.png)
In the intricate world of criminal law,
timing can make the difference between justice served and justice denied. The
Limitation Act of 1963 sets clear boundaries, but what happens when these
temporal constraints threaten to undermine the very essence of legal remedy?
The answer lies in a judicial principle that prioritizes substance over
technicality.
The 90-Day Window: Understanding the Framework
Print PageIt is an accepted position that the appellant had filed a writ petition before the High Court on 24.02.2018, which was not entertained vide the order dated 07.03.2018 on the ground that the appellant should approach the Appellate Authority. The appellant is entitled to ask for exclusion of the said period in terms of Section 14 of the Limitation Act, 1963. Exclusion of time is different, and cannot be equated with condonation of delay. The period once excluded, cannot be counted for the purpose of computing the period for which delay can be condoned. {Para 3}
In the Supreme Court of India
(Before Sanjiv Khanna and J.K. Maheshwari, JJ.)
Laxmi Srinivasa R and P Boiled Rice Mill Vs State of Andhra Pradesh and Another.
Civil Appeal No. of 2022 (@SLP(C) No. 11225 of 2022)
Decided on November 14, 2022
Citation: 2022 SCC OnLine SC 1790.
Print PageThus, the Supreme Court has, in clear terms, held that existence of sufficient cause for not filing the appeal in time is a condition precedent for exercising discretionary power to condone the delay. The Court further clarified that the phrases 'liberal approach', justice-oriented approach' and cause for the advancement of 'substantial justice' cannot be employed to defeat the law of limitation so as to allow stale matters or as a matter of fact dead matters to be revived and re-opened by taking aid of Section 5 of the Limitation Act.
17. The Supreme Court, while highlighting the aspect of protecting the interest of institution, has also observed that the law of limitation will have to be implemented, though would harshly affect the party. Thus, at the end of the day, the delay will have to be condoned only upon showing sufficient cause. At the same time, the institutional interest of the State will have to be considered but then the default of individuals cannot be ignored as well.
18. The default will have to be dealt with in terms of Section 10 of the Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005 (for short "the Act of 2005"), which reads thus :
"10. (1) Every Government servant shall be bound to discharge his official duties and the official work assigned or pertaining to him most diligently and as expeditiously as feasible :
Provided that, normally no file shall remain pending with any Government servant in the Department or Office for more than seven working days :
Provided further that, immediate and urgent files shall be disposed of as per the urgency of the matter, as expeditiously as possible, and preferably the immediate file in one day or next day morning and the urgent file in four days :
Provided also that, in respect of the files not required to be referred to any other Department, the concerned Department shall take the decision and necessary action in the matter within forty-five days and in respect of files required to be referred to any other Department, decision and necessary action shall be taken within three months.
(2) Any wilful or intentional delay or negligence in the discharge of official duties or in carrying out the official work assigned or pertaining to such Government servant shall amount to dereliction of official duties and shall make such Government servant liable for appropriate 1.[disciplinary action under the All India Services (Discipline and Appeal) Rules, 1969, the] Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 or any other relevant disciplinary rules applicable to such employee.
(3) The concerned competent authority on noticing or being brought to its notice any such dereliction of duties on the part of any Government servant, after satisfying itself about such dereliction on the part of such Government servant shall, take appropriate disciplinary action against such defaulting Government servant under the relevant disciplinary rules including taking entry relating to such dereliction of duty in the Annual Confidential Report of such Government servant."
19. As could be seen, sub-section (1) of Section 10 of the Act of 2005 provides that every Government servant shall discharge his official duties assigned or pertaining to him most diligently and expeditiously and that no file shall remain pending with any Government servant in the department, usually for more than seven working days. Thus, additional time taken will have to be properly justified. In addition, Rules 10 to 13 of the Maharashtra Prevention of Delay in Discharge of Official Duties Rules, 2013 (for short "the Rules of 2013) provides for detailed mechanism to prevent/avoid delay. Despite such a provision and several judgments of the Supreme Court deprecating casual approach in processing files, there is no improvement.
20. There is a reason for the same and the reason is not taking action, provided under sub-sections (2) and (3) of Section 10. It is unfortunate that the effect of sub-section (1) of Section 10 has been neutralized by not taking recourse to sub-sections (2) and (3) of Section 10. In that sense, all the officials have collectively failed to protect institutional interest of the State. Resultantly, the casual approach of Government servants continue and on top of it, the judgments of the Supreme Court are cited to argue as if the Government Servants have license to sit over the files and to expect the Courts to take liberal view.
21. As stated earlier, to expect from the Court a liberal approach, the officers, like the applicants, are/were duty bound to show that despite due diligence and bona fide efforts, the appeal could not be filed within stipulated time because of certain administrative exigencies, which were beyond their control. The Government Officials are under a special obligation to ensure that they perform their duties with due diligence and commitment.
22. The application as also the affidavit filed by the applicants before the First Appellate Court is completely silent as to what prevented the applicants to adhere to rigor of Section 10 of the Act of 2005. In fact, the reasons assigned to condone the delay does not show any cause, much less sufficient cause, to condone the delay. This is not a case where certain leeway could be provided to the applicants. The judgment of Sheo Raj Singh (supra) is, therefore, of no help to the applicants.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Second Appeal No. 305 of 2009
Decided On: 25.04.2024
The State of Maharashtra and Ors. Vs. Omprakash
Hon'ble Judges/Coram:
Anil L. Pansare, J.
Citation: 2024:BHC-NAG:4790, 2024:BHC-NAG:4722,
MANU/MH/2714/2024, 2024(4) MhLJ 428(Bom).
Print PageIt has also been settled vide State of Jharkhand and Ors. v. Ashok Kumar Chokhani and Ors. MANU/SC/0039/2009 : AIR 2009 SC 1927, that the merits of the case cannot be considered while dealing with the application for condonation of delay in filing the appeal. {Para 22}
26. On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that:
(i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself;
(ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time;
(iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally;
(iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act;
(v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence;
(vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal;
(vii) Merits of the case are not required to be considered in condoning the delay; and
(viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision.
IN THE SUPREME COURT OF INDIA
Special Leave Petition (Civil) No. 31248 of 2018
Decided On: 08.04.2024
Pathapati Subba Reddy (Died) by L.Rs. and Ors. Vs. The Special Deputy Collector (LA)
Hon'ble Judges/Coram:
Bela M. Trivedi and Pankaj Mithal, JJ.
Author: Pankaj Mithal, J.
Citation: MANU/SC/0285/2024,2024:INSC:286.
Print PageThe CPC nowhere provides that on filing a Miscellaneous Application, the time to file the written statement would be extended or excluded. Similarly, the Defendant claimed in the Application for condonation of delay that the period during which the Application under Order VII Rule 11 was pending, is entitled to be excluded and thus, the delay according to the Petitioner/ Defendant was calculated as only 14 days. Such calculation is completely on wrong advise or presumption. The written statement was filed after a period of 160 days along with the Application for delay wherein there are no sufficient reasons disclosed to exercise the discretion of the Court by condoning the delay. {para 15}
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 105 OF 2024
Federal Brands Ltd., Vs Cosmos Premises Pvt. Ltd.,
CORAM: BHARAT P. DESHPANDE, J.
DATED: 2nd AUGUST 2024
Print PageThe delay was not condoned by the Tribunal on the ground that it was filed more than one year after the impugned order came to be passed. No litigant stands to benefit in approaching the courts belatedly. It is not the length of delay that would be required to be considered while examining the plea for condonation of delay, it is the cause for delay which has been propounded will have to be examined. If the cause for delay would fall within the four corners of “sufficient cause”, irrespective of the length of delay same deserves to be condoned. However, if the cause shown is insufficient, irrespective of the period of delay, same would not be condoned. {Para 20}
In the Supreme Court of India
(Before Aravind Kumar and Sandeep Mehta, JJ.)
Mool Chandra Vs Union of India and Another.
Civil Appeal Nos. 8435 - 8436 of 2024
Decided on August 5, 2024
On plain reading of Rule 17(i) of Order XLI of Civil Procedure Code, it is clear that the First Appellate Court can dismiss the appeal if nobody is present for the appellants on the date of hearing and it is not proper on the part of the Appellate Court to record the findings on merits of the appeal and the only course available to the Appellate Court when the Appellant and his advocate are absent at the time of hearing, is to dismiss the appeal for non-appearance/for want of prosecution.
9. Mr. Kamat, learned Counsel appearing on behalf of the appellants has also relied upon the judgment of the Apex Court in the case of Secretary, Deptt. of Horticulture, Chandigarh and another v. Raghu Raj, MANU/SC/8167/2008 : AIR 2009 SC 514, wherein it has been held that once the appeal is admitted and placed for hearing, it can be dismissed for default but cannot be decided on merits in the absence of appellant or his advocate.
10. Since in the present case, the application for condonation of delay has been decided by the learned first Appellate Court on merits in the absence of appellants and their advocate, the impugned order is not sustainable and is therefore liable to be set aside.
IN THE HIGH COURT OF BOMBAY AT GOA
S.A. No. 74 of 2013
Decided On: 12.02.2014
Joao Vs. Bernandina Fernandes
Hon'ble Judges/Coram:
U.V. Bakre, J.
Citation: MANU/MH/1707/2014,2014(5)MHLJ 56.
Print PageAlso, it must be remembered that merely because sufficient cause has been made out in the facts of a given case, there is no right in the Appellant to have delay condoned. This was felicitously put in Ramlal v. Rewa Coalfields Ltd., MANU/SC/0042/1961 : (1962) 2 SCR 762 as follows: {Para 60}
It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it. In this connection we may point out that considerations of bona fides or due diligence are always material and relevant when the Court is dealing with applications made Under Section 14 of the Limitation Act. In dealing with such applications the Court is called upon to consider the effect of the combined provisions of Sections 5 and 14. Therefore, in our opinion, considerations which have been expressly made material and relevant by the provisions of Section 14 cannot to the same extent and in the same manner be invoked in dealing with applications which fall to be decided only Under Section 5 without reference to Section 14. (page 771).
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 995 of 2021.
Decided On: 19.03.2021
Government of Maharashtra (Water Resources Department) Vs. Borse Brothers Engineers & Contractors Pvt. Ltd.
Hon'ble Judges/Coram:
Rohinton Fali Nariman, B.R. Gavai and Hrishikesh Roy, JJ.
Author: Rohinton Fali Nariman, J.
Citation: (2021)6 SCC 460,2021SCCONLINE SC 233, MANU/SC/0195/2021.
Read full Judgment here : Click here.
Print PageThe expression "in respect of" is of, wider connotation than the word "in". Section 400, therefore, includes within its scope not only references and revisions (covered by Chap. XXX), but all other incidental and ancillary matter also. The application Under Section 5 of the Indian Limitation Act filed along with the revision in question was undoubtedly an ancillary matter and it was, therefore, open to the Sessions Judge to transfer that application and the defective revision to the Court of Sri K. P. Asthana for disposal. If, therefore, Sri K. P. Asthana decided that application and admitted the revision, he cannot be said to have done anything wrong. He had full jurisdiction to, pass the order which he passed. This revision is misconceived and must, therefore fail. Accordingly I reject it.
IN THE HIGH COURT OF ALLAHABAD
Decided On: 01.03.1978
Ram Newaz and Ors. Vs. Chabi Nandan Pandey and Ors.
Hon'ble Judges/Coram:
V.N. Varma, J.
Citation: 1978 Cri. L. J. 632(All), MANU/UP/0392/1978.
Print PageIt, however, appears that the respondents contended that the revision petition was barred by limitation. Even this contention is founded on a very technical ground that even though the revision petition was filed very much in time the requisite power of attorney of the learned advocate on behalf of the petition was not legally complete and when it was re-submitted the limitation had expired. Without going into the nicety of this too technical contention, we may notice that Section 397 of the CrPC enables the High Court to exercise power of revision suo motu and when the attention of the High Court was drawn to a clear illegality the High Court could not have rejected the petition as time barred thereby perpetuating the illegality and miscarriage of justice. The question whether a discharge order is interlocutory or otherwise need not detain us because it is settled by a decision of this Court that the discharge order terminates the proceedings and, therefore it is revisable under Section 397(1), Cr. PC and -Section 397(1) in terms confers power of suo motu revision on the High Court, and if the High Court exercises suo motu revision power the same cannot be denied on the ground that there is some limitation prescribed for the exercise of the power because none such is prescribed. {Para 5}
IN THE SUPREME COURT OF INDIA
Criminal Appeal No. 136 of 1981
Decided On: 11.02.1981
Municipal Corporation of Delhi Vs. Girdharilal Sapuru and Ors.
Hon'ble Judges/Coram:
A.N. Sen and D.A. Desai, JJ.
Author: D.A. Desai, J.
Citation: MANU/SC/0189/1981,AIR 1981 SC 1169.
Print Page(A) REGARDING THE TERMS USED AS 'CHILDREN'S COURT' AND 'COURT OF SESSIONS'
In view of above discussions, it is clear that order rejecting an application for condonation of delay is not a decree. Consequently, dismissal of an appeal as time barred is also not a decree. Since second appeal is maintainable against a decree and not against an order, therefore, both the second appeals, which are directed against orders dismissing the appeals as time barred, are not maintainable, the same are liable to be dismissed as not maintainable and are hereby dismissed as not maintainable with no order as to costs. {Para 13}
IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)
S.B. Civil Second Appeal Nos. 472 of 2009 and 54 of 2010
Decided On: 22.02.2011
State of Rajasthan and Ors. Vs. Rajpal Singh Chauhan
Hon'ble Judges/Coram:
N.K. Jain, J.
Citation : AIR 2011 Raj 101, MANU/RH/0446/2011
Print PageWhat is held by the Division Bench of Delhi High Court in Farhan Sheikh‟s case (supra) is condensed in para (89) of the judgment which reads thus:
“89. Thus, so far as the constitution of NIA is concerned, it a complete code. However, the same cannot be said about the substantive offences, and the procedural laws which would be applicable for the purpose of investigation and conduct of trial of such offences. To the extent that Section 16 of the NIA Act prescribes powers of Special Courts, the same would prevail. However, in respect of matters not dealt with under the Act relating procedures, and the substantive offences, it is the provisions of the Code and the substantive laws enumerated in the schedule to the Act, which would be relevant. Even if, the Act is considered to be complete Code in so far as it provides the right of appeal, in the light of the aforesaid discussion, we are inclined to hold that the prescription of limitation in Section 21(5) of the NIA Act is directory and not mandatory and that the High Court is empowered to entertain and consider application under Section 5 of the Limitation Act seeking condonation of delay in filing the appeal. The said application is maintainable”.
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
CrlA(D) No. 46/2022 ,CrlM No. 1474/2022
National Investigation Agency Through Its Chief Investigating Officer, Jammu Vs Mr. Vishal Sharma, DSGI.
CORAM:
HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON’BLE MR. JUSTICE MOHAN LAL, JUDGE
Author: Sanjeev Kumar, J.
Pronounced on 13..12.2022.
Read full Judgment here: Click here
Print PageThe point that arises for determination is, whether NIA Act, in particular Section 21 whereof expressly excludes the application of Sections 4 to 24 of the Limitation Act for determining the period of limitation for filing an appeal under NIA Act. One view is that by providing for condonation of delay after the expiry of 30 days‟ period prescribed for filing appeal, but not beyond 90 days from the date of judgment, sentence or order appealed from, the application of Section 5 of the Limitation Act is expressly excluded. The other view is that exclusion of Sections 4 to 24 must be express and not by necessary implication. We are, however, inclined to go by the later view. This is because Section 21 of the NIA Act has no where specifically excluded the application of Sections 4 to 24 (inclusive) for determining the period of limitation prescribed for filing appeal under Section 21 of the Act. There is, of course, similar provision in first proviso to Section 21(5) which gives discretion to the High Court to entertain an entertain an appeal after expiry of period of limitation of 30 days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within a period of 30 days. However, second proviso to Section 21(5) of the Act ordains that no appeal shall be entertained after the expiry of period of 90 days. {Para 19}
20 Having regard to the object of the NIA Act and the right of the accused to fair trial, the word “shall” used in second proviso to Section 21(5) of the Act deserves to be read as “may”, else the right of appeal given to the accused against his conviction would become a causality if the doors of the Appellate Court are shut to him on the ground of limitation. The right to fair trial is a right vested in the accused under Article 21 of the Constitution. The right of appeal, wherever it is provided, is a matter of substance and essentially a remedial right. If this remedy is put in jeopardy by creating bar of limitation and leaving no discretion in the Court to condone the delay even in well deserving cases, it would render the remedy otiose. We, therefore, cannot put any construction or interpretation on a provision that has the effect of taking away the fair trial right of the accused. It is in this context, we must hold that right of the accused to avail the remedy of appeal is a substantive and concomitant right of fair trial. This is in this background, the Delhi High Court in the case of Farhan Sheikh vs. State (National Investigation Agency), 2019(7) AD (Delhi) 233, has taken the view that the word “shall” used in second proviso to Section 21(5) shall be read as “may” and that the second proviso is directory in nature. The Court further observed that the High Court shall have the discretion to condone the delay in appropriate cases even after expiry of period of 90 days. The Delhi High Court rightly did not agree to lift and apply decisions based on the interpretation of civil provisions, rendered in the context of civil and taxing statutes.
35 We have already held that the provisions of second proviso to sub-section 5 of Section 21 of the Act are directory in nature and, therefore, an application for condonation of delay under Section 5 of the Limitation Act is maintainable.
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
CrlA(D) No. 46/2022 ,CrlM No. 1474/2022
National Investigation Agency Through Its Chief Investigating Officer, Jammu Vs Mr. Vishal Sharma, DSGI.
CORAM:
HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON’BLE MR. JUSTICE MOHAN LAL, JUDGE
Author: Sanjeev Kumar, J.
Pronounced on 13..12.2022.
Read full Judgment here: Click here
Print PageIn view of what we have discussed herein above we answer the question referred to us as under:-
"The Police can seek permission to remove an accused from judicial custody to police custody for completion of investigation in another case and for this purpose production warrant under Section 267 CrPC. can be issued. The expression "other proceeding" used in Section 267(1) and "for the purpose of any proceedings" occurring in Section 267(1)(a) would include "investigation" as defined under Section 2(h) CrPC.{Para 31}
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
CrlA(D) No. 46/2022 ,CrlM No. 1474/2022
National Investigation Agency Through Its Chief Investigating Officer, Jammu Vs Mr. Vishal Sharma, DSGI.
CORAM:
HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON’BLE MR. JUSTICE MOHAN LAL, JUDGE
Author: Sanjeev Kumar, J.
Pronounced on 13..12.2022
Print PageThe cases of delay in re-filing are different from cases of delay in filing inasmuch as, in such cases the party has already evinced its intention to take recourse to the remedies available in courts and has also taken steps in this regard. It cannot be, thus, assumed that the party has given up his rights to avail legal remedies. However, in certain cases where the petitions or applications filed by a party are so hopelessly inadequate and insufficient or contain defects which are fundamental to the institution of the proceedings, then in such cases the filing done by the party would be considered non est and of no consequence. In such cases, the party cannot be given the benefit of the initial filing and the date on which the defects are cured, would have to be considered as the date of the initial filing. A similar view in the context of Rules 1 & 2 of Chapter IV of the Delhi High Court (Original Side) Rules, 1967 was expressed in Ashok Kumar Parmar v. D.C. Sankhla: MANU/DE/0672/1994 : 1995 RLR 85, whereby a Single Judge of this Court held as under:-
Looking to the language of the Rules framed by Delhi High Court, it appears that the emphasis is on the nature of defects found in the plaint. If the defects are of such character as would render a plaint, a non-plaint in the eye of law, then the date of presentation would be the date of re-filing after removal of defects. If the defects are formal or ancillary in nature not effecting the validity of the plaint, the date of presentation would be the date of original presentation for the purpose of calculating the limitation for filing the suit. {Para 16}
IN THE HIGH COURT OF DELHI
FAO (OS) 485-86/2011
Decided On: 07.11.2013
Delhi Development Authority Vs. Durga Construction Co.
Hon'ble Judges/Coram:
Badar Durrez Ahmed and Vibhu Bakhru, JJ.
Author: Vibhu Bakhru, J.
Citation: MANU/DE/4933/2013
Print PageBefore we part with the present appeal, another disconcerting aspect of this case that comes to the fore is SEBI's attempt to cherry-pick the documents it proposes to disclose. There is a dispute about the fact that certain excerpts of the opinion of Justice (Retd.) B.N. Srikrishna, were disclosed to the Appellant herein. It is the allegation of the Appellant that while the parts which were disclosed, vaguely point to the culpability of the Appellant, SEBI is refusing to divulge the information which exonerate it. Such cherry-picking by SEBI only derogates the commitment to a fair trial. In Nea Karteria Maritime Co. Ltd. v. Atlantic and Great Lakes Steamship Corporation, [1981] Com LR 138 at 139, Mustill J. held as under:
I believe that the principle underlying the Rule of practice exemplified in Burnell v. British Transport Commission MANU/UKWA/0012/1955 : [1956] 1 QB 187 is that where a party is deploying in court material which would otherwise be privileged, the opposite party and the court must have an opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood.
The aforesaid principle is often referred to as the 'Cherry-picking' principle. {Para 57}
58. In the case at hand, SEBI could not have claimed privilege over certain parts of the documents and at the same time, agreeing to disclose some part. Such selective disclosure cannot be countenanced in law as it clearly amounts to cherry-picking.
IN THE SUPREME COURT OF INDIA
Criminal Appeal No. 1167 of 2022
Decided On: 05.08.2022
Reliance Industries Limited Vs. Securities and Exchange Board of India and Ors.
Hon'ble Judges/Coram:
N.V. Ramana, C.J.I., J.K. Maheshwari and Hima Kohli, JJ.
Author: N.V. Ramana, C.J.I.
Citation: MANU/SC/0965/2022
Print PageThe learned Judicial Magistrate did not apply his mind on the said averments. It did not issue any notice upon the appellant to show cause as to why the delay shall not be condoned. Before condoning the delay the appellant was not heard. In State of Maharashtra Vs. Sharadchandra Vinayak Dongre and Others [(1995) 1 SCC 42] this Court held; "5. In our view, the High Court was perfectly justified in holding that the delay, if any, for launching the prosecution, could not have been condoned without notice to the respondents and behind their back and without recording any reasons for condonation of the delay. However, having come to that conclusion, it would have been appropriate for the High Court, without going into the merits of the case to have remitted the case to the trial court, with a direction to decide the application for condonation of delay afresh after hearing both sides. The High Court however, did not adopt that course and proceeded further to hold that the trial court could not have taken cognizance of the offence in view of the application filed by the prosecution seeking permission of the Court to file a "supplementary charge- sheet" on the basis of an "incomplete charge-sheet" and quashed the order of the CJM dated 21-11-1986 on this ground also. This view of the High Court, in the facts and circumstances of the case is patently erroneous."{Para 9}
10. In view of the aforesaid decision, there cannot be any doubt whatsoever that appellant was entitled to get an opportunity of being heard before the delay could be condoned.
In that view of the matter, the period from
15.03.2020 till 28.02.2022 shall have to be excluded for
the purposes of limitation as may be prescribed under any
General or SPECIAL LAWS in respect of all judicial or
quasi-judicial proceedings. The Commercial Courts Act,
2015 being a Special Law, the said order shall also be
applicable with respect to the limitation prescribed
under the Commercial Courts Act, 2015 also.
In view of the above and for the reasons stated
above and more particularly when the 120 days period
expired in the present case on 09.05.2020 which was
during the aforesaid period as prescribed by this Court
in the aforesaid order, the High Court ought to have
excluded the aforesaid period for the purpose of filing
the written statement and ought to have permitted to
take the written statement on record. The impugned
judgment and order passed by the High Court refusing to
condone the delay and take on record the written
statement is hereby quashed and set aside. It is directed
that the written statement, already filed, be taken on
record and the same be considered in accordance with law.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2022
(@ Special Leave Petition (C) No. 2522/2022)
BABASAHEB RAOSAHEB KOBARNE & ANR. Vs PYROTEK INDIA PRIVATE LIMITED & ORS.
Dated: MAY 09, 2022
Print PageThe delay condonation application is a miscellaneous judicial proceeding and it is to be decided on the basis of the evidence led by the parties before the Court. The regular procedure is to record the evidence of the parties by way of examination-in-chief and cross-examination. However, such procedure can be dispensed with by the Court if the Court desires to exercise powers under Order XIX, Rule 1 of the Code of Civil Procedure, 1908. In that eventuality the Court has to pass an order to that effect. Order XIX, Rule 1 of the Civil Procedure Code is to the following effect:
1. Power to order any point to be proved by affidavit.--Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable. Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit.{Para 5}
6. Thus, the Court can read the evidence led by way of the affidavit after having recorded the sufficient reasons for accepting such affidavits and, if no such order is passed by the Court, the Court is under obligation to follow the regular procedure of recording the evidence by way of examination-in-chief and cross-examination. In the present matter, it is further noticed that none of the parties have filed pursis informing the Court that the evidence is closed by either side. Thus, it is transpired that the matter is disposed of simply on the basis of the pleadings of the parties without recording of evidence in the Court and/or obtaining evidence as per Order XIX, Rule 1 of the Code of Civil Procedure, 1908. In the absence of pursis of the parties that they do not intend to lead evidence and/or they have closed evidence, it was inappropriate on the part of the First Appellate Court to dispose of the matter on the basis of the pleadings of the parties simpliciter. Therefore, on this aspect of the matter, the order passed by the First Appellate Court suffers from a procedural drawback and requires to be set aside. It is accordingly set aside. However, since the matter was disposed of without following the procedure as discussed above, it has become necessary to remand the matter to the First Appellate Court to decide the delay condonation application after recording evidence of the parties in the Court and/or by way of affidavit after passing an order under Order XIX, Rule 1 of the Code of Civil Procedure, 1908.
Bombay High Court
Equivalent citations: 2006 (44) MhLj 80
Print Page