The provision of section 5 and the observations
made by the Apex Court show that there are two
considerations in section 5 of the Limitation Act. The
provision needs to be considered from both the angles
mentioned by the Apex Court. So far as the construction of
expression “sufficient cause” is concerned, the law is well
settled. Section 5 does not require a “good cause” but
requires “sufficient cause” which is something more than
good cause. The expression “sufficient cause” is not
defined but it is laid down by various Courts that it must
mean a cause which is beyond the control of the party
invoking the section. Any cause which prevents the parties
approaching the Court within time is sufficient. Here only
it needs to be observed that the cause must have arisen
within prescribed time and the cause must have continued
beyond that. In ascertaining cause, the test of reasonable
burden
in
this
man in normal circumstance needs to be applied. The
regard
rests
on
the
party
seeking
condonation of delay. He needs to discharge it by
adducing evidence.
The Apex Court has laid down that the purpose
of provision is to advance substantial justice and so the
Court
using
discretion
whether denying
must
prima
facie
ascertain
of relief would amount to frustrating
meritorious case and denying substantial justice. As care
needs to be taken in this regard, it can be said that the
expression “sufficient cause” is widely elastic. In one case,
a ground may not be acceptable as sufficient ground for
condonation of delay but the same ground in other case,
in view of facts and circumstances of that case, may be a
valid ground for condonation of delay. In one case if Court
that the party seeking condonation
has arguable
finds
case, there is prima facie merit in the matter, the Court
may hold on the basis of explanation given by the party
that sufficient cause is shown. In other case even when
the ground is the same, if Court finds that condoning the
delay would unnecessarily cause harassment to the other
side, it will be defeating the interests of justice, the party
applying for condonation has is no arguable case, the
Court may refuse to condone the delay.
The provision of section 5 of the Act has given
discretionary power to the Court and the party applying
for condonation has no right as such. In a case the party
applying for condonation of delay may be in a position to
show “sufficient cause” and there may be a ground in that
regard which cannot be disputed. However, in such a case
also the Court has to exercise discretion judiciously and
the exercise must be to advance substantial justice. The
Court is expected to give reasons for refusing to condone
the delay or for giving relief of condonation of delay. This
needs to be done in systematic manner as observed above.
The reasons must be on the grounds mentioned to make
out sufficient cause and there must also be reasons on the
point of prima facie merits of the case and bona fides.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No.198 of 2013
Chandrakant s/o Laxman Kulbhaiyya
And Another.
Versus
Appellants.
The State of Maharashtra & Others.
CORAM: T.V. NALAWADE, J.
DATE
: 14th MARCH 2014
Citation: 2015(1)ABR72, 2014(5)ALLMR609, 2014(6)BomCR231
This appeal is filed against the judgment and
order of MARJI No.172/2008 which was pending in the
Court of the District Judge-4, Aurangabad. The application
was filed by the present appellant for condonation of delay
of more than 1 year and 8 months caused in filing Regular
Civil Appeal against the decision given by the trial Court
in a suit filed for relief of injunction. Both the sides are
heard.
2) Regular Civil Suit No.831 of 2003 was filed by
present appellants
against
the
respondents.
The
respondents include officers of the Survey Department
and officers of the Municipal Council, Paithan. The other
defendant are said to be neighbours of the plaintiffs. The
suit was filed in respect of house property bearing Nos.
1856 to 1859 having size of 60 x 49 ft situated at
Kaherwada, Taluka Paithan. Relief of perpetual injunction
was sought by the appellants and it is refused by the trial
Court. There are allegations against the officers of the
Survey Department and the Municipal Council that they
created false record in favour of defendant Nos.3 and 4,
neighbours, by joining hands with them.
3)
It is the case of the appellants/plaintiffs that
Laxman and Ghanshyam were the owners of the suit
property and after their demise the plaintiffs have become
owner of the suit property. They contended that in the
past, Bansi, the predecessor of defendant Nos.3 and 4 and
had filed Regular Civil Suit No.54 of 1963 for
Hiraman
the possession of the aforesaid property against Laxman
and Ghanshyam and the suit was dismissed by the Court.
It is contended that the defendant Nos.3 and 4 have no
concern whatsoever with the title and possession of the
4)
suit property.
It is the case of the defendant Nos.3 and 4 that
their predecessors, Bansi and Hiraman, were the owner
of the suit property. It is contended that in city survey
record also there were names of Bansi and Hiraman and
after their demise, the names of defendant Nos.3 and 4
are entered
in the record of the city survey and
assessment record created by the Municipal Council. It is
contended that in the past Bansi and Hiraman had filed a
suit against Ghanshyam and Laxman for possession of the
suit property and the suit was decided in favour of Bansi
and Hiraman. It is contended that possession was actually
handed over to their predecessors and so they are in
possession as owners.
The trial Court considered the record of previous
5)
suit like Regular Civil Suit No.54 of 1963 and also the
decision given by the First Appellate Court in Regular
Civil Appeal No.108 of 1964. The Lower Appellate Court
decreed the suit of Bansi and Hiraman though the suit was
dismissed by the trial Court and this decision has become
final. As per the decision of the First Appellate Court,
possession of the suit property was handed over to Bansi
and Hiraman. The judgment of the trial Court shows that
the present appellants admitted that defendant Nos.3 and
4 have made construction over this property. The record
prepared by city survey office and
municipal
the officers
of the
council is also considered by the trial Court
and the suit is dismissed.
6)
In the application filed for condonation of
delay, the present appellants had contended before the
District Court that there was sufficient cause for not filing
appeal in time. They contended that the period prescribed
for filing appeal was 90 days and they had applied for
certified copy immediately after the decision of the suit. It
is contended that certified copy was supplied to them on
1-3-2006. They contended that as petitioner No.2 was
suffering from heart disease and he was hospitalized as
indoor patient he could not take steps for filing appeal. It
was contended that petitioner No.1 was serving at other
station and so he could not take steps for filing appeal.
contended
that
delay
was
not
caused
intentionally.
Defendant Nos.3 and 4, present respondents,
7)
the
They
contested the proceeding by contending that no sufficient
cause was shown. They further contended that the actual
delay was of 22 months and 4 days and not as claimed by
the present appellants.
8)
The
District
Court
has
considered
the
circumstance like present appellant No.1 was in service.
The District Court
has considered the
contention that
appellant No.2 / plaintiff No.2 was suffering from heart
disease. It is observed that when appellant No.1 was in
service he was attending the duty, it is not open to him to
say that there was some reason for him not to file appeal
in time. In respect of petitioner No.2/appellant No.2 it is
observed that no convincing record is produced even to
show that he was hospitalized for 4 to 5 months. It is
observed that even if it is presumed that he was
hospitalized for 4 to 5 months,
he has not offered
explanation with regard to the remaining period.
With
these observations the application filed for condonation of
delay is dismissed.
In the present proceeding a copy of judgment
9)
delivered in Regular Civil Appeal No.108 of 1964 and copy
of possession record prepared in execution proceeding
bearing
No.75/1966
submitted
by
the
came
learned
to
be
counsel
produced.
for
the
It
was
original
defendant Nos.3 and 4 that the matter was already
decided in the year 1966 and possession was also handed
over in 1966 and there was no reasons for filing the suit
again.
On the other hand, learned counsel for the
appellants submitted that the dispute involved is in
respect of immovable property and the First Appellate
Court ought to have held that sufficient cause is shown.
Learned counsel for the appellants has placed reliance
on a case reported as 2008 AIR SCW 5692 (Sate (NCT of
In this case, while dealing with
Delhi) v. Ahmed Jaan.
criminal appeal, the Apex Court observed that if the
explanation offered for delay is plausible, it needs to
considered. It is observed that, “sufficient cause” should
receive liberal construction.
As the explanation offered
was not considered, the Apex Court decided in favour of
the applicant. However, it is also laid down by the Apex
Court that hard and fast rules cannot be laid down to
ascertain as to what constitutes “sufficient cause”.
There cannot be dispute over the proposition
10)
made by the Apex Court in the case cited supra. It is true
that, the Court is expected to receive liberal construction.
In most of the cases, the Courts are not considering the
other
important
point,
whether
the
condonation
is
necessary to advance substantial justice. Condonation of
delay in many cases unnecessarily causes harassment to
the other side and it is found that in many cases the
guiding principles laid down by the Hon'ble Apex Court
are not followed. To remind those principles
it has
become necessary to discus the principles, law laid down
by the Apex Court.
Section 5 of the Limitation Act runs as under :-
11)
“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 prescribe 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.
12)
Explanation.-- The fact that the appellant or the
applicant was misled by any order, practice or
judgment of the High Court in ascertain or
computing the prescribed period may be sufficient
cause within the meaning of this section.”
In Section 5 at two places the word “may” is
used. This shows that the Curt has discretionary power in
this regard. Section 5 further shows that the party seeking
extension of prescribed period is required to satisfy the
Court that he had sufficient cause for not preferring the
appeal/application and that arose within such period and
continued thereafter. Thus, existence of sufficient cause is
a condition for use of discretion by the Court.
13)
In the case reported as AIR 1962 SC 361 (V 49
C 56) (Ramlal v. Rewa Coalfields Ltd.), the Apex Court
has laid down that in construing this section two
important considerations should be followed viz (a) that
the expiration of the period of limitation prescribed for an
appeal gives rise to a right in favour of the decree holder
to treat the decree as binding between parties and this
right, which has accrued to the decree holder by lapse of
should not be lightly disturbed; and, (b) that if
time
sufficient cause for causing delay is shown, discretion is
given to the Court to condone the delay and admit the
appeal. This discretion has been conferred on the Court in
order that judicial power and discretion in that behalf
should be exercised to advance substantial justice.
14)
The provision of section 5 and the observations
made by the Apex Court show that there are two
considerations in section 5 of the Limitation Act. The
provision needs to be considered from both the angles
mentioned by the Apex Court. So far as the construction of
expression “sufficient cause” is concerned, the law is well
settled. Section 5 does not require a “good cause” but
requires “sufficient cause” which is something more than
good cause. The expression “sufficient cause” is not
defined but it is laid down by various Courts that it must
mean a cause which is beyond the control of the party
invoking the section. Any cause which prevents the parties
approaching the Court within time is sufficient. Here only
it needs to be observed that the cause must have arisen
within prescribed time and the cause must have continued
beyond that. In ascertaining cause, the test of reasonable
burden
in
this
man in normal circumstance needs to be applied. The
regard
rests
on
the
party
seeking
condonation of delay. He needs to discharge it by
adducing evidence.
The Apex Court has laid down that the purpose
15)
of provision is to advance substantial justice and so the
Court
using
discretion
whether denying
must
prima
facie
ascertain
of relief would amount to frustrating
meritorious case and denying substantial justice. As care
needs to be taken in this regard, it can be said that the
expression “sufficient cause” is widely elastic. In one case,
a ground may not be acceptable as sufficient ground for
condonation of delay but the same ground in other case,
in view of facts and circumstances of that case, may be a
valid ground for condonation of delay. In one case if Court
that the party seeking condonation
has arguable
finds
case, there is prima facie merit in the matter, the Court
may hold on the basis of explanation given by the party
that sufficient cause is shown. In other case even when
the ground is the same, if Court finds that condoning the
delay would unnecessarily cause harassment to the other
side, it will be defeating the interests of justice, the party
applying for condonation has is no arguable case, the
Court may refuse to condone the delay.
The provision of section 5 of the Act has given
16)
discretionary power to the Court and the party applying
for condonation has no right as such. In a case the party
applying for condonation of delay may be in a position to
show “sufficient cause” and there may be a ground in that
regard which cannot be disputed. However, in such a case
also the Court has to exercise discretion judiciously and
the exercise must be to advance substantial justice. The
Court is expected to give reasons for refusing to condone
the delay or for giving relief of condonation of delay. This
needs to be done in systematic manner as observed above.
The reasons must be on the grounds mentioned to make
out sufficient cause and there must also be reasons on the
point of prima facie merits of the case and bona fides. In
the case like present one, when there was no cause of
action for the suit and the matter was
already decided
finally, the Court is not expected to use discretion in
favour of the party applying for condonation of delay. In
such a case the delay does not deserve to be condoned.
The District Court has not touched the rival contentions
to ascertain prima facie merits of the case. However, the
District Court has not committed error in dismissing the
application filed by the present appellants.
17)
As a general rule, the Appellate Court is not
expected to interfere with the discretion exercised by the
lower Court in allowing or rejecting the application for
condonation of delay, unless it appears that the Court has
not exercised at all the discretion
or the Court has not
exercised the power on aforesaid judicial principles. This
Court is considering the matter in second appeal and this
Court has no hesitation to observe that in second appeal
such interference is possible only in exceptional cases.
In view of the facts and circumstances, this
18)
Court holds that no arguable case is made out, no
sufficient cause is shown and there is no possibility of
interference in the decision given by the District Court.
In the result, the appeal stands dismissed.
Sd/-
(T.V. NALAWADE, J.)
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