R.B.Bhvaneswari  INSC 59 (13 January 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION S.L.P.(C)..../2008 (CC 15251-15252/2008)
VERSUS IA1(C/DELAY IN FILING SLP ) ORDER The present special leave petition has
been filed by the petitioner (original plaintiff) against the judgment and final
Order dated 18.9.2006 passed by the Madras High Court in CRP(NPD) No. 896/06.
Subsequent to the passing of the impugned Order dated 18.9.2006 in CRP No.
896/06, the petitioner herein filed Review Application No. 85/07. This
application was filed in time prescribed for filing the Review Petition under
the Limitation Act, 1963. However, vide
Order dated 27.3.2008 the said Review Application No. 85/07 stood rejected.
This special leave petition is filed against the main judgment and final Order
dated 18.9.2006 in CRP No. 896/06 on 7.7.2008. In the process, there is a delay
of 568 days in filing the special leave petition against the main judgment and
order dated 18.9.2006. The delay, therefore, in filing this special leave -2-
petition was on account of pendency of Review Application No. 85/07 before the
Madras High Court. Consequently, vide I.A. No. 1 of 2008, the petitioner herein
prays for condonation of delay of 568 days in filing this SLP against the main
judgment and final Order dated 18.9.2006.
When this special
leave petition came for hearing before the earlier Division Bench on
25.11.2008, a query was raised by the Court as to whether prosecution of Review
Proceedings would be sufficient cause for purposes of Section 5 of the
Limitation Act, 1963. This query was raised by the Court because in numerous
matters, this Court finds enormous delay in the filing of special leave
petitions on the ground that the petitioner has been prosecuting review
proceedings on which count there was delay in filing the special leave
petition. There is one more reason why this Court raised the above query. There
is divergence of opinion among Courts whether the prosecution of Review
Proceedings would be sufficient cause at all for purposes of Section 5 of the
Limitation Act, 1963. For this purpose we requested Shri Shyam Diwan, learned
senior counsel, to assist us in answering the query raised hereinabove.
On the question as to
whether the prosecution of a Review Application would be a sufficient cause for
not filing the special leave petition in time for the purposes of Section 5 of
the Limitation Act, 1963 we are of the view that there is -3- a dichotomy
between the appellate jurisdiction of this Court and discretionary jurisdiction
under Article 136 of the Constitution (See: Kunhayammed and Ors. v. State of
Kerala and Anr. reported in (2000) 6 SCC 359). Reading the said judgment, it also
becomes clear that filing of Review Petition is no impediment to the filing of
the special leave petition. Large number of judgments were cited before us by
learned counsel. It is not necessary at this stage to discuss each and every
judgment cited before us for the simple reason that Section 5 of the Limitation
Act, 1963 does not lay down any standard or objective test. The test of
"sufficient cause" is purely an individualistic test. It is not an
objective test. Therefore, no two cases can be treated alike. The statute of
Limitation has left the concept of "sufficient cause" delightfully
undefined, thereby leaving to the Court a well-intentioned discretion to decide
the individual cases whether circumstances exist establishing sufficient cause.
There are no categories of sufficient cause. The categories of sufficient cause
are never exhausted. Each case spells out a unique experience to be dealt with
by the Court as such.
For the aforestated
reasons, we hold that in each and every case the Court has to examine whether
delay in filing the special leave petition stands properly explained.
This is the -4- basic
test which needs to be applied. The true guide is whether the petitioner has acted
with reasonable diligence in the prosecution of his appeal/petition. In
exercise of discretion under Article 136 to decide whether delay should be
condoned or not, this Court is not bound by considerations applicable to an
Appellate Court but nonetheless general principles which would weigh with the
Appellate Court in determining sufficient cause can be the guiding
factor/guideline. Therefore, it cannot be stated as a proposition per se that
the prosecution of Review Proceedings would not be a sufficient cause at all
for purposes of Section 5 of the Limitation Act, 1963.
In the present case,
as stated above, what is challenged is the main judgment and Order dated
18.9.2006. As stated above, I.A. No. 1 of 2008 is for condonation of delay in
filing the special leave petition. It is important to note that the Review
Application was filed within time in April, 2007, therefore, it was duly
numbered. The High Court re-examined the entire case after issuing notice to
the respondent herein (defendant).
In view of what is
stated above, we now direct the office to list the present matter for admission
along with I.A. No. 1 of 2008 on 16.2.2009.
We hereby record our
appreciation for the assistance rendered by learned Amicus Curiae, Shri Shyam
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