The Supreme Court Opens the Floodgates for Condoning Delay
Lord Hewart, in his book titled ‘Not Without Prejudice’, very piquantly observes, “While sympathy is a most commendable quality, it never appears in a less attractive guise than when it is practiced at the expense of somebody else”. The Supreme Court may have done well to keep this observation in mind when recasting law of limitation in Improvement Trust, Ludhiana v. Ujagar Singh. In short, in this seemingly liberal, but disturbing decision, the Court held that “unless mala fides is writ large on the conduct of the party, generally, as a normal rule, delay should be condoned”.
The facts which led to the proceedings before the Supreme Court were fairly straightforward, but require a detailed reproduction. Land belonging to the Respondents 1-4 was acquired by the Appellant, but the compensation due for this acquisition was not deposited. The Respondents approached the Executing Court for the recovery of this amount, but despite the service of notice, no one appeared for the Appellant. As a matter of course, the property was put up for auction sale on 12/8/1992, and Respondent 5 was declared the highest bidder with a bid of 22,65,000/-. In the words of the Supreme Court itself, it was only after this that the Appellant “woke up from its slumber”, and filed objections under Order 21, Rule 90. The case was then fixed for the recording of evidence on four dates in March, April and May, 1993. However, on none of these dates did any one appear on behalf of the Appellant, leading to its objections being dismissed on grounds of non-appearance. The case was posted for confirmation of the sale to June 1993, on which date again no one appeared for the Appellants. The sale was confirmed, and the amount of compensation due to Respondents 1-4 was paid over, and the rest of the moneys are still lying in deposit in Executing Court. It was only after this that the Appellant filed a Miscellaneous Appeal before the District Judge, Ludhiana, challenging the validity of the orders. This appeal was filed two months and a few days beyond the period of limitation, and was hence dismissed by the District Judge. An application for condoning delay under section 5 of the Limitation Act was filed, but was also dismissed since sufficient cause for condonation of delay was not established. In the face of a specific bar created by section 104 of the CPC, the Appellant filed a second appeal before the High Court of Punjab and Haryana, which the Court was kind enough to treat as a Revision Application, which it proceeded to dismiss. It was against this that a Special Leave Petition was filed in the Supreme Court (again severely delayed, as appears on p. 5 of the judgment).
The above list of dates and events provides no indication of what sufficient cause allowed for a condonation of delay. Even the judgment is entirely silent on what reasons justified this lackadaisical attitude by the Appellant. The only reason put forth is that the erstwhile advocate of the Appellant before the Executing Court, Mr. P.K. Jain, had been appearing in several matters for it, and enjoyed the “implicit faith and confidence” of the Appellant. Since the matter had been contested “in right earnest right from the beginning”, and since “whatever best was possible to be done by the appellant that (sic) had been done”, even though there was “some delay”, it should have been condoned by the District Judge. The above quotes show that apart from blanket assertions, little was produced in the Court by way of concrete circumstances that justified the condonation of the non-participation of the Appellant in the execution proceedings. This was particularly necessary given that two courts (the District Court and the High Court) had come to the conclusion that sufficient cause was not established on facts.
On this unpersuasive account offered by the Appellant, the Court held that the District Court should not have dismissed the appeal on such a “hypertechnical” ground. It reiterated that an application for condonation should be decided as per the facts and circumstances of that case. The Court opined that the Appellant here had not been “absolutely callous and negligent” in prosecuting the matter. Inspite of the fact that the Appellant was an Improvement Trust and not a poor, indigent person, and inspite of the airy grounds put forth for condonation, one may persuade oneself that the Court was justified in arriving at this factual finding. Given bureaucratic loopholes and red-tape, as pitted against the imperatives of development and other such policy imperatives, one may make a case for siding with the Appellant. However, what one cannot make oneself see eye to eye with, is the observation that “unless mala fides is writ large on the conduct of the party, generally, as a normal rule, delay should be condoned”. For, with due respect to the liberal stance adopted by the Court, this observation turns section 5 of the Limitation Act on its head. The provision, in its relevant part, reads-
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. [emphases supplied]
Clearly, under the provision, the burden is on the applicant to establish that he had sufficient cause for the delay. The above observation indicates that it is for the other party to establish that the delay is on account of mala fide, or occasioned by ‘callousness’ or ‘negligence’. Further, it is interesting to note that even section 5 does not apply to an application under Order 21 of the CPC. The likely rationale for this is that Order 21 deals with execution proceedings, which should be conducted without undue delays. Admittedly, the appeal before the District Court is not an application under section 5. However, in determining if a sufficient cause is established, the Court would have been expected to note the fact that the appeal was from a proceeding, which the legislature in its wisdom, has sought to fast-track. Indeed, if a condonation application before the Execution Court would not be permitted, it seems absurd to allow a condonation application on appeal before the District Court, especially when the matter before the Execution Court has been disposed off on grounds of non-appearance.
In sum, while the Court’s quest for justice must be appreciated, observations such as “justice can only be done when a matter is fought on merits and in accordance with law”, are both incorrect and contradictory. For dismissing the matter on grounds of the expiry of limitation or the lack of jurisdiction is as much ‘in accordance with law’ as disposing of it on merits. It can only be hoped that these observations are not adopted with too much vigour by lower Courts, or that they are watered down soon by the Supreme Court itself.