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Section 5 in The Limitation Act, 1963
Section 10 in The Limitation Act, 1963
Section 10 in The General Clauses Act, 1897
Collector Land Acquisition, ... vs Mst. Katiji & Ors on 19 February, 1987
The Representation of the People Act, 1951

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Delhi High Court
Vinita Saxena vs Pankaj Pandit on 12 September, 2003
Equivalent citations: 17 (2003) DLT 44, II (2003) DMC 506
Author: S Mahajan
Bench: S Mahajan

JUDGMENT S.K. Mahajan, J.

1. This order will dispose of the application of the appellant under Section 5 of the Limitation Act for condensation of delay in filing the appeal. A few facts giving rise to this appeal are :

The appellant had filed a petition under Section 13(1)(ia)(iii) of the Hindu Marriage Act for dissolution of marriage by a decree of dicorce. That petition was dismissed by the Matrimonial Court vide its judgment dated 19th March, 2001. The judgment of the Matrimonial Court has now been challenged by filing an appeal by the appellant on 5th April, 2002. There is a delay of 355 days in filing the appeal. This application is, therefore, filed for condensation of this delay.

2. The appellant was married to the respondent on 7th February, 1993. Alleging that the marriage was not consummated as the respondent was incapable of consummating the same and alleging cruelty, the appellant filed petition on or about June 30, 1994 seeking dissolution of marriage by a decree of divorce. After filing the petition, the appellant pursued her studies and completed her MS (Structural Engineering) from Indian Institute of Technology, Delhi in 1995 and the following year she left for a Ph.D. programme to USA and stated to have completed her Ph.D. in December, 2000. The appellant got her degree in June, 2001 and is stated to be in USA thereafter. It was alleged in the application that she had continued her stay in USA on a practical training visa which allegedly imposes restrictions to travel outside USA. The impugned judgment dismissing the petition filed by the appellant was passed on 19th March, 2001. It is alleged that the appellant came to know of the order only by the end of March, 2001 and since she was in USA and was not in a position to come to India to take recourse to necessary legal proceedings, the appellant requested her aged father to seek further legal advice and take such further steps as may be deemed appropriate to protect her interest. The appellant's father allegedly contacted the lawyer who was conducting the trial and sought his advice. It is alleged that the lawyer told the father of the appellant that he would like to examine the matter and asked him to come after some days; that despite regular follow-up, the Counsel after almost about 2-3 months of waiting told the father of the appellant that he should discuss the matter with some other lawyer as he would not like to continue with the case. It is alleged that totally disappointed and dejected by such a response, the father of the appellant contacted her and apprised her of the facts. After seeking certain references, the appellant's father met Mr. Nageshwar Pandey, Advocate who took his own time to examine the matter and after about a month or so expressed his inability to take up the brief. After receiving negative response from Mr. Pandey, the father of the appellant contacted one Mr. Ashok Kumar Srivastav, Advocate who after an appropriate briefing advised that an appeal should be filed in the High Court of Delhi. It is alleged that Mr. Srivastav was requested to do the needful, however, after 3 to 4 weeks he also expressed his inability since he found it difficult to conduct matters in the High Court and was not in a position to depart from his normal routine practice. In this process, almost seven months were wasted but the appellant did not get any proper guidance or legal remedy. It is alleged that in the month of October/November, 2001 appellant's father met Mr. Ved Prakash Sharma, Advocate who after studying the matter immediately guided him to prefer an appeal and for this purpose he advised him to get service of a lawyer practicing in the Delhi High Court. When requested to give certain references, he after about a week or so suggested a name. On meeting the said lawyer, the appellant's father was not very happy as he was not in a position to take up the matter immediately, though the urgency was appreciated. The appellant in the meantime contacted her father and allegedly been conscious of his old age and on account of her helplessness in coming to India to pursue the matter, the appellant's father contacted one Mr. Hariharan, Advocate in the month of November/ December, 2001. He also advised the appellant's father to engage a Counsel to file appeal but he expressed his inability to handle the matter in the High Court of Delhi and also advised him to contact a lawyer practicing in the Delhi High Court. It was only in February, 2002 that the appellant contacted her father and requested him to contact Mr. Sushil Dutt Salwan, Advocate who was made available the records on 25th February, 2002. The Counsel, it is submitted, thereafter took assistance of a medical Doctor and sought details about the respondent's illness and then drafted the appeal and filed the same in this Court.

3. On the above facts, it is averred in the application that the appellant was prevented by sufficient cause from filing the appeal in time and there was sufficient cause to condone the delay in filing the same.

4. The application is contested by the respondent. Reply to the application has been filed and it is stated that the reasons given in the application that a competent lawyer could not be found were totally vague, baseless and after-thought and the same were not bona fide. It is stated in the reply that the appellant could not take the plea that she was not in a position to come to India to file appeal in view of the nature of her job as the appeal has been filed by her father on the basis of a power of attorney executed by her and the same could have been filed by him even within the period of limitation.

5. In support of her application, it is contended by learned Counsel for the appellant that as the appellant was in USA and it was not possible for her to come to India, she had been pursuing the matter while sitting in the USA and her father being an aged person could not spend sufficient time in pursuing the case. It is also the contention of Mr. Salwan, learned Counsel for the appellant, that despite the father of the appellant having contacted quite a few Advocates, he could not find any satisfactory reply from any one of them and the lawyers who were engaged refused to file appeal in the High Court of Delhi and advised him to engage a Counsel practicing in the High Court of Delhi. It is submitted that three of the Counsel who had advised the father of the appellant have filed affidavits in support of what has been averred in the application and there is no reason not to believe the affidavits of the said Advocates. It is submitted that the expression sufficient cause should receive a liberal construction so as to advance substantial justice and where the application does not lack bona fide and there is no deliberate inaction on the part of the appellant, the Court should condone the delay in filing the appeal. It is submitted that marriage between the parties lasted only for five months and they are living separately for the last about ten years and it would be, therefore, in the interest of justice that the appeal filed by the appellant is decided on merits and is not thrown away on the technical ground of the same being barred by limitation. Mr. Salwan, in support of his contentions, has relied upon the judgments reported as Collector, Land Acquisition, Anantnag v. Mst. Katiji and Ors., ; Devendra Swamy v. Karnataka State Road Transport Corporation, AIR 2002 SC 2545; M.K. Prasad v. P. Arumugam, ; a Full Bench judgment of the Gujarat High Court reported as Municipal Corporation of Ahmedabad v. Voltas Limited and etc., ; Radha Krishna Rai v. Allahabad Bank and Ors., (2000) 9 SCC 733; N. Balakrishnan v. M. Krishnamurthy, ; and Subramanla Achary v. Smt. Sathyabama and Anr., 1995 Crl.L.J. 1211 (Madras).

6. On behalf of the respondent, however, it is argued by Mr. Taneja that the law of limitation may affect a party but the period of limitation cannot be extended on equitable grounds. It is submitted that for condensation of delay, the appellant is required to explain each day's delay and unless each day's delay is explained, the Court should not condone the delay in filing the appeal. In support of his contentions, he has relied upon the judgments reported as P.K. Ramachandran v. State of Kerala and Anr., ; Union of India and Anr. v. Sunit Kumar Chatterjee, 1971 Rajdhani Law Reporter 25; Lachhman Das Arora v. Ganeshi Lal and Ors., ; DDA v. Ramesh Kumar, 1996 RLR (Note) 89; Antonysami v. Arulanandam Pillai and Anr., ; and State of Haryana v. Chandra Mani and Ors., .

7. In Collector, Land Acquisition, Anantnag v. Mst. Katiji and Ors. (supra), it was held by the Supreme Court that the Legislature has conferred the power to condone delay by enacting Section 5 of the Limitation Act 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 Courts. It was held that it was common knowledge that the Supreme Court has been making a justifiably liberal approach in matters instituted in that Court but the message did not appear to have percolated down to all the other. Courts in the hierarchy. It was held that such a liberal approach is adopted on principles as it Was realised that:

"(1) Ordinarily a litigant does not stand to benefit by lodging an appeal late.

(2) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice beign defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

(3) "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

(4) When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

(5) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

(6) It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."

8. From a reading of the Supreme Court judgment, it is clear that while considering the application for condensation of delay, the Courts should make a justifiably liberal approach 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 Courts.

9. In M.K. Prasad v. P. Arumugam (supra), the Supreme Court was considering a matter where there was a delay of 554 days in filing an application for setting aside ex parte decree. The Trial Court dismissed the application on the ground that delay of 554 days was not explained. The revision filed in the High Court was also dismissed. The order of the High Court was challenged by filing the appeal in the Supreme Court. While dealing with the question of limitation, the Supreme Court observed that in construing Section 5 of the Limitation Act, the Court has to keep in mind that discretion in the section has to be exercised to advance substantial justice. The Court has a discretion to condone or refuse to condone the delay as is evident from the words 'may be admitted' used in Section 5 of the Limitation Act. Relying upon the observations of the Supreme Court is State of West Bengal v. Administrator, Howrah Municipality, and G. Ramegowda, Major v. Special Land Acquisition Officer, , it was held that the expression 'sufficient cause' in Section 5 of the Limitation Act must receive a liberal construction so as to advance substantial justice and generally delays be condoned in the interest of justice where gross negligence or deliberate inaction or lack of bona fide is not imputable to the party seeking condensation of delay. It was held that law of limitation has been enacted to serve the interests of justice and not to defeat it. Acceptability of explanation for the delay is the sole criterion and length of delay is not relevant. In the absence of anything showing mala fide or deliberate delay as the dilatory tactics, the Court should normally condone the delay. However, in such a case, the Court should also keep in mind the constant litigation expenses incurred or to be incurred by the opposite party and should compensate him accordingly. It was held that it is axiomatic that condensation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the Superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refused to condone the delay. In such cases, the Superior Court would be free to consider the cause shown for the delay afresh and it is open to such Superior Court to come to its own finding even untrammelled by the conclusion of the lower Court.

10. On the facts of the above case, the Supreme Court held that even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigate him as an irresponsible litigant. He should have been more vigilant but on his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable. While deciding the application for setting aside ex parte decree, the Court should keep in mind the judgment impugned, the extent of the property involved and the stake of the parties. The Supreme Court was of the view that the inconvenience caused to the respondent for the delay on account of the appellant being absent from the Court can be compensated by awarding appropriate and exemplary costs.

11. In N. Balakrishnan v. M. Krishnamurthy (supra), it was held that it was axiomatic that condensation of delay was a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay was within a certain limit. Length of delay does not matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explantion whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory.

Once the Court accept the explanation sufficient, it is the result of positive exercise of discretion and normally the Superior Court should not disturb such finding, much less in revisional jurisdiction unless the exercise of discretion was on wholly untenable grounds or arbitray or perverse. In every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to trun down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not putforth as a dilatory strategy, Court must show utmost consideration to the suitor as the refusal to condone the delay would result in foreclosing a suitor from putting forth his case. There is no presumption that delay in approaching the Court is always deliberate. The word "sufficient cause" in Sections of the Limitation Act should receive a liberal construction so as to advance substantial justice.

12. In Lachhman Das Arora v. Ganeshi Lal and Ors. (supra), referred to by learned Counsel for the respondent it is no doubt held that the law of limitation has to be applied with all its vigour when the statute so prescribes and the Courts cannot extend the period of limitation on equitable grounds. This judgment however, was given in a matter relating to elections under the Representation of the People Act, 1951. Under Section 81(1) of the Representation of the People Act, an election petition was required to be filed within a period of 45 days. The elections to the Sirsa Assembly Constituency were held on 10th May, 1996 and the period of 45 days, therefore, expired in the month of June. The High Court was closed for summer vacations between 1st June, 1996 and 30th June, 1996 and the election petition was presented in the Registry on the reopening day of the High Court on 1st July, 1996 and it ws the case of the petitioner that since the Courts were closed for summer vacations, the petition filed on the re-opening day of the Courts was well within time. Reliance for this was placed upon Section 10 of the General Clauses Act to urge that where the Court and the office is closed on the day when an act is directed to be done, the act or proceeding shall be considered to be done or taken in due time if it is taken or done on the next day afterwards on which the Court or office is open provided that nothing in that section shall apply to any act or proceeding to which the Indian Limitation Act applies. The settlement of summer vacations is done by the High Court by issue of notification. While settling the summer vacations and providing therein the manner in which the High Court would function during the summer vacations, the notification provided as under :

"It is hereby notified for general information that the Court of Punjab & Haryana at Chandigarh will be closed for civil business except for hearing election petitions or any other matter arising out of the Representation of the People Act, 1951 urgent civil appeals/petitions etc. including petitions under Article 226 of the Constitution of India on account of long vacations in the year 1996 from 1.6.1996 to 30.6.1996 (both days inclusive). The Court will resume sitting on 1.7.1996 (Monday)."

13. The contention of the party who had filed the petition was that since the Courts were closed from 1.6.1996 to 30.6.1996, the petition filed on the reopening day was within time and in any case in view of Section 10 of the General Clauses Act, the petition would be deemed to have been filed within time as it was filed on the reopening day. The High Court of Punjab & Haryana dismissed election petition on the ground that the same having not been filed within the period of 45 days prescribed under the Act, the same could not be entertained. The order of the High Court was challenged by filing an appeal in the Supreme Court. Besides other contentions, one of the contentions raised in the Supreme Court by the appellant was that under Section 10 of the General Clauses Act where the prescribed period of limitation expires during the vacations of the High Court the petition filed on the reopening day of the Court would be taken to have been filed in time. The Supreme Court dealing with the case observed that proviso to Section 10 made the provisions of Section 10 inapplicable to cases where the Indian Limitation Act applied and since the Indian Limitation Act did not apply to election petitions filed under the Act, Section 10 of the General Clauses Act in term would not apply to the filing of election petitions also. According to Section 10, an act would be considered to have been done within the prescribed period, if it is done on the next day on which the Court or office is open. The applicability of Section 10, however, depends upon the facts of each case and the manner in which the High Court transacts its business during the period of vacations. It was held that since the notification issued by the High Court unambiguously provided that during the vacations the High Court of Punjab & Haryana would remain closed for civil business but it would be open for hearing of election petitions or any other matter arising out of the Representation of the People Act, the election petition ought to have been filed within a period of 45 days and for that purpose the High Court was open. It was held that since the petition was filed on the reopening of the High Court, the same was clearly barred by limitation. It was in this context that the Supreme Court observed that it was not impressed by the argument of learned Counsel for the appellant that in view of the serious charges which were levelled against the returned candidate in the election petition, the same ought not to have been dismissed on the ground of limitation as the purity of the election process is required to be maintained and that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribed. The Supreme Court in that case was not considering the effect of Section 5 of the Limitation Act. This judgment, in my view, will not be applicable to the facts of the present case.

14. In P.K. Ramachandran v. State of Kerala and Anr. (supra), again the Supreme Court on the facts of that case was of the view that no explanation much less a reasonable or satisfactory one was given for condensation of inordinate dealy of 565 days. The judgment was given on the facts of that case and will not be applicable to the facts of the present case. The other judgments cited by learned Counsel for the respondent are also on the facts of those cases and the Court in those cases was of the view that the person seeking condensation of delay was not able to satisfactorily explain the delay and the delay, therefore, could not be condoned.

15. A conjoint reading of all the aforesaid judgments clearly show that while exercising discretion under Section 5 of the Limitation Act, the Courts must pass order to ensure that substantial justice is done to the parties by disposing the matter on merits. The word 'sufficient cause' used in Section 5 of the Limitation Act is to be applied in a meaningful manner which subserves the ends of justice that being the life purpose for the existence of the institution of Courts. A liberal approach should be made by the Courts in deciding applications under Section 5 of the Limitation Act, It is with this background that this Court is to examine whether the appellant has been able to make out a case for condensation of delay in filing the present appeal,

16. Contention of learned Counsel for the respondent is that the appellant ought to have explained each day's delay in filing the appeal and that having not been done, no case was made out for condensation of delay. I am not impressed with the argument. As held by the Supreme Court in Collector, Land Acquisition, Anantnag v. Mst. Katiji and Ors. (supra), "every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay or every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. When substantial justice and technicalities are pitted against each other, cause of substantial justice deserves to be preferred.

17. As already mentioned above, the appellant was not in India all through the period when the delay has been caused in filing the appeal. The father of the appellant who was pursuing this matter is admittedly an old person. He had approached quite a few Advocates to seek legal advice in the matter. He had been trying his best to file the appeal, however, for one reason or the other, the appeal could not be filed, as the Advocates who were contacted expressed their unwillingness to file the appeal in the High Court of Delhi. The application is duly supported not only by the affidavit of the father of the appellant but also by the affidavits of Mr. Hariharan, Advocate, Mr. Ved Prakash Sharma, Advocate and Mr. Nageshwar Pandey, Advocate. They have all deposed on oath as to when the appellant contacted them and the advice tendered by them to him and as to why they could not file the appeal. I do not find any reason not to believe the affidavits filed by three respectable Advocates of Delhi. The explanation given by the appellant as is duly supported by the affidavits of the Advocates who were contacted to file the appeal, in my view, would make out sufficient cause for condensation of delay. To put in the words of the Supreme Court, even though the appellant appeared not to be as vigilant as she ought to have been, yet her conduct does not, on the whole, warrant to castigate her as an irresponsible litigant. She should have been more vigilant but her failure to adopt such extra vigilance is not a ground to oust her from the litigation with respect to her rights which may affect her throughout her life. It is a matter about life of two persons and, in my view, rights of the parties should be decided only on merits and the appellant should not be ousted only on the ground that there is a delay in filing this appeal. Any inconvenience caused to the respondent for the delay in filing the appeal, in my view, can be compensated by awarding appropriate and exemplary costs.

18. For the foregoing reasons and in the interest of justice and in the peculiar facts and circumstances of the case, I allow this application under Section 5 of the Limitation Act and condone the delay in filing this appeal, subject, however, to the payment of Rs. 10,000/- as costs payable to the respondent. Application stands disposed of.