Section 5. Extension of prescribed period in certain cases:
Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 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 ‘misled’ by any order, practice three sets of spare paper books or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.
Section 5 does not apply to suits.
Law Commission in its 89th report on limitation act, 1963 in 1983 states the justification for excluding applications under Order 21 CPC from the scope of Section 5, since the period available is long enough (12 Years). Article 136 Schedule 1 Limitation Act.
Section 5 applies to all appeals, applications other than those applications under Order 21 CPC. Section 5 also applies to all applications under the special local enactments unless specifically excluded.
What constitutes a different cause is a question of fact to be decided in the facts & circumstances of each case.
Section 5 of the Act nowhere says that discretion can be exercised only if the delay is within limit. Length of delay is not a matter, acceptability of the explanation is the only criterion. Delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in other cases delay of a very long range can be condoned as the explanation thereof is satisfactory.
Sufficient cause—Bona fide intention, Cause beyond my control
Sufficient cause, as already said is a question of fact to be decided in each case. Sufficient cause cannot be precisely defined. To do so would be to crystalize into a rigid definition that judicial power & discretion which the legislature has for good reasons left undetermined.
The expression “sufficient cause” should be liberally interpreted so as to advance substantial justice. Refusing to condone delay can result in meritorious matter being thrown out at very threshold & cause of justice being defeated.
While on the other hand, as against this, when delay is condoned the highest than can happen is a cause would be heard on merits. Limitation act should be strictly construed means that a court has no power apart from Section 4 to 24 to relieve a litigant from the bar of limitation but while condoning the delay, the expression “sufficient cause” should be liberally construed so as to advance the substantial justice.
Test— The test, whether or not a cause is sufficient, is to see whether it is a bona fide cause, in as much as nothing shall be taken to be bona fide or in good faith, which is not done with due care & attention.
Objectively determined (Perspective based)– As to whether in a particular case there is sufficient cause or not is a question of fact and a decision in one case cannot be an authority for another case.
Ram Lal v. Rewa Coalifidds Ltd. AIR 1962 SC 361—“Within such period” does not mean during such period. In showing sufficient cause for condonation of delay, the appellant has to explain whole of the delay covered by the period between last day of limitation & the date on which appeal was actually filed.
Even after explanation of delay, condonation can’t be asked for as a matter of right, it is a discretion of court to be exercised judiciously like any other discretion.
APPROACH—PRAGMATIC
EACH DAYS DELAY :- The rule is that each days delay is to be explained, but the court should not adopt a pedantic has splitting approach in asking explanation of delay. Why not each hours delay, every minutes delay & so on. There has to be a pragmatic approach. It is no presumption that delay is occasioned deliberately or on account of culpable negligences or malafides. The courts should be heritant in legalizing injustice on technical grounds.
Collector Land Acquisition Vs. M s t . Katiji & Ors. – AIR 1987 SC 1353
Supreme Court gave 6 points:-
1. Ordinarily a litigant does not stand to benefit by lodging an late appeal.
2. Refusing to condone delay can result in a meritorious matter being thrown out at very threshold & 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 days delay must be explained – it does not mean that a pendantic approach should be made. Why not every hours delay. The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice & technical considerations are pitted against each other, cause of substantial justice deserves to be preferred.
5. There is no presumption that delay is occasioned deliberately or on account of culpable negligence or on account of malfide.
6. Judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of remaining injustice & is expected to do so.
STATE OF GOVERNMENT- G. Ramegowda Vs. Special Land Acquisition Officer – AIR 1988 SC 897 – M.N. Venkatachalliah Para 8— In litigation to which government is a party, there is yet another aspect which perhaps, cannot be ignored. If appeals by govt. are lost for default – no person is individually affected by what ultimately suffer is public interest.
Supreme Court said – the law of limitation is no doubt 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 different complexion is imported to a matter where public interest is shown to have suffered owing to acts of fraud on the part of its officers.
Supreme Court further said, in assessing what constitutes “sufficient cause”, for the purpose of Section 5, it might be unrealistic to exclude from consideration factors which are peculiar to the working government. Keeping in view the proverbially slow process of decision making and also taking into account the considerable degrees of procedural red-tape in decision making, a certain amount of latitude is not impermissible. It is often said that delay on the part of government is less difficult to understand though more difficult to approve.
SUITS APPLICABILITY—Section 5 does not apply to suits. The reason is that the period prescribed for most of the suits extends from 3 to 12 years, while the periods prescribed for appeals & applications mentioned is not exceeding 6 months; some concession therefore had to be allowed in respect of these appeals & applications. Section 5 does not apply to execution applications.
TRIBUNALS—Section 5 applies to courts only & not to appeals or applications presented to tribunals or other authorities. But the relevant statute may confer power upon the tribunal to condone the delay.
CRIMINAL — Section 5 is attracted to appeals under Cr.P.C.
APPLICATION IN WRITING—Section 5 does not provide for an application in writing. However, since the petitioner has to satisfy the court as regards sufficient cause, it is desirable that he would file a formal application. But only on this ground, condonation of delay prayer can’t be refused.
SUFFICIENT CAUSE TO ARISE WITHIN LIMITATION— Note- The event or circumstance accounting for the delay must arise before the expiry of limitation period & no event or circumstance arising after the expiry of limitation period can constitute sufficient cause. Even after sufficient cause being shown, the court has discretion to refuse or admit the proceedings. The extension of time under Section 5 of Limitation Act is not or absolute right of party.
The Court must carefully weigh the claims of two parties. The scope of enquiry must be limited to relevant facts. A litigant should not be permitted to take away a right which has accrued to the other party by lapse of time.
Criminal Cases:- State V. Dittu Ram, AIR 1955 Punjab 164 (C.J. Bhandari)– While dealing with applications under Section 5 of Limitation Act, 1963 courts are always influenced by the consideration whether extension of period of limitation is likely to affect the rights which come up to vest in opposite party by efflux of time. But if the convict’s appeal is out of time, it is practice to condone the delay as no right can be said to vest in state to have the conviction of a person upheld. If on the other hand, the state is negligent in presentation of appeal against acquittal, a very clear right comes to vest in accused person & he is entitled to claim that save in exceptional circumstances delay in filing appeal by state should not be condoned.
CRITICAL NOTE – Madras High Court doesn’t agree – Limitation is a matter of great importance and not to be considered as a matter of routine. Law makers in his wisdom has provided a period of limitation for each kind of application, appeal & suit. It also provides for provision to condone the delay.
SUFFICIENT CAUSE – “Sufficient Cause” is not defined in the Act but it must mean a cause which is beyond the control of the party invoking Section 5. A cause for delay which a party could have avoided by exercise of due care & caution cannot be a sufficient cause.
EXAMPLES
• Illness of party or counsel
• Imprisonment of a party
• Mistake of counsel or clerk in recording date
• Illiteracy
• Minority
• Poverty
• Widowhead
• Pardanashin
All these are not sufficient cause under Section 5. Hardship is no ground for condonation.
N. Balakrishnan V. M.Krishanmurthy, AIR 1998 SC 3222 – Professional misconduct of an Advocate is not informing the party & consequent failure to take action.
Condonation of delay allowed by Supreme Court – Two observations:-
Length of delay is no matter – Acceptability of the explanation is the only criterion. The court has to take into account whether there is acceptable or probable explanation as sufficient cause. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation & in some other cases, delay of a very long range can be condoned as explanation is satisfactory.
Superior Court- Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion. Normally, the superior court should not disturb such finding, unless the exercise of jurisdiction/discretion was on wholly untenable ground or arbitrary or perverse. But when the first court refuses to condone the delay, the superior court would be free to consider the cause shown for delay afresh & it is open to such superior court to come to own finding.
Sufficient cause is a condition precedent:- Proof of sufficient cause is a condition precedent for exercise of discretionary jurisdiction vested in the court under Section 5 Limitation Act. If sufficient cause is not shown, then nothing further has to be done and the application has to be dismissed on that ground alone. Discretion how to be exercised?
Two considerations must prevail before the Court.
One. Whatever rights have been accrued/ decided/decreed in favour of respondent cannot easily be displaced by any inaction on part of applicant. The court must demand explanation of each day’s delay.
Second consideration is, that in a case where sufficient cause has been reasonably explained, the court should not refuse condonation. One must note that even after sufficient cause being shown, the court has discretion to extend or not to extend the period of limitation. The discretion has to be exercised in accordance with sound judicial principles. The rule guiding discretion is to see whether the party claiming indulgence has been reasonably diligent in prosecuting his application, and that he has acted in a bonafide manner.
IMPRISONMENT:- Mere fact that a party was in jail without anything more is not necessarily a sufficient cause for extending the time. It is not that imprisonment in jail is always a sufficient cause. It all depends upon the facts & circumstances. Whether in the jail at the relevant time, he was in any way handicapped or precluded in his defence by reason of the jail authorities having not given him proper facilities for giving instructions to his lawyer or otherwise causing a disability to his defence.
Deemed to have been condoned:- Where a court having heard a party on the plea of limitation, without specifically deciding the objection of limitation, passes an order on the merits of the case, it should be presumed that the court has extended the time.
Whether an application u/s 5 can be made during pendency of appeal? – Yes. There is no bar to make an application under Section 5 during the pendency of appeal. When a respondent is entitled to challenge the admission on the ground of limitation at final hearing, it means that the plea of limitation is available even at the final hearing of the appeal.
Delay Condoned w/o notice– When delay is condoned without notice to respondent, it is open to respondent to raise the question/objection at the time of final hearing. It is violation of natural justice principle & the court can reopen the question and decide whether there is sufficient cause for admitting the appeal or application beyond time