(1.) The Court: Certain submissions made on behalf of the applicant when the application for condonation of delay was taken up for consideration have prompted us to take a closer look at the provisions of section 5 of the Limitation Act and its application to the application and appeal filed by the applicant.
(2.) In order to appreciate the submissions made, the provisions of section 5 of the aforesaid Act are reproduced hereinbelow: Extension of prescribed period in certain cases: Any appeal or any application, other than an application under any of the provisions of Order 21 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.
(3.) Mr. Dipak Deb, learned counsel, appearing in support of the application, submitted before us that in making an application under section 5 of the Limitation Act a party was not required to explain the cause of delay within the period prescribed by limitation and that it had consistently been held by the Courts, and in particular the Hon'ble Supreme Court, that such explanation was required to be given only in respect of the last day on which the appeal was required to be filed and thereafter. According to Mr. Deb, since the law of limitation allows a litigant to file an application or an appeal within a particular period, no explanation is required to be given for the period comprising such period and that having regard to the wording of section 5 of the aforesaid Act the cause of delay only for the period after the prescribed period of limitation was required to be explained.
(4.) In support of his said submission Mr. Deb firstly referred to and relied on a decision of this Court in the case of Karali Charan Sarma v. Apurba Krishna Bajpayi and Ors, reported in AIR 1931 Calcutta 298, which was the decision of a learned Third Judge on a difference between the two Judges hearing the matter.
(5.) Graham, J. [as His Lordship then was] was of the view that the words of the section required cause to be shown not for any particular period but for the entire period and if no explanation whatever was forthcoming why the appeal was not filed during the major portion of the period of limitation, an explanation designed merely to explain why it was not filed on the last day before it became time barred, would be insufficient.
(6.) Mitter, J., the learned second Judge, took a different view and observed that in the circumstances of the case the antecedent inaction or negligence of the appellant should not at all be taken into account. His Lordship went on to observe that the law allowed the appellant 90 days' time to file the appeal and if he filed the appeal on the 91st day, he was only required to explain how the delay of one day should be accounted for.
(7.) In view of such difference between the two learned Judges the question was referred to Suhrawardy, J. [as His Lordship then was]. The learned third Judge agreed with the view expressed by Mitter, J. and observed as follows: The question is what is the meaning of the words 'within such period'. To my mind it means 'within the period which ends with the last day of the prescribed period' that is to say before the expiration of the last day for limitation. If the legislature intended that the defaulting party should satisfy the Court that he was unable for valid reasons to present the appeal during the whole of the 90 days one would expect it to have used the words during such period instead of 'within such period' or some other opposite expression.
(8.) His Lordship also observed that one could not insist that a party must file his appeal before the last day for filing it and that there must be some reason for the legislature to have fixed various periods of limitation for various reliefs sought from Court and these periods have been fixed with a view to made it convenient for the aggrieved party to seek redress from Court.
(9.) Mr. Deb urged that the aforesaid majority view was approved in a subsequent decision of the Hon'ble Supreme Court in the case of Ram Lal v. Rewa Coalfields Ltd.; reported in AIR 1962 SC 361 [LQ/SC/1961/244] , wherein the effect of the expression 'within such period' used in section 5 of the Limitation Act, was explained to mean the period after the period prescribed by statute.
(10.) Mr. Deb also referred to another decision of the Hon'ble Supreme Court in the case of Sitaram Ramcharan and Ors. v. M.N. Nagrashana; reported in AIR 1960 SC 260 [LQ/SC/1959/174] , which, in our view, covers a slightly different field. In the said decision, the Hon'ble Supreme Court observed that in dealing with the question of condoning delay under section 5 of the Limitation Act the party has to satisfy the Court that he had sufficient cause for not preferring the appeal or making the application within the prescribed time and this has always been understood to mean that the explanation has to cover the whole of the period of delay. The Hon'ble Supreme Court went on to observe that the contention that if sufficient cause had been shown for not making the application within the period prescribed, then the application could be made any time thereafter, was not correct. In fact, in our view, the decision seems to go against the submissions made by Mr. Deb and the decisions cited by him.
(11.) Mr. Deb thereafter made submissions from a different angle relating to sufficiency of cause and the meaning of such expression as explained and interpreted by the Hon'ble Supreme Court in various cases.
(12.) In this regard, Mr. Deb firstly referred to the decision in the case of The State of West Bengal v. The Administrator, Howrah Municipality and Ors; reported in AIR 1972 SC 749 [LQ/SC/1971/659] , wherein the Hon'ble Supreme Court observed that the expression 'sufficient cause' should be given a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party.
(13.) The said principle has consistently been followed by the Hon'ble Supreme Court in most subsequent cases with a little variation here and there. For example, in the case of State of Haryana v. Chandra Mani and Ors.; reported in AIR 1996 SC 1623 [LQ/SC/1996/235 ;] ">AIR 1996 SC 1623 [LQ/SC/1996/235 ;] [LQ/SC/1996/235 ;] , it was observed that a pragmatic approach in the justice oriented process should be adopted, particularly in cases where the State is an applicant praying for condonation of delay.
(14.) Likewise, in the case of G. Ramegowda (Major) v. The Special Land Acquisition Officer, Bangalore; reported in AIR 1988 SC 897 [LQ/SC/1988/166] , it was observed that the law of limitation, is no doubt the same for a private citizen as for Governmental authorities, but a somewhat different complexion is imparted to a matter where the Government makes out a case that the public interest would suffer owing to acts of fraud or bad faith on the part of its officers or agents.
(15.) In Collector, Land Acquisition, Anantnag and Anr. v. Mst. Katiji and Ors.; reported in AIR 1987 SC 1353 [LQ/SC/1987/214] , it was observed in the same tone as in the case of the Administrator, Howrah Municipality [supra], that the Legislature has conferred the power to condone delay by enacting section 5 of the Indian Limitation Act, 1963, in order to enable the Courts to do substantial justice to parties by disposing of matters on merits. The expression sufficient cause employed by the Legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice, that being the life-purpose for the existence of the institution of the Courts.
(16.) While on the question, we may also refer to the Bench decision of this Court in the case of State of West Bengal v. West Bengal Judicial Service Association and Anr., reported in 1990(2) CLJ page 73, wherein it was observed that the Government will have to be treated as a favoured litigant, particularly when the Department was manned by persons who are highly interested in seeing that the Writ Petition succeeded.
(17.) On the aforesaid note Mr. Deb submitted that the Courts were required to take a pragmatic approach to the entire matter, and, in fact, if the delay for which the party could not file his appeal and/or application on the last date of the prescribed period of limitation was sufficiently explained, as also the period thereafter till the date of filing of the application and the appeal, the Court, following the decisions cited hereinabove, ought to ensure that justice was done between the parties.
(18.) Having regard to the serious nature of the point involved in this matter and also having regard to the stereo-typed and slip-shod explanation normally given by the authorities of the Government in explaining the delay in not filing appeals not only within time but even long thereafter, we requested Mr. R.N. Bajoria to assist us as Amicus Curiae to arrive at a just and proper decision in the matter.
(19.) Mr. Bajoria's submissions, while taking note of the various decisions cited by Mr. Deb, favours the view which had initially been taken by Graham, J. In support of his submissions Mr. Bajoria referred to a decision of the Hon'ble Supreme Court in a criminal matter, to which reference had also been made by Mr. Deb, viz., Ajit Singh and Thakur Singh v. State of Gujarat, reported in AIR 1981 SC 733 [LQ/SC/1981/16] , which was in fact a criminal appeal preferred against an order passed by the Gujarat High Court refusing to entertain an appeal from an order of acquittal.
(20.) Mr. Bajoria referred to the observations made by Pathak, J. (as His Lordship then was) that it was true that a party was entitled to wait until the last date of limitation for filing an appeal, but when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause shown must establish that because of some events or circumstance arising before limitation expired it was not possible to file the appeal within time.
(21.) Mr. Bajoria urged that the expression used in connection with the expression within such period, must mean to include the period prescribed by limitation.
(22.) The decision relied upon by Mr. Deb in support of his first contention that no explanation was required to be given for the period comprising the period of limitation, apparently supports Mr. Deb's submissions. The only discordant note appears to have been sounded by the Hon'ble Supreme Court in the case of Ajit Singh Thakur Singh (supra) and Sitaram v. M.N. Nagrashana (supra).
(23.) However, as cautioned by the Hon'ble Supreme Court in the case of Vedabai v. Shantaram Baburao Patil, AIR 2001 SC page 2582, in dealing with an application under section 5 of the Limitation Act no strait jacket formula can be followed. On the other hand, each case has to be treated on its own merits and having regard to its own set of facts keeping in mind the fact that the principle of advancing substantial justice is of prime importance.
(24.) In the case of Karali Charan Sarma (supra), the appellant had handed over all the necessary papers for filing and appeal to his learned Advocate within the period of limitation, but owing to a mistake committed by the learned Advocate the appeal was filed one day after the said period.
(25.) Similarly, in the case of Ramlal v. Rewa Coal Fields (supra) the appeal was filed one day after the period of limitation on account of the fact that Ramlal, who was in charge of the case, had fallen ill on the last date for filing the appeal.
(26.) In our view, the facts of the said two cases indicate that the views expressed were in the context that the litigants were prevented from some cause from filing the appeal on the last date of the period of limitation and consequently there was no need to explain the whole of the earlier period which had lapsed.
(27.) As noticed hereinbefore, in the case of Sitaram Ramcharan (supra) the Hon'ble Supreme Court observed that the whole of the period of delay was required to be explained, which to us would indicate even the period prescribed by the law of limitation.
(28.) In our view, any explanation sought to be given for the delay in filing the appeal or application beyond the period of limitation would have to be considered in the facts of each case, particularly when the cause of delay for the period subsequent to the prescribed period of limitation has to be linked with the period during the period of limitation.
(29.) In our view it would be rather impractical to expect the Governmental authorities as litigant to start explaining the cause of delay from the last date of limitation prescribed and thereafter without linking the cause of delay to the earlier period. In most of the cases referred to by Mr. Deb on the question of sufficient cause, the Courts have treated the Government with some indulgence having particular regard to the delays caused by the bureaucratic methodology imbued with note-making, file pushing and passing on the buck ethos.
(30.) It may not be out of place to mention that even in this case the appellants have tried to explain the cause of delay for the period covering the period prescribed by limitation, which Mr. Deb very fairly submitted was required to be done if one had to explain the future delay.
(31.) We, therefore, are of the view that what is really indicated in the various decisions cited and in section 5 of the Limitation Act itself, is that a litigant would be required to explain why the appeal and/or application could not be filed within the period prescribed by limitation and explain the delay for such period for the purpose of linking up the circumstances which had caused the delay during the period of limitation and thereafter.
(32.) We wish to record our appreciation for the assistance rendered by Mr. Bajoria in helping us to arrive at a decision in the matter.
(33.) Having regard to the views expressed hereinabove and the views expressed in the various decisions cited by Mr. Deb, we are inclined to hold that sufficient cause has been made out for explaining the delay of 108 days in presenting the appeal. The application for condonation of delay is accordingly allowed and the delay in presenting the appeal is condoned. Let the appeal now be registered, if otherwise in form, and be listed for admission next Friday i.e. 8th August, 2003. All parties are to act on a xeroxed certified copy of this judgment on the usual undertakings. Application allowed
