Section 5 of the Limitation Act deals with expression condonation
of delay. It reads as follows:
Extension of
the prescribed period in certain cases: Any appeal or any application,
other than an application under any provisions of Order XXI of the Code of
Civil Procedure, 1908(5 of 1908), may be admitted after the prescribed period,
if the appellant or the applicant satisfies the court that he had sufficient
cause for not preferring the appeal or making the application within such
period.
Explanation
: The fact that the appellant or the applicant was mislead by any order, practice or Judgment of the High
Court in ascertaining or computing the prescribed period may be a sufficient
cause within the meaning of this section.
It becomes quite imperative to understand the literal
meaning of “Condone / Condonation “before proceeding further with the write up.
In literal sense condone means to approve or sanction something especially with
reluctance. From this definition we can construe that the Court condones a
delay with a sense of reluctance but prescribing the same on the basis of a
“Sufficient Cause”. Section 5 of the Limitation Act, 1963 plays a vital role as
it encompasses the expression condonation of delay of any appeal or application
after the prescribed period. If we were to look into section 3 of the
Limitation Act, 1963 it is been clearly mentioned that any suit instituted, or
an appeal preferred or an application made after the prescribed period of time
shall be dismissed. It is immaterial if the defence was taken up for the delay
or not. This is indicative of the fact that this power is exercised by the
discretion of the court.
Similarly under S.5 the Court is empowered to exercise its
discretion in condoning the delay considering that a sufficient cause exists in
ascertaining the same. In Balwant Singh (Dead) v/s Jagdish Kumar and ors AIR
2010 SC 3043 the Hon’ble Supreme Court has held that sufficient cause means
presence of legal and adequate reasons. In the same Judgment it was again
reiterated that the Law of Limitation may affect a particular party harshly but
it has to be applied with all rigour when the statue so prescribes and the
courts have no power to extend the period of limitation on equitable grounds.
In Land acquisition officer
Ananth Nag v/s Mst. Katiiji and ors AIR 1987 SC 133 The Supreme Court has held
that 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 that
being the life purpose for the existence of the institution of Courts . The
Supreme Court in this Judgment prescribed certain guidelines regarding the liberal
approach to be adapted to evaluate a sufficient cause
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 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.
From a plain reading of S 5 it is comprehensible that
Section 5 deals with the condonation of delay of applications and appeals but not
the institution of suits. The Court has managed to prescribe a list of
conditions which amounts to a sufficient cause in seeking condonation of delay
as under S 5 of the Act.
1.
Mistake of fact - Must be bonafide and unintentional
in nature.
2.
Disease or illness of the applicant in filing
the appeal or application in a prescribed time
3.
Imprisonment of any of the parties to the suit
4.
Mistake by Court authorities in providing copy
of the decree or order
5.
Mistake of Law only under bonafide and authentic
conditions.
6.
Mistake of Counsel – however, Counsels engagement in other Court is
not an excuse
7.
Illiteracy ,poverty and being a Pardanashin
women are certain other grounds
We can conclude that the main focus of section 5 is not
intended to calculating the amount of delay in time but this section is focused
at the cause of such delay. The delay in filing appeal or application must be
under bonafide, authentic and genuine grounds lacking any particular intention
to vexatious delay and harassment to the other party.
Contributed by:
Maitreyi Raghuraman
