PETITIONER: RAMLAL, MOTILAL AND CHHOTELAL Vs. RESPONDENT: REWA COALFIELDS LTD. DATE OF JUDGMENT: 04/05/1961 BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. WANCHOO, K.N. CITATION: 1962 AIR 361 1962 SCR (3) 762 CITATOR INFO : R 1968 SC 222 (4) R 1972 SC 749 (29) R 1988 SC 897 (7) ACT: Limitation-Condonation of delay in filing appeal-Period for which delay to be explained Indian Limitation Act, 1908 (Act IX of 1908) s. 5. HEADNOTE: In an application under s.5 of the Indian Limitation Act for condonation of one day's delay in filing an appeal, the question arose whether the appellant had to explain his con- duct during the whole period prescribed for filing the appeal or he has to explain the delay between the last day for filing the appeal and the date on which the appeal was actually filed. Section 5 of the Limitation Act lays down that an appeal may be admitted after the period of limitation if the appellant shows sufficient cause for not preferring the appeal "within such period". Held, that it would be irrelevant to invoke general considerations such as diligence of the appellant in construing the words of s.5. The expression "within such period" does not mean during such period and the failure of the appellant to account for his non-diligence during the whole period of limitation does not disqualify him from praying for condonation of delay. In showing sufficient cause for condoning the delay the appellant has to explain the whole of the delay covered by the period between the last day of limitation and the date on which the appeal was actually filed. Krishna v. Chattappan, (1890) I.L.R. 13 Mad. 267, referred to. Karalicharan Sarma v. Apurbakrishna Bajpeyi, (1931) I.L.R. 58 Cal. 549, approved. Kedarnath v. Zumberlal A.I.R. 1916 Nag. 39 and Jahar Mal v. G. M. Pritchard A.I.R. 1919 Pat. 503, disapproved. Ram Narain Joshi v. Parmeshwar Narain Mehta (1902) L. R. 30 I.A. 20, not applicable. Indar Singh v. Kanshi Ram (1917) L. R. 44 T. A. 218, referred to. JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 276 of 1958.
Appeal from the judgment and decree dated August 6, 1955, of
the, Judicial Commissioner’s court, at Rewa, V. P. in First
Civil Appeal No. 16 of 1955.
763
S. N. Andley, Rameshwar Nath and P. L. Vohra, for the
appellants.
D. N. Pathak, R. Mahalingier and B. C. Mishra, for the
respondent.
1961. May 4. The Judgment of the Court was delivered by
GAJENDRAGADKAR, J.-The short question which falls to be
considered in this appeal relates to the construction of s.
5 of the Indian Limitation Act IX of 1908. It arises in
this way. The respondent Rewa Coalfields Limited is a
registered company whose coal-mines are situated at Burhar
and Umaria. Its registered office is at Calcutta. The
appellant is a firm, Chaurasia Limestone Company, Satna,
Vindhya; Pradesh, by name and the three brothers Ramlal,
Motilal and Chhotelal are its partners. The appellant
prepares and deals in limestone at Maihar and Satna and for
the use in their lime-kilns it purchased coal from the
respondent’s coal-mines at Umaria by means of permits issued
to it by Coal Commissioner Calcutta. According to
respondent’s case the appellant purchased from it 3,307 tons
of coal at the rate of Rs. 14-9-0 per ton between January
1952, and March 1953. The price for this coal was Rs.
48,158-4-0. Since the appellant did not pay the price due
from it the respondent filed the present suit in-the Court
of the District Judge, Umaria, and claimed a decree for Rs.
52,514-14-0 including interest accrued due on the amount
until the date of the suit.
A substantial part of, the respondent’s claim was disputed
by the appellant. It was urged by the appellant in its
written statement that the amount claimed by the respondent
had been arbitrarily calculated and that for a substantial
part of the coal purchased by the appellant from the
respondent due price had been paid. The appellant pleaded
that for some time past it had stopped purchasing coal ‘from
the respondent and it was
764
obtaining its supplies from Messrs Sood Brothers, Calcutta,
to whom payments for the coal supply had been duly made.
The appellant admitted its liability to pay Rs.7,496-11-0
and it expressed its readiness and willingness to pay the
said amount.
On these pleadings the learned trial judge framed seven
issues. It appears that on the date when the respondent led
its evidence and the appellant’s turn to lead its evidence
arrived an application for adjournment was made on its
behalf to produce additional evidence which was granted on
condition that the appellant should pay to the respondent
Rs. 200/- as costs. On the subsequent date of hearing,
however, the appellant did not appear nor did it pay costs
to the respondent as ordered. That is why the trial Court
proceeded ex-parte against the appellant. On the issues
framed trial Court made findings in favour of the respondent
in the light of the evidence adduced by the respondent and
an ex-parte decree was passed against the appellant to the
tune of Rs. 52,535-7-0 with proportionate costs. The
appellant was also ordered to pay interest at 6% per annum
from October 6,1953, which was the date of the suit until
the date of payment. This decree was passed on November 9,
1954.
Against this decree the’ appellant preferred an appeal in
the Court of the Judicial Commissioner, Vindhya Pradesh,
Rewa, on February 17, 1955 (Appeal No. 16 of 1955). The
main contention raised by the appellant in this appeal was
that the ex-parte decree should be set aside and the case
remanded to the trial Court with the direction that the
appellant should be allowed to lead its evidence and the,
case disposed of in accordance with law in the light of the
said evidence. On February. 19, 1955, the appellant filed
an application under s. 5 of the Limitation Act and prayed
that one day’s
765
delay committed by it in filing the appeal should be
condoned because Ramlal, one of the partners of the
appellant’s firm, who was in charge of the limitation.,
fell ill on February 16, 1955, which was the last date for
filling the appeal. This application was supported by an
affidavit and a medical certificate showing that Ramlal was
ill on February 16, 1955. The learned Judicial
Commissioner, who heard this application, appears to have
accepted the appellant’s case that Ramlal was ill on
February 16 and that if only one day’s delay bad to be
explained satisfactorily by the appellant his illness would
constitute sufficient explanation; but it was urged. before
him by the respondent that the appellant bad not shown that
its partners were diligent during the major portion of the
period of limitation allowed for appeal, and since they put
off the filing of the appeal till the last date of the
period of Limitation the illness of Ramlal cannot be said to
be sufficient cause for condoning the delay though it was
only one day’s delay. On the other hand, the appellant
urged that it had a right to file the appeal on the last day
and so the. delay of one day which it was required to
explain by sufficient reason had been satisfactorily
explained. The learned-Judicial Commissioner, however,
accepted the plea raised by the respondent and in substance,
refused to excuse delay on the ground that the appellant’s
partner had showed lack of diligence and negligence during
the *hole of the period of Limitation allowed for the
appeal. It is on this ground that the application for
condonation of delay was rejected and the appeal was
dismissed on August 6, 1955.
The appellant then applied to the Judicial Commissioner for
a certificate and urged that on the question of construction
of s. 5 of the Limitation Act there was a conflict of
judicial opinion’ and so the point decided by the Judicial
Commissioner was one of general importance. This argument
was accepted by the- Judicial Commissioner
766
and so a certificate of fitness has been issued by him under
Art. 133 of the Constitution. It is with this certificate
that the appellant has come to this Court, and the only
point which has been urged on its behalf is that the
Judicial Commissioner was in error in holding that in
determining the question as to whether sufficient cause bad
been shown within the meaning of s. 5 of the Limitation Act
it was necessary for the appellant to explain his conduct
during the whole of the period prescribed for the appeal.
Section 5 of the Limitation Act provides for extension of
period in certain cases. It lays down, inter alia, that any
appeal may be admitted after the period of limitation
prescribed therefore when the appellant satisfies the Court
that he had sufficient cause for not preferring the appeal
within such period.’ This section raises two questions for
consideration. First is, what is sufficient cause; and the
second, what is the meaning of the clause “within such
period”? With the first question we are not concerned in
the present appeal. It is the second question which has
been decided by the Judicial Commissioner against the
appellant. He has held that “within such period” in
substance means during the period prescribed for making the
appeal. In other words, according to him, when an appellant
prefers an appeal beyond the period of limitation prescribed
he must show that he acted diligently and that there was
some reason which prevented him from preferring the appeal
during the period of limitation prescribed. If the Judicial
Commissioner had held that “within such period” means “the
period of the delay between the last day for filing the
appeal and the date on which the appeal was actually filed”
he would undoubtedly have come to the conclusion that the
illness of Ramlal on February 16 was a sufficient cause.
That clearly appears to be the effect of his judgment. That
is why it is unnecessary for us to
767
consider what is “a sufficient cause” in the present appeal.
It has been urged before us by Mr. Andley, for the
appellant, that the construction placed by the Judicial
Commissioner on the words “within such period” is erroneous.
In construing s. 5 it is relevant to bear in mind two
important considerations. The first consideration is that
the expiration of the period of limitation prescribed for
making an appeal gives rise to a right in favour of the
decree-holder to treat the decree as binding between the
parties. In other words, when the period of limitation pres-
cribed has expired the decree-holder has obtained a benefit
under the law of limitation to treat the decree as beyond
challenge, and this legal right which has accrued to the
decree-holder by lapse of time should not be lightheartedly
disturbed. The other consideration which cannot be ignored
is that if sufficient cause for excusing delay is shown
discretion is given to the Court to condone delay and admit
the appeal. This discretion has been deliberately conferred
on the Court in order that judicial power and discretion in
that behalf should be exercised to advance substantial
justice. As has been observed by the Madras High Court in
Krishna v. Chattapan (1) “s. 5 gives the Court a discretion
which in respect of jurisdiction is to be exercised in the
way in which judicial power and discretion ought to be
exercised upon principles which are well understood; the
words “sufficient cause’ receiving a liberal construction so
as to advance substantial justice when no negligence nor
inaction nor want of bona fide is imputable to the
appellant.”
Now, what do the words “within such period” denote ? It is
possible that the expression ‘,within such period” may
sometimes mean during such period. But the question is:
Does the context in which the expression occurs in s. 5
justify the said interpretation ? If the limitation Act or
any other
(1) (1890) J.L.R. 13 Mad. 269.
768
appropriate statute prescribes different periods of
limitation either for appeals or applications to which s. 5
applies that normally means that liberty is given to the
party intending to make the appeal or to file an application
to act within the period prescribed in that behalf. It
would not be reasonable to require a party to take ‘the
necessary action on the very first day after the cause of
action accrues. In view of the period of limitation
prescribed the party would be entitled to take its time and
to file the appeal on any day during the said period and so
prime facie it appears unreasonable that when delay has been
made by the party in filing the appeal it should be called
upon to explain its conduct during the whole of the period
of limitation prescribed. In our opinion, it would be
immaterial and even irrelevant to invoke general considera-
tions of diligence of parties in construing the words of s.
5. The context seems to suggest that “within such period”
means within the period which ends with the last day of
limitation prescribed. In other words, in all cases falling
under s. 5 what the party has to show is why he did not file
an appeal on the last day of limitation prescribed. That
may inevitably mean that the party will have to show suffi-
cient cause not only for-not filing the appeal on the last
day but to explain the delay made thereafter day by day. In
other words, in showing sufficient cause for condoning the
delay the party may be called upon to explain for the whole
of the delay covered by the period between the last day
prescribed for filing the appeal and the day on which the
appeal is filed. To hold that the expression “within such
period” means during such period would in our opinion be
repugnant in the context. We would accordingly hold that
the learned Judicial Commissioner was in error taking the
view that the failure of the appellant to account for its
non-diligence during the whole of the period of limitation
prescribed for the appeal necessarily disqualified it
769
from praying for the condonation of delay, even though the
delay in question was only for one day; and that too was
caused by the party’s illness.
This question has been considered by some of the High Courts
and their decisions show a conflict on the point. In
Karalicharan Sarma v. Apurbakrishna Bajpeyi(2) it appeared
that the papers for appeal were handed over by the appellant
to his advocate in the morning of the last day for filing
the appeal. Through pressure of urgent work the advocate
did not look into the papers till the evening of that day
when he found that was the last day. The appeal “,as filed
the next day. According to the majority decision of the
Calcutta High Court, in the circumstances just indicated
there was sufficient cause to grant the appellant an
extension of a day under s. 5 of the Limitation Act because
it was held that it was enough if the appellant satisfied
the Court that for sufficient cause he was prevented from
filing the appeal on the last day and his action during the
whole of the period need not be explained. This decision is
in favour of the appellant and is in accord with the view
which we are inclined to take.
On the other hand, in Kedarnath v. Zumberlal(3) the Judicial
Commissioner at Nagpur has expressed the view that an
appellant who wailfully leaves the preparation and
presentation of his appeal to the last day of the period of
limitation prescribed therefore is guilty of negligence and
is not entitled to an extension of time if some unexpected
or unforeseen contingency prevents him from filing the
appeal within time. According to this decision, though the
period covered between the last day of filing and the day of
actual filing may be satisfactorily explained that would not
be enough to condone delay because the appellant would
nevertheless have to how why he waited
(2) (1931)I.R.L 58 Cal 549,
(3) A.I.R. 1916 Nag, 39
770
until the last day. In coming to this conclusion the
Judicial Commissioner has relied substantially on what he
regarded as general considerations. “This habit of leaving
things to the last moment”, says the learned judge, “has its
origin in laxity and negligence, and in my opinion, having
regard to the increasing pressure of business in the law
Courts and the many facilities now available for the
punctual filing of suits, appeals and applications therein,
it is high time that litigants and their legal advisers were
made to realise the dangers of the procrastination which
defers the presentation of a suit, appeal or application to
the last day of the limitation prescribed therefore”. There
can be no difference of opinion on the point that litigants
should act with due diligence and care; but we are disposed
to think that such general consideration can have very
little relevance in construing the provisions of s. 5. The
decision of the Judicial Commissioner shows that be based
his conclusion’ more on this a priori consideration and did
not address himself as he should have to the construction of
the section itself. Apparently this view has been
consistently followed in Nagpur.
In Jahar Mal v. G. M. Pritchard (4) the Patna High Court has
adopted the same line. Dawson Miller, C.J., brushed aside
the claim of the appellant for condonation of delay on the
ground that ‘,one is not entitled to put things off to the
last moment and hope that nothing will occur which will
prevent them from being in time. There is always the
chapter of accidents to be considered, and it seems to me
that one ought to consider that some accident or other may
happen which will delay them in carrying out that part of
their duties for which the Court prescribes a time limit and
if they choose to rely upon everything going absolutely
smoothly and wait till the last moment. I think they have
only themselves to blame if they should find that some
(4) A.I.R. 1919 Pat.503.
771
thing has happened which was unexpected, but which ought to
be reckoned and are not entitled in such circumstances to
the indulgence of the court.” These observations are subject
to the same comment that we have made about the Nagpur
decision(3).
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 s. 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 s. 14 of
the Limitation Act. In dealing with such applications the
Court is called upon to consider the effect of the combined
provisions of ss. 5 and 14. Therefore, in our opinion,
considerations which have been expressly made material and
relevant by the provisions of s. 14 cannot to the same
extent and in the same manner be invoked in dealing with
applications which fall to be decided only under s. 5
without reference to s. 14. In the present case
(3) A.I.R. 1916 Nag. 39.
772
there is no difficulty in holding that the discretion should
be exercised in favour of the appellant be cause apart from
the general criticism made against the appellant’s lack or
diligence during the period of limitation no. other fact had
been adduced against it. Indeed, as we have already pointed
out, the learned Judicial Commissioner rejected the ap-
pellant’s application for condonation of delay only on the
ground that it was appellant’s duty to file the appeal as
soon as possible within the period prescribed, and, that in
our opinion, is not a valid ground.
It now remains to refer to two Privy Council decisions to
which our attention was drawn. In Ram Narain Joshi v.
Parmeshwar Narain Mehta (5), the Privy Council was dealing
with a case where on August 9, 1895 the High Court bad made
an order that the appeal in question should be transferred
to the High. Court under s. 25 of the Code of Civil
Procedure and heard along with another appeal already
pending there. In making this order the High Court had
given liberty to the respondent to make his objections, if
any, to the said transfer. On September 16, 1895 a petition
was filed on behalf of the appellant objecting to the said
transfer; and the’ question arose whether sufficient cause
had been shown for the delay made by the party, between
August 9, 1895 to September 16, 1895. The decree under
appeal had been passed on June 25, 1894 and the appeal
against the said decree had been presented to the District
Judge on September 1894. It would thus be seen that the
question which arose was very different from the question
with which we are concerned; and it is in regard to the
delay made between August 9, 1895 to September 16, 1895 that
the Privy Council approved of the view taken by the High
Court that the said delay had not been satisfactorily
explained. We do not see how this decision can assist us in
interpreting the provisions of s. 5.
(5) (1902) L.R. 30 I.A. 20.
773
The next case on which reliance has been placed by the
respondent is Bri Indar Singh v. K anshi Ram (6). The
Principal point decided in that had reference to 8. 14 read
with 8. 5 of the Limitation Act, 1908; and the question
which it was whether the time occupied by an application in
(food faith for review, although made upon a mistaken view
of the law, should be deemed as added to the period allowed
for presenting an appeal. As we have already pointed out,
when the question of limitation has to be considered in the
light of the combined operation of ss. 14 and 5 of the
Limitation Act the conditions expressly imposed by s. 14
have to be satisfied. It would, however, be unreasonable to
suggest that the said conditions must to the same extent and
in the same manner be taken into account in dealing with
applications falling under s. 5 of the Limitation Act.
It appears that the provisions of s. 5 in the present
Limitation Act are substantially the same as those in s. 5
(b) and s. 5, 1 paragraph 2, of the Limitation Acts of 1871
and 1877 respectively. Section 5A which was added to the
Limitation Act of 1877 by the amending Act VI of 1892 dealt
with the topic covered by the explanation to s. 5 hi the
present Act. The explanation provides, inter alia, that the
fact that the appellant was misled by any order, practice or
judgment of the High Court in ascertaining or computing the
prescribed period of limitation ‘may be sufficient cause
within the meaning of s. 5. The effect of the explanation is
that if the party who has applied for extension of period
shows that the delay was due to any of the facts mentioned
in the explanation that would be treated as sufficient
cause, and after it is treated as sufficient cause the
question may then arise whether discretion should be
exercised in favour of the party or not. In the cases to
which the explanation applies it may be easy for the Court
to decide, that the dis-
(6) (1917) L.R. 44 I.A. 218.
774
cretion should be exercised in favour of the party and delay
should be condoned. Even so, the matter is still one of
discretion. Under s. 5A of the Act of 1877, however, if the
corresponding facts had been proved under the said section
there a pears to have been no discretion left in the Court
cause the said section provided, inter alia, that whenever
it was shown to the satisfaction of the Court that an appeal
was presented after an expiration of the period of the
limitation prescribed owing to the appellant having been
misled by any order, Practice or judgment of the High Court
of the Presidency, Province or District, such appeal or
application, if otherwise in accordance with law, shall for
all purposes be deemed to have been presented within the
period of limitation prescribed therefore. That, however,
is a distinction which is not relevant in the present
appeal.
In the result the appeal is allowed, the delay of one day
made in filing the appeal is condoned, and the case sent
back to the Court of the Judicial Commissioner for disposal
on the merits in accordance with law. In the circumstances
of this case the appellant should pay the respondent the
costs of this Court. Costs incurred by the parties in the
Court of the Judicial Commissioner so far will be costs in
the appeal before him.
Appeal allowed.
775