Comments on: The Supreme Court Opens the Floodgates for Condoning Delay

By: Syed Sharifuddin

Syed Sharifuddin — Thu, 05 Jun 2014 16:49:28 +0000

While considering about the condonation of delay by the Apex Court or the Hon’ble Suprem COurt it is justify that the merits in the main application or hte kappeal what so ever it may be should be seen and then only may come to any concrit conclution which shall be kept buinding on the parties in my openion…..

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By: v.Bhaskar

v.Bhaskar — Tue, 02 Jul 2013 06:10:19 +0000

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?

By: Alok

Alok — Sat, 11 Sep 2010 16:48:17 +0000

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.

By: Alok

Alok — Sat, 11 Sep 2010 16:44:43 +0000

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.

By: Shantanu

Shantanu — Sat, 11 Sep 2010 16:19:52 +0000

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.

By: Alok

Alok — Sat, 11 Sep 2010 14:02:29 +0000

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.

By: Alok

Alok — Sat, 11 Sep 2010 13:58:18 +0000

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.”