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A Preface to Condonation of Delay

By : Saswat Acharya on 19 April 2009 Report Abuse Print Print this
 



CONDONATION OF DELAY The basis of the principle of condonation of a delay, that has managed to creep into the due process of litigation in any matter, relates to Section 5 of The Limitation Act, 1963. This provision lays down the necessities and requirements of circumstances where the Court can condone a delay in the proceedings. Section 5 of The Limitation Act, 1963 provides as follows: 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 (5 of 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. Explanation - The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section. In New India Insurance Co. Ltd. v. Smt. Shanti Mishra AIR 1976 SC 237, it was held by the SC - The discretion given by Sec. 5 should not be crystallized or defined so as to convert a discretionary matter into a rigid rule of law. The expression “sufficient cause” should receive a liberal construction. In O.P. Kathpadia v. Lakhmir Singh AIR 1984 SC 1744, the SC held that if refusal to condone a delay results in a grave miscarriage of justice, it shall be a ground sufficient to condone the delay. In Ajit Singh v. State of Gujarat AIR 1981 SC 733, the Apex Court held that for “sufficient cause”, a delay in preferring an appeal may be condoned, but in doing so the event or circumstances arising after the expiry of the period of limitation cannot be looked into. The Court may, however, reject an application for condonation of delay but with reasons recorded at the very threshold of the matter and without a notice to the respondent concerned. The very object of the provision of Rule 3A of Order 41 of the CPC, which provides for filing an application for condonation of delay along with the memorandum of appeal, was to see that the question of limitation doesn’t remain lingering till the disposal of the appeal. This view was held by the Gujarat HC in N.A. Shethi v. JC Shaw AIR 1987 Guj 205. However, when there is a delay and no application for its condonation is filed, the appeal is barred by limitation. The very law of limitation is enshrined in the maxim “Interest republicize up sit finis litium” which means “it is for the general welfare that a period be put to litigation”. It envisages the idea that every legal remedy must be kept alive for a legislatively fixed period of time. In Collector, Land Acquisition v. Mst. Katiji (1987) 2 SCC 107, the Apex Court laid down the several aspects of condonation of delay :- 1. A litigant should not benefit by lodging a late appeal. 2. A refusal to condone may result in a meritorious matter being thrown out at the very threshold and consequently, the cause of justice may be defeated. 3. The doctrine must be applied in a rational and pragmatic manner and a pedantic or dull approach should be avoided. 4. When substantial justice and technical considerations are pitted against each other, the former should be given a preference over the latter. The other side cannot claim a vested right in injustice merely because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately or mala fide. A litigant should not stand to benefit by resorting to delay. He actually runs a serious risk to his cause. 6. It is not that judiciary is respected on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice. A similar view has been held in N. Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123. The Supreme Court condoned a delay of 883 on a sufficient cause. It held that the length of the delay is not a matter, but the acceptance of the explanation of the delay is the only criterion. The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The rules of limitation are not meant to destroy the rights of the parties but to see that the parties do not resort to dilatory tactics and seek remedy for redressal of their legal injury. The Court further held that the time limit fixed for approaching the court in different situations is not to allow, on the expiry of such time, a bad cause to transform into a good one. Thus, it was laid down that the law of limitation was founded on public policy. Thus, the law of limitation U/s. 5 of the Limitation Act in regard to condonation of delay lays down that there should be a sufficient reason attached to the delay caused and it should be taken into account that the rejection of an application for condonation of a delay should not be detrimental to the interests of justice and equity.
Source : All India Reporter, SCC Online, Manupatra, "The Limitation Act" by Mr.B.B. Mitra,



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