A note on Section 5 of the Limitation Act, 1963

Introduction:   

              Rules of limitation are not meant to destroy or foreclose the rights of the parties . It is always fair and appropriate that matters be heard on merits rather than shutting the doors of justice at the threshold. The main purpose for which Section 5 of the Limitation Act, 1963 was enacted is to enable the Court to do substantial justice and that is the precise reason why very elastic expression sufficient cause is employed therein, so as to sub-serve the ends of justice   Section 5 Expression sufficient cause employed therein  is elastic enough to enable the courts to apply the law in a meaningful manner which subserves the ends of justice No hard and fast rule can be laid down in dealing with the applications for condonation of delay. See. Oriental Aroma Chemical Industries Ltd. Vs Gujarat Industrial Development Corporation and another – 2010 (2) SCJ 973 ( D.B. ). See also. Agolapu Raju Vs Agolapu Gangaram – 2016 (3) ALT 429. Section 5 of theLimitation Act, 1963, expression ‘sufficient cause’  must receive a liberal construction so as to advance substantial justice, as was held in State of Karnataka Vs Y. Moideen Kunhi (dead) by Lrs. and others – 2009 (5) SCJ 606 ( D.B. ).  For condonation of delay, sufficient cause be shown Court must not be pedantic in deciding delay condonation petition It should not be dismissed on the mere ground of long delay if the explanation offered is bona fide In the present case. See. Majji Somulu @ Swamynaidu Vs Majji Nagaraju @ Nagesh & Ors, 2015 (6) ALT 301.  In Vardhineedi Narasimha Rao Vs Gadiraju Bapiraju – 2015 (6) ALT 740 ,  the contention of D.Hr. that Section 5 of Limitation Act does not apply to revision/review petitions filed in cases arising out of applications filed under Order 21, CPC is rejected.  

At this juncture, it is apt to refer to section 5 of the Limitation Act, 1963.

Sec. 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 or judgment of the High Court in ascertaining or computing prescribed period may be sufficient cause within the meaning of this Section.

Sufficient cause is distinct from good cause:- Sufficient cause is distinct from good cause, in that, the requirement of good cause is complied with on a lesser degree of proof than that of sufficient cause Sufficient cause be given liberal interpretation, but only as long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned Court has no power to extend period of limitation on equitable grounds. See. Basawaraj and another Vs Special Land Acquisition Officer, 2013 (6) ALT(SC) 43 ( D.B. ). See also. K. Chandra Sekhara Rao (died per LRs) and others Vs District Collector, Ranga Reddy District, Hyderabad and others – 2019 (1) ALT 377.

Earlier view of day-to-day explanation:-  One cannot now dispute the legal proposition that the earlier view of the Apex Court that the appellant was required to explain the delay of each day till the date of filing the appeal has since been diluted by the later decisions of the Hon’ble Supreme  Court and is, therefore, held as no longer good law.  Observing the same, it was held that cause shown by the appellant for condoning the delay in filing the appeal before the High Court was/is a sufficient cause within the meaning of Section 5 of the Limitation Act and, therefore, the application filed by the appellant for Condonation of delay of 554 days in filing the appeal deserves to be condoned Appeals succeed and are accordingly allowed Impugned order is set aside. See: Ummer Vs Pottengal Subida and others – 2018 (3) ALT (SC) 11 ( D.B. ).

       Earlier, in Chairman and Managing Director, APSPDCL, Tirupathi, Chittoor Dist. and another Vs G. Venkatesh and another – 2017 (6) ALT 121, it was pointed out thatthe offer of the petitioner cannot be accepted in view of the judgment of the Apex Court in GMG Engineering Industries and others v. Issa Green Power Solution and others ((2015) 15 SCC 659) wherein the Apex Court held that while the trail Court has exercised the discretion to condone the delay in filing the application to set aside the exparte decrees, should not have imposed onerous condition of depositing the amount In the instant case, the delay was deliberate inaction on the part of the petitioners-government agency, who failed to respond even after receiving summons from the Court Except stating that the concerned clerk did not bring the same to the notice of the Superintending Engineer, with regard to receipt of suit summons, the petitioners did not explain the day today delay or even month to month delay, in filing the application to set aside the exparte order From the judgments referred to above, it is clear that the delay cannot be condoned as a matter of course and that a reasonable and sufficient cause has to be shown, as to why the delay has occurred In the present case, there is absolutely no explanation with regard to delay, which is nearly 1000 days Accordingly, the Civil Revision Petition is dismissed.

In 2019, in M.S. Naudine Pharma, rep. by its Partner and another Vs M/s. Med Manor Organics Pvt. Ltd., rep. by its Director – 2019 (2) ALT 270, it was held that the need to explain every days delay is no longer necessary. The length of the delay is not the criteria but the correctness of the reasons or the explanation for the delay is the important factor As per the settled law on this subject, sufficient cause has to be liberally interpreted provided negligence, inaction, lack of bona fides etc., are not made out. The purpose of the Courts are established to render justice. There is no hard and fast rule for condoning the delay and each case should be dealt with on its own merits. 

When there is no specific provision, then inherent powers under Section 151 CPC can be invoked :- The settled proposition of law is that an application under Section 5 of the Limitation Act is not maintainable in case where a special enactment of Payment of Gratuity Act is holding the field under Section 7 (7) of the Act The inherent powers of the High Court cannot be invoked in such a case where there is a specific provision. When there is no specific provision, then inherent powers under Section 151 CPC can be invoked . See. Narahari Kamala Sastry, Correspondent, Siddardha College of Education, Nellore District and another Vs State of A.P. rep. by its Secretary, Department of Labour and Employment, Viajawada and others – 2019 (3) ALT 380.

Distinction between the question of limitation under the Limitation Act, 1963 or the limitation prescribed by Special Enactments :- The fundamental distinction between the question of limitation under the Limitation Act, 1963 or the limitation prescribed by Special Enactments and the question of delay and laches is that the period to be reckoned in respect of the former is statutorily fixed, while the period to be reckoned in respect of the latter, depends upon the facts and circumstances of each case. See. State of Andhra Pradesh, rep. by District Collector, Chittoor District Vs Estate Abolition Tribunal, Chittoor (District Judge, Chittoor) and others – 2019 (1) ALT 462.

Interplay of Sections 29 and 5:- As per Section 29 for invoking Section 5, twin requisites to be satisfied are (i) There must be a provision for period of limitation under any special or local law in connection with any suit, appeal or application (ii) The said prescription of period of limitation under such special or local law should be different from the period prescribed by the schedule to the Limitation Act. See. K. Somasekhar Reddy and others Vs State Anti Corruption Bureau, rep. by its Inspector of Police, 2015 (3) ALT(CRI.) 181

No demur for application of Limitation Act to proceedings in Criminal Court :-  Preamble of Limitation Act, though, predominantly refers to civil matters, does not exclude its application altogether to proceedings before criminal court, may be in a limited sphere. See. K.Venkeswara Rao and another v. Bekkam Narasimha Reddi and others, AIR 1969 SC 872 and K. Somasekhar Reddy and others Vs State Anti Corruption Bureau, rep. by its Inspector of Police, 2015 (3) ALT(CRI.) 181. See also. A.Sambaiah Nayak and another Vs State of Telangana, rep. by its Special Public Prosecutor, 2017 (1) ALT(CRI.) 372

A bald unsubstantiated statement in the affidavit:- In Allala Bhagavanth Rao Vs Garvandula Vijayalaxmi and others – 2016 (4) ALT , it was observed that  petitioner not made out any sufficient cause except making a bald unsubstantiated statement in the affidavit Courts cannot allow petitions under Section 5 of Limitation Act, when no sufficient cause is made out Therefore, basing on lame excuse or unsubstantiated cause, delay cannot be condoned liberally. However, in D. Manemma and another Vs V. Anantha Reddy (died) per L.Rs. and others – 2013 (2) ALT 332 , it was held that having accepted the costs without any protest, petitioners/defendants are not entitled to question the order condoning the delay.

Application under Section 5 of Limitation Act and Order 9 Rule 13 CPC:- Under the said provision, if the appeal preferred against ex parte judgment is disposed of on any ground other than the ground that it was withdrawn, an application under Order 9 Rule 13, CPC is not maintainable In the present case, appeal was not disposed of, on merits Withdrawing the appeal or not pressing the appeal is one and the same as in both the cases, there will be no order on merits No illegality committed by lower court in allowing the petition Revision petition by plaintiff dismissed as devoid of merits. See. S. Davender Reddy Vs S. Ravinder Reddy, 2016 (4) ALT 53. In another case,application under Section 5 of the Limitation Act seeking condonation of delay of 101 days in filing application under Order 9 Rule 13 CPC, the Hon’ble Court held that  petitioners, in their affidavit, categorically stated about the knee operation undergone by their Counsel at Hyderabad But the said aspect missed the attention of the Court below Since it is a suit for partition and substantial rights of parties are involved and having regard to the reasons stated in the affidavit, held, this Court is of the considered opinion that the ends of justice would be served, if the petitioners are permitted to prosecute the suit, however, subject to certain terms Revision allowed, subject to payment of costs of ` 2,000/- to the plaintiffs within a period of three weeks from date of receipt of copy of this order. See. Padigi Pedda Ranga Reddy and others Vs Padigi Sreerami Reddy and others – 2016 (6) ALT 341. See also. P. Buchanna Vs B. Yadagiri – 2017 (3) ALT 596; Gudu Saheb Vs Shaik Khasim Saheb – 2020 (4) ALT 485;  and  Chittibomma Veera Venkata Raju Vs Chittibomma Sakuntala – 2020 (3) ALT 589. Collector is not a Civil Court:-  Provisions of Section 5 of the Limitation Act have not been made applicable to proceedings before the Collector under the Act. See. Bhagwan Das and others Vs State of U.P. and others – 2010 (2) SCJ 865. See also. D. Umarani and others Vs District Collector, Karimnagar and others – 2015 (1) ALT(REV.) 468.

Whether the decision of second appellate authority to entertain second appeals filed after the prescribed period of limitation and to pass interlocutory and final orders, is valid :-  In A. Sridhar and others Vs II Appellate Authority and Deputy Commissioner of Labour (Twin cities), Hyderabad and others – 2017 (4) ALT 51 , it was held that in view of the law laid down by the Full Bench of this Court in the Nalgonda Co-operative Marketing Society Limited, rep. by its Secretary, Sri S.Narahari v. Labour Court, Hyderabad, rep. by its Presiding Officer, Hyderabad and others (1993 (2) ALT 661), directly on the point and also in view of the judgment of the Supreme Court in M.P. Steel Corporation v. Commissioner of Central Excise ((2015) 7 SCC 58), this Court is of the considered opinion that a second appeal is not maintainable, unless the same is filed within 30 days from the date of receipt of copies of orders of the first appellate authority If no second appeal is filed within 30 days, the second appellate authority is denuded of power to entertain the second appeals and becomes functus officio Thus, even assuming that the second appellate authority has considered the delay in filing second appeals, as second appeals are not maintainable if they are not filed within 30 days, it would have no power and jurisdiction to decide the second appeals Therefore, the second appellate authority erred in entertaining the second appeals filed by the 3rd respondent-Bank after the prescribed period of 30 days and disposing of the same on merits The decisions made by the second appellate authority are perverse Thus, the orders of the second appellate authority made in M.P. Nos.1 to 40 of 2008 and final orders in S.A. Nos.10, 12, 28, 29, 30, 32, 33, 35 and 40 of 2008, impugned herein, liable to be and accordingly set aside. In this case, the Writ petitions are allowed. 

Matter of discretion of the Court :- It is now a crystallized principle in our jurisprudence that condonation of delay is a matter of discretion of the Court and Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain or even a reasonable limit.  Length of delay is, thus, not of significance, but what is most vital is the acceptability of the explanation and that was the only criteria by which the cause for condonation of delay should be judged. The main purpose for which Section 5 was enacted was to enable the Court to do substantial justice and that is the precise reason why very elastic expression sufficient cause is employed therein, so as to sub-serve the ends of justice. It is well to remember that the very purpose sought to be achieved by the Courts is to sub-serve the ends of justice Therefore, when substantial justice and technical consideration are pitted against each other, cause of substantial justice had to be preferred to that of the technicalities, inasmuch as, no party can every claim a vested right when injustice is being done, all due to the delay in approaching the Court by the other party. See. G. Haribabu Vs Lagula Krishnaiah Goud and others , 2017 (6) ALT 136 .

The date of order mentioned in Section 5 of the Limitation Act means:- he expression within 30 days after making of the order means within 30 days after the date on which communication of the order reached the affected party The time can begin to run only from the date on which the decision is communicated The date of order mentioned in Section 5 of the Limitation Act means date of knowledge of that order Knowledge means knowledge of the contents of the order, but not mere knowledge that an order was passed. See. K. Chandra Sekhara Rao (died per LRs) and others Vs District Collector, Ranga Reddy District, Hyderabad and others – 2019 (1) ALT 377.

Some cases where section 5 petitions are dismissed:- If sufficiency of cause is not shown for condonation of delay, generally, such petitions are liable for dismissal.  There are some cases where application for condonation of delay was dismissed. See. A.P. Housing Board, rep. by its Housing Engineer, Vijayawada, Krishna District and another Vs G. Vijaya Bhaskar Rao – 2018 (1) ALT 334 ( D.B. ); State of Andhra Pradesh, rep. by its Principal Secretary, Collegiate Education, Guntur District, and others Vs Darsi Phebe Sarah and another – 2017 (6) ALT 689 ( D.B. ); G. Haribabu Vs Lagula Krishnaiah Goud and others – 2017 (6) ALT 13. In Jagdish Vs Smt. Saresh and others – 2018 (2) An.W.R. 379, it was observed that  due Diligence by applicant-appellant Appellant along with respondent-driver was held liable jointly and severally Held, mere technicalities should not stand in the way of dispensation of substantial justice, applicant-appellant is unable to show that due diligence was exercised by him It is clear that a casual approach was adopted and the present is clearly not a case which calls for a liberal delineation Applications seeking Condonation of delay in filing of this appeal and exemption from complying with condition as provided under proviso to Section 173 (1) of the Motor Vehicles Act, 1988, are dismissed Main appeal also stands dismissed. The Hon’ble Full Bench of the Apex Court in Baljeet Singh (Dead) through Lrs. and others etc. etc. Vs State of U.P. and others – 2019 (5) ALT(SC) 298 ( F.B. ), held that to make out a case for condonation of delay, the applicant has to make out a sufficient cause/reason which prevented him in initiating the proceedings within the period of limitation The applications for condonation of delay stand dismissed.

Applicability of section 5 of Limitation Act to SARFAESI Act :- The provisions of Section 5 of the Act of 1963 would therefore be very much applicable to an application filed beyond time under Section 17(1) of the SARFAESI Act The Appellate Tribunal did not adjudicate upon the findings of the Tribunal as to the petitioner company failing to substantiate sufficient cause for condonation of the delay under Section 5 of the Act of 1963 Writ petition is accordingly allowed. See. Porus Laboratory Private Limited Vs Indian Bank, Asset Recovery Management Branch, Hyderabad and another – 2018 (5) ALT 108 ( D.B. ).

There is no general proposition that mistake of counsel by itself is a sufficient ground for condoning delay It is always a question of fact whether the mistake committed by a counsel is bona fide or merely a device to cover laches on the part of litigant or an attempt to save limitation in an underhand way. See. V.S.H. Babu Vs V. Savithri & Ors, 2015 (4) ALT 134. As was pointed out in Allavarapu Veerabhadra Rao and others Vs Paasi Tata and others – 2015 (4) ALT 368, silence of appellants for more than two years would create a legitimate expectation in the respondents that the litigation has come to an end Respondents cannot be subjected to prolonged litigation by condoning inordinate delay in the absence of proper explanation Application and consequently the appeal dismissed.  What principles are to be applied for Condonation of delay under section 5 of the Limitation Act are succinctly explained in  State of A.P. and another Vs Allu Swaminaidu and others, 2000 (1) ALT 444. In State of A.P. and another Vs Allu Swaminaidu and others – 2000 (1) ALT 444, it was observed that where public interest is involved, delay can be condoned and heavy costs can be imposed for negligence by the State.  As per decision in Om Prakash Vs Ashwani Kumar Bassi – 2010 (7) SCJ 415 ( D.B. ), section 5 of the Act can be applied in Rent Control cases.

Conclusion: 

The Limitation Act, 1963 is an Act to consolidate and amend the law for the limitation of suits and other proceedings and for purposes connected therewith Section 4 provides where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens Section 6 refers to institution of a suit or making of application for the execution of a decree by a minor or insane, or an idiot who may institute the suit or make the application within the same period after the disability has ceased Section 29(2) provides that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation and the provisions contained in Sections 4 to 21 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law Special or local law may also provide remedy by institution of suits, appeals and applications in the Courts, i.e., civil court and to its normal hierarchy and also create special forum for determining rights and liabilities and provide remedies The remedy of appeal and revision is also provided in the taxing statutes which authorities are different from normal civil courts Section 29(2) in reference to different special or local laws came for consideration before this Court in large number of cases Operation of Section 29(2) of the Limitation Act is confined to the suits, appeals and applications referred to in a special or local law to be filed in Court and not before statutory authorities like Commissioner under Act, 1959 . See. Ganesan rep. by its Power Agent G. Rukmani Ganesan Vs Commissioner, The Tamil Nadu Hindu Religious and Charitable Endowments Board and others – 2019 (4) ALT(SC) 176 ( D.B. ).

To say in short, the Court should take liberal, pragmatic, justice oriented, non-pedantic approach while dealing with an application under Section 5 of the Limitation Act,1963. The Courts are not supposed to legalise injustice but are obliged to remove injustice The term 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 Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis The cause shown is a bona fide cause to condone the delay which is sufficient and relevant fact 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.  As was held in  2019 (1) An.W.R. 54, the  law of limitation is based on the legal maxim Interest Reipubulicea Ut Sit Finis Litium which means that it is for the general welfare that a period be put to litigation. It is equally important to remember, as was held in Smt. Govindu Vidyulatha Vs Movva Suri Babu – 2019 (2) ALT 185, that the length of the delay is not important but the sufficiency of the reasons are important. -x-

Civil Law

3 Comments

Leave a Reply Cancel reply