Vous êtes sur la page 1sur 150

Sridhara babu.

Sridhara babu. N

DISCLAIMER
The Information provided regarding legal subjects in my series of blogs /scribd
documents is only for general awareness, Iam not responsible for any consequence
through use or misuse of the same. All documents are drafted for specific needs, there is
no guarantee or warrantee if its copied for any such similar causes. Errors and omissions
expected. All blog web sites/ scribd documents /PDF DOCUMENTS are
designed for general information only. The information presented at these
sites/documents should not be construed to be formal legal advice nor the formation of a
lawyer/client relationship. Persons accessing my sites/documents are encouraged to seek
independent counsel for advice regarding their individual legal issues. It is sincerely advised
to cross check the contents with any authentic original publications and records. Citations
are quoted for mere reference, please visit such citation providers to get copies of such
reports. This is a free service, we do not invite reliance upon, nor accept responsibility for,
the information provided in my series of blogs, scribd documents and google documents.
We make every high effort to provide a accurate information, but emissions and omissions
expected. However, neither we, nor the providers of data to us, nor the informations
obtained from relevant court websites give any guarantees, undertakings or warranties
concerning the accuracy, completeness or up-to-date nature of the information provided.
Users should confirm information from another source if it is of sufficient importance for
them to do so. Several Links on the blog/scribd and ads are inserted by good belief and
after visits, that they wont harm any technical hardwares, neither we nor link providers data
and pages, give any guarantees, undertakings or warranties concerning those links.
-SRIDHARA BABU.N

Sridhara babu. N

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

Sridhara babu. N

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.

Sridhara babu. N

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

Sridhara babu. N

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

Sridhara babu. N

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

Sridhara babu. N

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,

Sridhara babu. N

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.

Sridhara babu. N

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

ALLOWED

LITIGANT

TO SUFFER

COULD

NOT

BE

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

Sridhara babu. N

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

Sridhara babu. N

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

Sridhara babu. N

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

Sridhara babu. N

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.

Sridhara babu. N

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.

Sridhara babu. N

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

Sridhara babu. N

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 notemaking, 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

Sridhara babu. N

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,

Sridhara babu. N

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

Sridhara babu. N

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.

Sridhara babu. N

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,

Sridhara babu. N

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

Sridhara babu. N

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

Sridhara babu. N

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"

Sridhara babu. N

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

Sridhara babu. N

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 nonappearance 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 nonparticipation 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 afterthought 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 plaintiffs 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 lifepurpose 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.

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
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], 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

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.

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], 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.

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. 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.

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. 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

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 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
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

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-onthe-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 injusticeoriented 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,
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

Sridhara babu. N

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
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
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 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.

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], 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 threeJudge 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
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,
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,

Sridhara babu. N

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
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

Sridhara babu. N

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. 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

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


KarLJ 439 JUSTICE N KUMAR OBSEERVED:- The
judiciary is respected not on account of its power to regularize injustice on
technical grounds but because it is capable of removing injustice and is
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 crosspurposes 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

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


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


In The State Of Karnataka VS H.B. Munivenkatappa 2007 (4)
KarLJ 439 JUSTICE N KUMAR OBSEERVED:- The
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 LOKAYUKTAS BLINDNESS

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


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

IN/OUT IN LEGAL FIELD

CHALLENGES

WITH

Sridhara babu. N

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


KarLJ

439

JUSTICE

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
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 lifepurpose 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 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.

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

Sridhara babu. N

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
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], 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
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.

Sridhara babu. N

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], 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.

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. 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.

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. 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
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

Sridhara babu. N

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
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-onthe-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 injusticeoriented 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,

Sridhara babu. N

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

Sridhara babu. N

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
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.

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

Sridhara babu. N

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


favour of the party who came forward with false plea.

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], 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 threeJudge 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
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,
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

Sridhara babu. N

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
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. 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

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
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

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


KarLJ 439 JUSTICE N KUMAR OBSEERVED:- The
judiciary is respected not on account of its power to regularize injustice on
technical grounds but because it is capable of removing injustice and is
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
part of its officers or agents and where the officers were clearly at crosspurposes 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

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


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


In The State Of Karnataka VS H.B. Munivenkatappa 2007 (4)
KarLJ 439 JUSTICE N KUMAR OBSEERVED:- The
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 LOKAYUKTAS BLINDNESS

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


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

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


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


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

439

JUSTICE

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
adduced and whether the cause can be recorded in the peculiar
circumstances of the case is 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.

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
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 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
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
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 legalise injustice on

Sridhara babu. N

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.

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
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 crosspurposes 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 decisionmaking process. The delay of over one year was accordingly condoned.

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
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 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,

Sridhara babu. N

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

Sridhara babu. N

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

Sridhara babu. N

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

Sridhara babu. N

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

Sridhara babu. N

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

Sridhara babu. N

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

Sridhara babu. N

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

Sridhara babu. N

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 wellacknowledged 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

Sridhara babu. N

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

Sridhara babu. N

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

Sridhara babu. N

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.

Sridhara babu. N

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

Sridhara babu. N

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,

Sridhara babu. N

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

Sridhara babu. N

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

AMOUNTS

TO

FALSELY

IN

CONTEMPT

THE
AND

COURT
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

Sridhara babu. N

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

Sridhara babu. N

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,

Sridhara babu. N

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

Sridhara babu. N

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

Sridhara babu. N

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 partyLRs 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

Sridhara babu. N

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

Sridhara babu. N

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.
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
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."

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

Sridhara babu. N

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

Sridhara babu. N

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

Sridhara babu. N

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

Sridhara babu. N

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

Sridhara babu. N

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

Sridhara babu. N

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

Sridhara babu. N

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

Sridhara babu. N

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

Sridhara babu. N

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

Sridhara babu. N

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

Sridhara babu. N

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),

Sridhara babu. N

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

Sridhara babu. N

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

Sridhara babu. N

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

Sridhara babu. N

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.

Sridhara babu. N

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
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 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

Sridhara babu. N

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
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 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

Sridhara babu. N

is directly hit or hurt by the judgment sought to be subjected to appeal) and


the inherited bureaucratic methodology imbued with the note- making, filepushing 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

Sridhara babu. N

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.
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
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, 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.

Sridhara babu. N

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
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 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

Sridhara babu. N

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 Honble 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 SubRegistrar 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.

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

Sridhara babu. N

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

Sridhara babu. N

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)

SCC

106.

..........................."

DELAY

CONDONATION

RESTATED

AND

PRINCIPLES

COLLECTED

SUPREME COURT 2013 SC

BY

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 COGENT REASONS LIABLE TO BE DISMISSED 2012
SC

Sridhara babu. N

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

Sridhara babu. N

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
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.

Sridhara babu. N

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 setaside 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.

Sridhara babu. N

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

Sridhara babu. N

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.