The Supreme Court Opens the Floodgates for Condoning Delay

Written by  //  September 11, 2010  //  Law & The Judiciary  //  9 Comments

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.

9 Comments on "The Supreme Court Opens the Floodgates for Condoning Delay"

  1. Alok September 11, 2010 at 1:58 pm · Reply

    I think too much is being read into a judgment fairly decided on the facts of the said case.

    The general rule that, in the context of condonation of delay… there is no general rule has been applied here and the Court’s conclusion is that the circumstances warrant condonation of delay. I don’t see the words “mala fide” used anywhere, and the Court is simply saying that the facts in this case don’t suggest that the appellant has been negligent in prosecuting his case.

    It is one thing to say that delay is condoned because appellant has not been negligent, and completely something else to say that delay should be condoned in all cases where appellant is not negligent. The latter does not necessarily flow from the latter because there are a range of factors which can influence the Court some of which may be (inter alia):
    1. Identity of parties
    2. External events influencing the prosecution of the case
    3. Whether or not the party is a Governmental body

    The locus classicus on the matter, Collector Land Acquisition, Anant Nag v Mst. Katiji 1987 SCC (2) 107 still holds the field. In fact it is so well established that there is no need for the Court to even cite the name of the case when it says this in the above order.

    “While considering the application for condonation of delay no straight jacket formula is prescribed to come to the conclusion ifsufficient and good grounds have been made out or not. Each case has to be weighed from its facts and the circumstances in which the party acts and behaves.”

    • Alok September 11, 2010 at 2:02 pm · Reply

      Correction: It does mention “mala fides”.
      “It is pertinent to point out that unless malafides are writ large on the conduct of the party, generally as a normalrule, delay should be condoned. In the legal arena, an attempt should always be made to allow the matter to be contested on merits rather than to throw it on such technalities.”
      But these are clearly only observations made in passing and hardly the basis on which the case has been decided since there is no examination of whether or not the appellant has acted in a mala fide manner.

  2. Shantanu September 11, 2010 at 4:19 pm · Reply

    Alok, thanks for your comments- particular since they come from a practitioner’s viewpoint. However, I beg to differ with a couple of points you make.

    First, you make a valid distinction is saying- “It is one thing to say that delay is condoned because appellant has not been negligent, and completely something else to say that delay should be condoned in all cases where appellant is not negligent. ” However, the decision offers little else by way of justification for condoning delay apart from observing that there is no straight-jacket formula, and that each case has to be weighed in the context of its facts and circumstances. I agree that these are propositions too well-settled to require authority, but I do believe the facts that, in the Court’s opinion, justify the legal test, should be fleshed out. Here, the lackadaisical attitude of the lawyer is all that is provided, and I am not sure that is sufficient ground. However, if there is authority to the contrary you are aware of, I stand duly corrected. In the absence of sufficient facts, the harping on the absence of negligence then blurs the valid distinction you make out.

    Secondly, I do share your hope that the observations on mala fides are treated as obiter. However, there are more than enough instances of life being breathed into similar sweeping observations, which may at first have been dismissed as obiter. Hence, my objection was to the Apex Court making observations that may be so easily misunderstood, and go beyond what the case before them requires. Particularly in this case, the absence of a detailed factual discussion, backed by such a sweeping observation, gives the reader an impression that they mean what they are saying- which I assume you would concede, would be a serious problem.

    Since you frequent the Court, I would welcome any additional knowledge you may have of the particular case, which does not appear on the plain reading of the decision.

  3. Alok September 11, 2010 at 4:44 pm · Reply

    Just on an observational level… (mostly for SLPs)

    1. A delay of 50-100 days is usually condoned.
    2. A longer delay is also condoned if the party was pursuing alternate remedies in good faith.
    3. An important question of law is usually enough for judges to condone all but the longest delays.
    4. Governments enjoy more indulgence than private parties simply because there are more considerations at play than the usual litigation. However, beyond 200 days delay, most govt. litigation also gets thrown out on the grounds of delay. On rare occasions the Court has also demanded that the officer responsible file an affidavit or details of action taken against errant officer be filed before condoning delay.
    5. By and large, from what I have observed, it is the relative merits of an applicants’ case that usually determine whether or not the Court condones delay. It is very rare for an applicant with an arguable case to be thrown out of court on the ground of delay alone.

  4. Alok September 11, 2010 at 4:48 pm · Reply

    I wasn’t there for this particular case, but quite a few judges take the view that clients should not be punished for their lawyers’ tardiness and if there is genuine merit in the applicant’s claim, they are willing to take the word of the applicant in such cases. However, this is only a broad generalization, and like I said before, condonation of delay is very much a case by case thing with only the broadest of principles guiding judges’ hand in this.

  5. v.Bhaskar July 2, 2013 at 6:10 am · Reply

    While the above judgement paves the way to condone the delay in the event the appellant has not delayed willfully or with malafide, then why the same can not be extended to the appellant in DRT and DRAT? There are real situations for the appellants having been seriously sick and hence were could not file the appeal within the limitation period. Whereas the Presiding officers of the tribunals, at last rejects the application mentioning that they have no powers. What is the final remedy available to the appellants in the genuine situations?

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