Report No. 89
Section 5: Extension of The Prescribed Period for Sufficient Cause
5.1. Section 5.- Section 5 empowers the court, for "sufficient cause", to entertain an appeal or application (except an application for execution) filed after expiry of the prescribed period. A number of points require to be considered with reference to this section. The section does not apply to suits.
5.2. Section 5, as stated above, does not apply to suits. We have considered the question whether the section should be amended so as to include within its ambit suits filed after the prescribed period. Delving into the old records relating to the drafting of the Indian Limitation Bill, 1908, we discovered that this question was considered at that distance of time also. When the draft of the Indian Limitation Bill, 1908 was circulated for comments. Dr. Hari Singh Gaur commented1 as under:
"I am not sure if a suit may not be also included in the clause: if the intending plaintiff is wrongfully confined by the defendant, why he should lose his suit? Section 18 'fraud' does not cover such a case."
However, the Divisional Judge, Nagpur,2 was apprehensive that if the ambit of the clause was enlarged, it would lead to unsavoury practices: false grounds were often invented when the litigant found that he was out of time. In most cases they were, accordingly to him, based on purely personal incidents or conditions which his adversary was not expected to refute.
1. Dr. Hari Singh Gour: Annexure to the letter from F.S.A. Sloica, Esq. I.C.S., Chief Secretary to the Chief Commissioner, Central Provinces, to the Secretary to the Govt. of India, Legislative Department, dated 19th December, 1907 (National Archives File, p. 3).
2. Rai Bahadur Sharat Chandra Sanyal, National Archieves File.
5.3. Extension of section 5 to suits not recommended.- Though there is some merit in Dr. Hari Singh Gour's suggestion, we think that enlarging the scope of section 5 to cover suits would do more harm than good to the administration of justice. The rapport between the lawyer and his rural client is generally so well established that a visit to the family lawyer on the weekly market day is always on the agenda of a villager.
Such being the style of functioning of village folks, it is improbable that the munshi to the lawyer would allow his client's case to go by default by asking him to wait till the last day of limitation. If, as contemplated by Dr. Hari Singh Gour, a plaintiff may be prevented from reaching his lawyers on the last day of limitation by scheming defendants, he could as well as prevented by other causes like breakdown of the bus service, floods, illness, etc. the authorship of which cannot be imputed to the defendants.
In view of the above, we do not recommend extension of the principle of section 5 to suits.