is going to pass upon the

parties either way."

2010(2) Supreme 115 (Oriental Aroma Chemical Industries

Ltd., vs. Gujarat Industrial Development Corporation

and another) and an excerpt from it would run thus: "8.

............The law of limitation is founded on public policy. The

legislature does not prescribe limitation with the object of

destroying the rights of the parties but to ensure that they do

not resort to dilatory tactics and seek remedy without delay.

The idea is that every legal remedy must be kept alive for a

period fixed by the legislature. To put it differently, the law of

limitation prescribes a period within which legal remedy can be

availed for redress of the legal injury. At the same time, the

courts are bestowed with the power to condone the delay, if

sufficient cause is shown for not availing the remedy within the

stipulated time. The expression "sufficient cause"

employed in Section 5 of the Indian Limitation Act, 1963 and

Sridhara babu. N

other similar statutes is elastic enough to enable the courts to

apply the law in a meaningful manner which sub serves the ends

of justice. Although, no hard and fast rule can be laid down in

dealing with the applications for condonation of delay, this

Court has justifiably advocated adoption of a liberal approach

in condoning the delay of short duration and a stricter approach

where the delay is inordinate - Collector, Land Acquisition,

Anantnag v. Mst.Katiji, (1987) 2 SCC 107, N.Balakrishnan

v. M.Krishnamurthy, (1998) 7 SCC 123 and Vedabai v.

Shantaram Baburao Patil, (2001) 9 SCC 106.

..........................."

DELAY CONDONATION – PRINCIPLES

RESTATED AND COLLECTED BY

SUPREME COURT 2013 SC

Sridhara babu. N

Esha Bhattacharjee vs Managing Committee Of Raghunathpur Nafar

Academy Decided on 13 September, 2013 by JUSTICE ANIL R

DAVE & JUSTICE DEEPAK MISRA

i) There should be a liberal, pragmatic, justice-oriented, non- pedantic

approach while dealing with an application for condonation of delay, for the

courts are not supposed to legalise injustice but are obliged to remove

injustice.

ii) The terms “sufficient cause” should be understood in their proper spirit,

philosophy and purpose regard being had to the fact that these terms are

basically elastic and are to be applied in proper perspective to the

obtaining fact- situation.

iii) Substantial justice being paramount and pivotal the technical

considerations should not be given undue and uncalled for emphasis.

iv) No presumption can be attached to deliberate causation of delay but,

gross negligence on the part of the counsel or litigant is to be taken note of.

v) Lack of bona fides imputable to a party seeking condonation of delay is

a significant and relevant fact.

vi) It is to be kept in mind that adherence to strict proof should not affect

public justice and cause public mischief because the courts are required to

be vigilant so that in the ultimate eventuate there is no real failure of justice.

Sridhara babu. N

vii) The concept of liberal approach has to encapsule the conception of

reasonableness and it cannot be allowed a totally unfettered free play.

viii) There is a distinction between inordinate delay and a delay of short

duration or few days, for to the former doctrine of prejudice is attracted

whereas to the latter it may not be attracted. That apart, the first one

warrants strict approach whereas the second calls for a liberal delineation.

ix) The conduct, behaviour and attitude of a party relating to its inaction or

negligence are relevant factors to be taken into consideration. It is so as the

fundamental principle is that the courts are required to weigh the scale of

balance of justice in respect of both parties and the said principle cannot

be given a total go by in the name of liberal approach.

x) If the explanation offered is concocted or the grounds urged in the

application are fanciful, the courts should be vigilant not to expose the

other side unnecessarily to face such a litigation.

xi) It is to be borne in mind that no one gets away with fraud,

misrepresentation or interpolation by taking recourse to the technicalities

of law of limitation.

xii) The entire gamut of facts are to be carefully scrutinized and the

approach should be based on the paradigm of judicial discretion which is

founded on objective reasoning and not on individual perception.

xiii) The State or a public body or an entity representing a collective cause

should be given some acceptable latitude.

Sridhara babu. N

FURTHER GUIDELINES

a) An application for condonation of delay should be drafted with careful

concern and not in a half hazard manner harbouring the notion that the

courts are required to condone delay on the bedrock of the principle that

adjudication of a lis on merits is seminal to justice dispensation system.

b) An application for condonation of delay should not be dealt with in a

routine manner on the base of individual philosophy which is basically

subjective.

c) Though no precise formula can be laid down regard being had to the

concept of judicial discretion, yet a conscious effort for achieving

consistency and collegiality of the adjudicatory system should be made as

that is the ultimate institutional motto.

d) The increasing tendency to perceive delay as a non- serious matter and,

hence, lackadaisical propensity can be exhibited in a non-challant manner

requires to be curbed, of course, within legal parameters.

DELAY NOT PROPERLY EXPLAINED WITH CO-

GENT REASONS LIABLE TO BE DISMISSED 2012

SC

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Office of the Chief Post Master General and Ors. v. Living Media India

Ltd. & Anr., reported at AIR 2012 Supreme Court 1506, more

particularly para 13, which reads as under: "13. In our view, it is the right

time to inform all the Government bodies, their agencies and

instrumentalities that unless they have reasonable and acceptable

explanation for the delay and there was bona fide effort, there is no need

to accept the usual explanation that the file was kept pending for several

months/years due to considerable degree of procedural red-tape in the

process. The Government departments are under a special obligation to

ensure that they perform their duties with diligence and commitment.

Condonation of delay is an exception and should not be used as an

anticipated benefit for Government departments. The law shelters

everyone under the same light and should not be swirled for the benefit of a

few. Considering the fact that there was no proper explanation offered by

the Department for the delay except mentioning of various dates,

according to us, the Department has miserably failed to give any

acceptable and cogent reasons sufficient to condone such a huge delay.

Accordingly, the appeals are liable to be dismissed on the ground of

delay."

COURT HAS TO GO IN THE POSITION OF THE

PERSON CONCERNED AND TO FIND OUT IF THE

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DELAY CAN BE SAID TO HAVE BEEN RESULTED

FROM THE CAUSE

Apex Court in the case of State (NCT of Delhi) v. Ahmed

Jaan, reported at (2008) 14 Supreme Court Cases 582. Relevant

portion of the judgment reads as under: "7. The proof by sufficient cause

is a condition precedent for exercise of the extraordinary discretion vested

in the court. What counts is not the length of the delay but the sufficiency

of the cause and shortness of the delay is one of the circumstances to be

taken into account in using the discretion.

In N. Balakrishnan v. M. Krishnamurthy (AIR 1998 SC 3222) it was held

by this Court that Section 5 is to be construed liberally so as to do

substantial justice to the parties. The provision contemplates that the

Court has to go in the position of the person concerned and to find out if

the delay can be said to have been resulted from the cause which he had


circumstances of the case as sufficient. Although no special indulgence can

be shown to the Government which, in similar circumstances, is not shown to



wheels.

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ALL DISCRETIONARY POWERS, ESPECIALLY

JUDICIAL POWERS, HAVE TO BE EXERCISED

WITHIN REASONABLE BOUNDS, KNOWN TO THE

LAW

Apex Court rendered in case of Lanka Venkateshwarlu (D) by L.Rs. v.

State of A.P. & Ors., reported in AIR 2011 SC 1199 wherein the delay

was caused and there was insufficient explanation. The Apex Court set-

aside the order of the High Court in condoning the delay, by holding that

the concept of liberal approach and justice oriented approach cannot be

employed to jettison the substantial law of limitation. In the words of the

Apex Court - We are at a loss to fathom any logic or rationale, which could

have impelled the High Court to condone the delay after holding the same

to be unjustifiable. The concepts such as liberal approach, justice oriented

approach, substantial justice cannot be employed to jettison the

substantial law of limitation. Especially, in cases where the Court

concludes that there is no justification for the delay. In our opinion, the

approach adopted by the High Court tends to show the absence of

judicial balance and restraint, which a Judge is required to maintain whilst

adjudicating any lis between the parties. We are rather pained to notice

that in this case, not being satisfied with the use of mere intemperate

language, the High Court resorted to blatant sarcasms. The use of unduly

Sridhara babu. N

strong intemperate or extravagant language in a judgment has been

repeatedly disapproved by this Court in a number of cases. Whilst

considering applications for condonation of delay under Section 5 of the

Limitation Act, the Courts do not enjoy unlimited and unbridled

discretionary powers. All discretionary powers, especially judicial powers,

have to be exercised within reasonable bounds, known to the law. The

discretion has to be exercised in a systematic manner informed by reason.

Whims or fancies; prejudices or predilections cannot and should not form

the basis of exercising discretionary powers.

WHAT IS TO BE SEEN IS AS TO WHETHER THE

PARTY BY THE EXERCISE OF DUE CARE AND

ATTENTION COULD HAVE AVOIDED THE DELAY

Apex Court in a decision, rendered in case of Balwant Singh [Dead] v.

Jagdish Singh & Ors., reported in 2010 AIR SCW 4848 has given the

test for a sufficient cause and what is to be seen is as to whether the party

by the exercise of due care and attention could have avoided the delay. It

reiterated that sufficient powers and discretion is available with the Courts

for applying this law in a meaningful manner but sufficient cause would mean

presence of legal and adequate reasons.

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LIBERAL APPROACH NEED NOT BE ADOPTED IN

ALL THE CASES, WHEN THE DELAY IS

DELIBERATE AND INORDINATE

In B.Mathuri Goud vs. B.Damodar Reddy, reported in 2012 (7) Scale

230, the Hon'ble Supreme Court has held that in a petition filed under

Section 5 of Limitation Act, to condone the delay of 1236 days in filing

petition under Order 9 Rule 13 CPC was not sustainable in law, since in

the Execution Proceeding, the respondent had been evicted from the

premises and only after a lapse of 1 year, he filed an application under

Order 9 Rule 13 CPC to set aside the exparte decree along with the

petition under Section 5 of Limitation Act to condone the inordiante

delay. The Hon'ble Supreme Court has held that liberal approach need

not be adopted in all the cases, when the delay is deliberate and inordinate,

to meet the ends of justice.

BONAFIDE NATURE OF EXPLANATION ON THE

PART OF APPLICANT TO BE SEEN

In Maniben Devraj Shan vs. Municipal Corpn. of Briham Mumbai,

reported in (2012) 5 SCC 157, the Hon'ble Apex Court has held as

follows : “23. What needs to be emphasised is that even though a liberal

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and justice-oriented approach is required to be adopted in the exercise of

power under Section 5 of the Limitation Act and other similar statutes,

the courts can neither become oblivious of the fact that the successful

litigant has acquired certain rights on the basis of the judgment under

challenge and a lot of time is consumed at various stages of litigation apart

from the cost. 24. What colour the expression “sufficient cause” would get

in the factual matrix of a given case would largely depend on bona fide

nature of the explanation. If the court finds that there has been no

negligence on the part of the applicant and the cause shown for the delay

does not lack bona fides, then it may condone the delay. If, on the other

hand, the explanation given by the applicant is found to be concocted or he

is thoroughly negligent in prosecuting his cause, then it would be a

legitimate exercise of discretion not to condone the delay.”

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Case Law Digest on Delay Condonation

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