Ramlal, Motilal and Chhotelal Vs. Rewa
Coalfields Ltd.  INSC 211 (4 May 1961)
CITATION: 1962 AIR 361 1962 SCR (3) 762
CITATOR INFO :
R 1968 SC 222 (4) R 1972 SC 749 (29) R 1988 SC
Limitation-Condonation of delay in filing
appeal-Period for which delay to be explained Indian Limitation Act, 1908 (Act
IX of 1908) s. 5.
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 conduct 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,
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.
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
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 preceded
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 theJudicial 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
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 prescribed
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 considerations 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 sufficient
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
something 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 consideration 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.
772 there is no difficulty in holding that
the discretion should be exercised in favour of the appellant because 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 appellant'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
discretion 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