Delay condonation -sub questions qua appeals and landmark old case and current position

  Delay condonation in appeals is governed mainly by Section 5 of the Limitation Act, 1963, under which an appeal may be admitted after the prescribed period if the appellant shows “sufficient cause” for not preferring it within time. The power is discretionary, applies to appeals and applications, and is not available as a matter of right.

Core position

The first sub-question is: what must the appellant show? The answer is that the appellant must disclose a credible, satisfactory, and bona fide explanation constituting “sufficient cause” for the delay.

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Supreme Court: The revisional court should apply liberal approach while considering the question of limitation in regard to the time barred criminal revision

The Supreme Court noted that the High Court should have exercised its discretion to condone the delay given the “facts and circumstances of the present case.” It found that the interests of justice required the matter to be decided on merits rather than disposed of on a technical ground. Consequently, the Court set aside the High Court’s order and remitted the revision petition for fresh consideration on its substantive merits.

Ratio: Hon’ble Supreme Court observed that criminal revision cannot be dismissed on technical ground like limitation otherwise if the order passed by Lower Court is illegal that illegality will perpetuate and survive if the power of revision is not exercise by the revisional court for technical reason like limitation. The revisional court should apply liberal approach while considering the question of limitation in regard to the time barred criminal revision.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 558 and 559 of 2000

Decided On: 21.07.2000

Shilpa and Ors. Vs. Madhukar and Ors.

Hon'ble Judges/Coram:

G.B. Pattanaik and U.C. Banerjee, JJ.

Citation: 2001 SUPREME 4 4892001 BOMCR SC SUPP 2 498,2001 (1) JIC 588 (SC),MANU/SC/3177/2000

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Supreme Court: Not Necessary To File Separate Application For Delay Condonation Along With Application To Set Aside Ex-Parte Decree

The application under Order 9 Rule 13 CPC

itself had all the ingredients of the application

for condonation of delay in making that

application. Procedure is after all handmaid of

justice.” {Para 13}

12. From the above cases, it is clear that there was no need

to file a separate application for condonation of delay in

the present case as well. The High Court has erred in

taking a hyper technical view and concluding that there

was violation of mandatory provision of law. Endorsing

such a view would effectively mean ignoring the purpose

of judicial procedure. The procedure cannot stand in

the way of achieving just and fair outcome. In the

present case, the Appellant acted bona fide and

diligently. His conduct does not violate any rule of law.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SLP (C.) NO.11259 OF 2022 

DWARIKA PRASAD (D) THR. LRs. Vs  PRITHVI RAJ SINGH.

Author: VIKRAM NATH, J.

Citation:  2024 INSC 1030.

Dated: DECEMBER 20, 2024.

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Supreme Court: Delay Occurred In Filing Criminal Appeal Against Acquittal Under S.378 CrPC Can Be Condoned Under Limitation Act

In the present case, there is no such exclusionary

provision under Section 378 of CrPC, or at any other

place in the Code. The benefit of Section 5 read with

Sections 2 and 3 of the Limitation Act, 1963 can therefore

be availed in an appeal against acquittal. There is no

force in the contentions raised by the appellants as

regards the non-application of Section 5 of the Limitation

Act in the present case and the appeal is therefore

dismissed.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2024

(ARISING OUT OF SLP (CRL.) NO. 2052 OF 2017)

MOHD ABAAD ALI & ANR. Vs DIRECTORATE OF REVENUE PROSECUTION INTELLIGENCE

Author: SUDHANSHU DHULIA, J.

Citation:  2024 INSC 125.

Dated: February 20, 2024.

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Whether delay in filing application U/S 34 of Arbitration can be condoned taking recourse to S 14 of limitation Act?

 Section 14 of the Limitation Act is a hard task master and it should not be set into operation very lightly and in a routine manner. In Madhurao N. Patwardhan v. Ram Kishan MANU/SC/0113/1958 : AIR 1958 SC 767, it was held that the following conditions must be satisfied by the applicant for bringing its case within the four corners of Section 14 of the Act (supra): that he had been prosecuting the previous suit with due diligence and in good faith; that the matter in issue in the previous suit and the new suit are the same; that the Court was unable to entertain that suit on account of defect of jurisdiction or other cause of a like nature. But, in the instant case, none of the above referred conditions have been fulfilled by the applicant by virtue of which the period which has been spent by it in prosecuting the litigation before the other Courts could be excluded. As such, by no stretch of imagination, it can be held that the Section 14 of the Act (supra) is (sic) applicable to the facts of the case.

9. Furthermore, now it is to be seen as to whether there is any scope to condone the delay for preferring the objections by the applicant. The controversy was set at rest by the Hon'ble Supreme Court of India in case Union of India v. M/s. Popular Construction Co. (supra), wherein it was held that the Court cannot condone delay in exercise of its discretion Under Section 5 of the Limitation Act in filing application Under Section 34 of the Act, 1996. Further, in case Senior Executive Engineer v. Minhas Builders MANU/PH/3766/2010 : (2010) 4 CCC 374 (P & H), it was held that where there is delay in filing objections to Arbitration Award then period of limitation cannot be extended even by invoking Section 5 of the Act.

IN THE SUPREME COURT OF INDIA

C.A. No. 5332 of 2017

Decided On: 07.04.2017

Haryana State Cooperative Labour and Construction Federation Ltd. 

Vs.

Unique Cooperative Labour and Construction Cooperative Society Ltd. and Ors.

Hon'ble Judges/Coram:

J.S. Khehar, C.J.I., Dr. D.Y. Chandrachud and Sanjay Kishan Kaul, JJ.

Citation: (2018) 14 SCC 248

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Whether court can refuse to restore suit dismissed in default on ground that plaintiff can file fresh suit?

At the same point of time, this Court, after going through the provisions made under Order 9 Rule 4 of the Code of Civil Procedure and the record of the learned Court below has come to the conclusion that the cause, which the applicant was agitating in the Court below in the Civil Suit is that he is joint owner in possession of the suit land, because he always remains and he could maintain a suit at any time. So far as declaration to the effect that sale deed executed by defendant No. 3 is ineffective at the time of partition that land to that extent will always be deductable from the share of defendant No. 3 and the decree for permanent injunction restraining the defendants from interfering over the suit land on the basis of his title, Plaintiff can always maintain such a suit fresh as it is a continuing cause and so for the redressal of his grievances, the applicant/plaintiff has limitation in his favour and so also cannot be said that his cause will be defeated in case the petition is not allowed.

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Civil Revision No. 151 of 2017

Decided On: 20.08.2018

 Krishan Dass Vs. Ghan Shyam and Ors.

Hon'ble Judges/Coram:

Chander Bhusan Barowalia, J.

Citation: AIR 2018 Himachal Pradesh 151

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Whether court should consider merits of case while deciding application for condonation of delay/

Although, while dealing with the delay condonation matter, normally the court is not supposed to address the merit of the case, if the circumstances so warrant the merit of the case cannot be brushed aside and it is not impermissible in such cases to look into the merit of the matter. Viewed with this angle when I perused the judgment and decree passed by the trial court in RCS No. 98/1978, it is apparently revealed that there is substance in the objection raised by the applicants, i.e. original defendants that the trial court passed the impugned decree without following due process of law and without giving any proper opportunity of hearing to the defendants therein. It is revealed that on the day the evidence of the plaintiff was recorded in the said suit, the counsel for defendants passed 'no instructions' pursis and without following further process in such situation, the trial court passed the decree in favour of the plaintiffs therein on the same day. As has been argued by the learned counsel for the applicants, even the first appellate court did not consider that the defendants were not given any opportunity of adducing their evidence and the decree was passed on the day the plaintiff closed his evidence. The objection so raised by the applicants, in my opinion, deserves consideration. At this juncture though I may not be entering into the merits of the case, prima facie, I am of the opinion that the objections in that regard by the applicants, i.e. original defendants, deserve consideration. 

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Civil Application No. 14168 of 2016 and Civil Application No. 14771 of 2016 in Second Appeal No. 275 of 1988

Decided On: 18.06.2018

Asaram Shivaji Patole Vs Brijmohan

Hon'ble Judges/Coram:

P.R. Bora, J.

Citation: 2018(6) MHLJ 122

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When court can condone delay in filing application U/S 34 of Arbitration Act?

 Considering the object of provisions of Section 34 of the Arbitration Act and in view of absence of conclusive material on record in respect of delivery of service of arbitral award on the appellants, a case is made out by the appellants that they were prevented by sufficient cause from making an application.

21. In view of the above stated facts and circumstances, we find that as the copy of the award was not served on the appellants, the explanation tendered for condoning delay in preparing petition under Section 34 deserves consideration. A party cannot be prevented to resort to statutory remedy if it is established that there was no fault on their part in approaching the Court beyond the prescribed period of limitation or in view of non-compliance of provisions of Section 34 of the Arbitration Act.

In the High Court of Bombay

Ordinary Original Civil Jurisdiction

(Before Naresh H. Patil and G.S. Kulkarni, JJ.)

JSC Ispat Pvt. Ltd. v. M/s. HDB Financial Services Ltd. .

Appeal (L) No. 80 of 2018

In

Notice of Motion (L) No. 2556 of 2015 (for condonation of delay)

In

Arbitration Petition No. 40 of 2018

(Arbitration Petition (L) No. 1814/2015)

With

Notice of Motion (L) No. 130 of 2018 (for stay)

Decided on March 6, 2018

Citation: 2018 SCC OnLine Bom 538

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Whether court should condone delay in filing of written statement even though defendant has failed to satisfactory explanation for delay?

 In such a situation, onus upon the Defendant is of a higher degree to plead and satisfactorily demonstrate a valid reason for not filing the written statement within thirty days. When that is a requirement, could it be a ground to condone delay of more than 5 years even when it is calculated from the year 2009, only because of the reason that Writ of Summons were not served till 2009?

17. We fail to persuade ourselves with this kind of reasoning given by the High Court in condoning the delay, thereby disregarding the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908 and the spirit behind it. This reason of the High Court that delay was condoned 'by balancing the rights and equities' is farfetched and, in the process, abnormal delay in filing the written statement is condoned without addressing the relevant factor, viz. whether the Respondents had furnished proper and satisfactory explanation for such a delay. The approach of the High Court is clearly erroneous in law and cannot be countenanced. No doubt, the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908 are procedural in nature and, therefore, hand maid of justice. However, that would not mean that the Defendant has right to take as much time as he wants in filing the written statement, without giving convincing and cogent reasons for delay and the High Court has to condone it mechanically.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 4266-4267 of 2018

Decided On: 07.05.2018

Atcom Technologies Limited

Vs.

Y.A. Chunawala and Co. and Ors.

Hon'ble Judges/Coram:

A.K. Sikri and Ashok Bhushan, JJ.

Citation:(2018) 6 SCC 639

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A well-educated litigant is expected to be vigilant in pursuing a case filed by or against him

In these presents, the allegation of the appellant/defendant company is that their lawyer has stopped appearing after 10.11.2014 It is also alleged that after the impugned judgment and decree dated 31.08.2015, their lawyer told them that the suit of the respondent/plaintiff company has been dismissed and they requested to supply them copies of order and decree. These allegations are not found mentioned in the complaint lodged with the Bar Council of India. If their lawyer stopped appearing from 10.11.2014, the appellant/defendant company should have contacted their lawyer or engaged some other one in the matter or at least they should have started appearing in person but they did not bother to inquire from their previous counsel as to why he stopped appearing w.e.f 10.11.2014 If they were informed by their counsel after the decision in the suit and copy of order was not supplied, they should have gone to lawyer personally or to court to obtain copies of orders or should have taken assistance of other lawyer. But they were not serious at all.

13. The litigant owes a duty to be vigilant of his rights and is also expected to be equally vigilant about the judicial proceedings pending in the court of law against him or initiated at his instance. The litigant cannot be permitted to cast the entire blame on the Advocate. It appears that the blame is being attributed on the Advocate with a view to get the delay condoned and avoid the decree. After filing the civil suit or written statement, the litigant cannot go off to sleep and wake up from a deep slumber after passing a long time as if the court is storage of the suits filed by such negligent litigants. Putting the entire blame upon the advocate and trying to make it out as if they were totally unaware of the nature or significance of the proceedings is a theory put forth by the appellant/applicant/defendant company, which cannot be accepted and ought not to have been accepted. The appellant is not a simple or rustic illiterate person but a Private Limited Company managed by educated businessmen, who know very well where their interest lies. The litigant is to be vigilant and pursue his case diligently on all the hearings. If the litigant does not appear in the court and leaves the case at the mercy of his counsel without caring as to what different frivolous pleas/defences being taken by his counsel for adjournments is bound to suffer. If the litigant does not turn up to obtain the copies of judgment and orders of the court so as to find out what orders are passed by the court is liable to bear the consequences.

14. In a case before Division Bench of this court in Man Singh (deceased) through L. Rs. v. Gaon Sabha Jindpur, 2012 (4) ILR (Del) 50, it was contended that the appellants were under the bonafide impression that the matter is being properly looked after by the counsel. It was held that the litigant has to be vigilant and he should contact and take part in the proceedings with due diligence and if negligence on the part of the litigant is established in a particular case, then the courts are not to come to the rescue of such applicants. The Division Bench of this court has also cited a decision of the Apex Court, which reads as under:—

“7. The Apex Court in Hameed Joharan v. Abdul Salam, (2001) 7 SCC 573 2001 Ind law SC 21137 made the following observations:—

“……..It cannot but be the general policy of our law to use the legal diligence and this has been the consistent legal theory from the ancient times: even the doctrine of prescription in Roman law prescribes such a concept of legal diligence and since its incorporation therein, the doctrine has always been favoured rather than claiming disfavour. Law courts never tolerate an indolent litigant since delay defeats equity - the Latin maxim vigilantibus et non dormientibus jura subveniunt (the law assists those who are indolent). As a matter of fact, lapse of time is a species for forfeiture of rights……””

In the High Court of Delhi at New Delhi

(Before Vinod Goel, J.)

Moddus Media Pvt. Ltd.v. M/s. Scone Exhibition Pvt. Ltd.

R.F.A 497/2017

Decided on May 18, 2017

Citation:   2017 SCC OnLine Del 8491

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When delay in filing written statement should not be candoned?

In view of decision of the Salil Dutt's case as also after
considering the explanation offered by defendant No.12, I do not
find this is a fit case for exercising powers under Article 227 of the
Constitution   of   India.     As   noted   earlier,   the   suit   was   posted   on
27/02/2015 for pronouncement of judgment.  At that stage, Notice
of Motion was taken out even without enclosing written statement.
The   Motion   was   taken   out   only   by   defendant   No.12   and   by
defendants No. 1 to 11, 13 to 18.  In case of Brijesh Kumar (supra),
the Apex Court has observed that while exercising discretion by the
Court, condition precedent, namely sufficient cause for delay must be
satisfactorily and convincingly explained.  Inordinate delay caused by
inaction or negligence lacking bon fides would dis­entitle claimant
from protection under Section 5 of the Limitation Act, 1963.  In this
present case, in my opinion,  the said decision applies by all fours.
While dismissing the Motion, the learned trial Judge has directed
defendant No.12 to conclude final argument on his side on or before

next date which I am informed is 30/06/2015. 

IN THE HIGH COURT OF JUDICATURE AT MUMBAI
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5343 OF 2015
Mehendara P.Shah … Petitioner
Vs.
Gurupreet Kamaljeet and others … Respondents
        CORAM  : R. G. KETKAR, J.
DATE       :  25th JUNE, 2015
Citation;2016(3) ALLMR142

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Leading case law in respect of condonation of delay

In P.K. Ramachandran v. State of Kerala & Anr., AIR 1998
SC 2276, the Apex Court while considering a case of condonation of
delay of 565 days, wherein no explanation much less a reasonable or
satisfactory explanation for condonation of delay had been given, held
as under:–
“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.”
10. While considering a similar issue, this court in Esha
Bhattacharjee v. Raghunathpur Nafar Academy & Ors. (2013) 12
SCC 649 laid down various principles inter alia:

v) Lack of bona fides imputable to a party
seeking condonation of delay is a significant and
relevant fact
vi) The concept of liberal approach has to
encapsule the conception of reasonableness
and it cannot be allowed a totally unfettered
free play

ix) The conduct, behavior 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.
xvii) The increasing tendency to perceive
delay as a non-serious mater and, hence,
lackadaisical propensity can be exhibited in a

nonchalant manner requires to be curbed, of
course, within legal parameters.”
(See also: Basawaraj v. Land Acquisition Officer (2013) 14 SCC
81)
11. The courts should not adopt an injustice-oriented approach in
rejecting the application for condonation of delay. However the court
while allowing such application has to draw a distinction between
delay and inordinate delay for want of bona fides of an inaction or
negligence would deprive a party of the protection of Section 5 of the
Limitation Act, 1963. Sufficient cause is a condition precedent for
exercise of discretion by the Court for condoning the delay. This
Court has time and again held that when mandatory provision is not
complied with and that delay is not properly, satisfactorily and
convincingly explained, the court cannot condone the delay on
sympathetic grounds alone.
12. It is also a well settled principle of law that if some person has
taken a relief approaching the Court just or immediately after the
cause of action had arisen, other persons cannot take benefit thereof
approaching the court at a belated stage for the reason that they cannot
be permitted to take the impetus of the order passed at the behest of
some diligent person.

Reportable
 IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NOS.6609-6613 OF 2014

Brijesh Kumar  Vs State of Haryana & Ors.

Bench: B.S. Chauhan, J. Chelameswar

Dated;March 24, 2014.

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Whether delay condonation application in appeal can be decided without hearing other side?

In the decision Paras Nath Keshari V. Dwarika Prasad Keshari & Others reported in 2009 (1) AIHC at page 642 and 643, wherein at paragraphs 3 & 4, it is observed and held as follows:
....3. From perusal of the copy of the order sheet it appears that on 18.03.2008 a memo of appeal was filed by the respondent which was registered as Title Appeal No.5/08. After the Court fee stamp was filed and stamp reporting was made the appeal was listed  on 31.03.2008.  On 31.03.2008 the appellate Court condoned the delay in filing the appeal and thereafter admitted the appeal and directing to file process fee.
4. Prima facie either the District Judge is not aware of the procedure to be followed before condonation of delay or he has no elementary knowledge of law.  It is well settled that right of appeal is a creature of statute.  If the appeal is not filed within time provided in law, the appeal becomes barred and a right accrued to the other party.  It is therefore, mandatory for the appellate Court to issue notice and hear the other side before passing the order condoning the delay in filing the appeal.  A person in whose favour right accrued must be given reasonable opportunity of hearing in the limitation matter.  The impugned order, therefore, cannot be sustained in law.  
In the High Court of Judicature at Madras
Delivered on :    26.10.2015
Coram:
Mr.Justice S.MANIKUMAR 
and
 Mr.Justice M.VENUGOPAL

A.S.SR.No.20590 of 2014
and M.P.No.1 of 2015
         in A.S.SR.No.20590 of 2014 
S.Venkataraman Vs. K.S.Balakrishnan (Babu)

Citation: 2016-1-LW245

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Factors to be considered by court while considering application for delay condonation by public body

Again as stated in the case of Collector, Anantnag (AIR 1987 SC 1353) the power to condone delay has been conferred in order to enable the Court to do substantial justice to parties by disposing of matters on merits and, as held in the case of G. Rame-gowda -- "In litigations to which Government is a party, there is yet another aspect which, perhaps, cannot be ignored. If appeals brought by the Government are lost by such defaults, no person is individually affected; but what, in the ultimate analysis, suffers is public interest. ..... .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 the 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. Therefore in assessing what, in a particular case, constitutes 'sufficient cause', it might, perhaps, be somewhat unrealistic to exclude from the considerations that go into the judicial verdict these factors which are peculiar to and characteristic of the functioning of the Government." That answers the second issue referred to us for our consideration and it has to be held that, while considering an application for consideration of delay by a public body; the merits of the main matter should also be considered as a predominant factor.

 For the reasons stated above, I beg to differ with my brothers, M. B. Shah, J. and Y. B. Bhatt, J. and answer the two issues framed in paragraph 4 of this judgment as follows:--

(a) Small delays in the filing of appeals and applications by public bodies should be generally condoned.

(b) While considering an application for condonation of delay filed by a public body, the merits of the main matter should also be considered as a predominant factor.

Gujarat High Court

Municipal Corporation Of ... vs Voltas Limited And Etc. Etc. on 6 May, 1994

Equivalent citations: AIR 1995 Guj 29, (1994) 2 GLR 1325

Bench: M Shah, Y Bhatt, H Gokhale

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Whether S 5 of limitation Act is applicable to Arbitration Appeal?

"Para 11. In my view Sec.34 of the Act itself prescribes the period of limitation for making an application for setting aside an arbitral award as also the time from which such period starts reckoning. As per Art.119(b) of the Limitation Act, 1963, an application to set aside an award under the Act of 1940 could be made within a period of 30 days from the date of the service by the Court of the notice of the filing of the award in the Court. Section 5 of the Limitation Act, 1963, applies where the limitation has been prescribed under the Limitation Act, 1963 itself and since the limitation of three months for filing an application for setting aside an arbitral award has been prescribed under sub-sec.(3) of Sec.34 of the Act and not under the Limitation Act, 1963, Sec.5 of the Limitation Act, 1963 has no applicability and even on `sufficient cause' being shown by the applicant, the Court cannot extend the time-limit for filing such application beyond the maximum period of thirty days provided under the Act
This case discussed the impermissibility of condonation of delay for application for setting aside an award. The petitioner had filed an application for setting aside the award, however, it was not within the stipulated period u/s 34. The petitioner asked for condonation of delay u/Article 5 of the Limitation Act.

It was held that Article 5 of the Limitation Act applies where limitation has been prescribed under the Limitation Act itself and it has no applicability in arbitration cases. Section 34 itself prescribes the period of limitation for making the application for setting aside an award as also the time from which such period starts reckoning. Therefore Article 5 of the Limitation Act has no applicability even on sufficient cause being shown by the applicant.

Gujarat High Court

Jyoti Motors vs Industrial Credit And ... on 15 January, 2002

Equivalent citations: (2002) 4 GLR 3554

K.M. Mehta, J.

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