Section 5 of the Limitation Act, reads as under: –
“5. Extension of prescribed period in certain cases.— 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.
Explanation.— The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.”
Section 5 of the Limitation Act, which corresponds to the erstwhile Section 5 of the now-repealed Limitation Act, 1908, confers upon the courts the discretionary power to admit any appeal or application (except that under Order XXI of the Code of Civil Procedure, 1908) if filed after the expiry of the prescribed period of limitation, provided the erring party is able to show to the court a sufficient cause for not filing the same within the stipulated period of limitation, and the court is satisfied with sufficiency of such cause. It is only in cases, where such “sufficient cause” for the resultant delay in filing / presenting of the appeal or application is shown by the defaulting party, and the courts are satisfied with the explanation and sufficiency of such cause that the recourse to Section 5 of the Limitation Act may be taken by the courts, and in exercise of its discretion the delay be condoned and thereby admit the appeal or application.
Meaning and Scope of the expression “Within Such Period” used in Section 5 of the Limitation Act.
The expression “within such period” occurring in Section 5 of the Limitation Act, first fell for the consideration of Supreme Court in Ramlal, Motilal & Chhotelal v. Rewa Coalfields Ltd. reported in AIR 1962 SC 361. Supreme Court speaking through P.B. Gajendragadkar J. (as his Lordship, then was) held that the aforesaid expression means that existence of a sufficient cause for the delay in filing the appeal or application, as the case may be, has to be shown for the period from the last day of the limitation prescribed till the date of the actual filing of the appeal or application, as the case may be. In other words, if the period of limitation is, say, 90-days, delay has to be explained only for the 90th day till the day of actual filing of the appeal or application, as the case may be. The said decision is in three parts: –
(i) First, it held that in the context of Section 5 of the Limitation Act, the expression “within such period” used therein, means the period from the last day of the limitation that has been prescribed till the day on which the appeal or application is filed. Thus, it held that for the purpose of condonation of delay in terms of Section 5 of the Limitation Act, the party has to assign sufficient cause for why he was unable to file an appeal for the entire period covered from the last day of the limitation prescribed till the day on which such appeal or application came to be filed. The relevant observations read as under: –
“8. […] The context seems to suggest that “within such period” means within the period which ends with the last day of limitation prescribed. In other words, in all cases falling under Section 5 what the party has to show is why he did not file an appeal on the last day of limitation prescribed. That may inevitably mean that the party will have to show sufficient cause not only for not filing the appeal on the last day but to explain the delay made thereafter day by day. In other words, in showing sufficient cause for condoning the delay the party may be called upon to explain for the whole of the delay covered by the period between the last day prescribed for filing the appeal and the day on which the appeal is filed. […]”
(ii) Secondly, although, Supreme Court acknowledged that the context in which the aforesaid expression has been employed, seems to suggest that it only means “within the period which ends with the last day of limitation prescribed” yet, it was reluctant to adopt the aforesaid interpretation, as it would be too unreasonable to expect or require a party to take necessary action on the very first day after the cause of action accrues. It observed if such an interpretation is adopted the same would result in the expression “within such period” being construed as “during such period”, an understanding which is repugnant to both the bare text as-well as the context of Section 5 of the Limitation Act. The relevant observations read as under: –
“8. Now, what do the words “within such period” denote? It is possible that the expression “within such period” may sometimes mean during such period. But the question is : Does the context in which the expression occurs in Section 5 justify the said interpretation? […] The context seems to suggest that “within such period” means within the period which ends with the last day of limitation prescribed. […] To hold that the expression “within such period” means during such period would, in our opinion, be repugnant in the context. […]”
(iii) Thirdly, it observed that since a party is entitled to take its time and file the appeal or application, as the case may be, on any day, during the prescribed period of limitation, it would be unreasonable, where there has been any delay in preferring such appeal or application, to then call upon the party to explain its conduct during the whole of the said period. Accordingly, it rejected the contention that for the purpose of Section 5 of the Limitation Act, the delay in filing of the appeal or application, as the case may be, has to be explained for the entire period of the limitation prescribed. The relevant observations read as under: –
“8. […] If the Limitation Act or any other appropriate statute prescribes different periods of limitation either for appeals or applications to which Section 5 applies that normally means that liberty is given to the party intending to make the appeal or to file an application to act within the period prescribed in that behalf. It would not be reasonable to require a party to take the necessary action on the very first day after the cause of action accrues. In view of the period of limitation prescribed the party would be entitled to take its time and to file the appeal on any day during the said period; and so prima facie it appears unreasonable that when delay has been made by the party in filing the appeal it should be called upon to explain its conduct during the whole of the period of limitation prescribed. […]
(iv) Lastly, it held that the thumb rule of general consideration of the diligence of parties in pursuing their legal remedies cannot be applied for the purpose of construing the import of the expression “within such period” employed in Section 5 of the Limitation Act. This is because, even after sufficient cause has been shown the court still has to enquire whether it, in its discretion, should condone the delay. As such the only place where such considerations of diligence and bona-fides of the party may be of relevance under Section 5 of the Limitation Act, is at the stage of deciding whether the discretionary power to condone the delay should be exercised by the court or not, after sufficient cause has been shown, to its satisfaction. However, Supreme Court cautioned, that considerations of bona fides or due diligence, which unlike in Section 14 of the Limitation Act, have not been expressly made material or relevant under Section 5, ought not be applied to the same extent or manner as under Section 14, so as to invite an enquiry into the reasons for the party’s inaction during the entire prescribed period of limitation. The relevant observations read as under: –
“8. […] In our opinion, it would be immaterial and even irrelevant to invoke general considerations of diligence of parties in construing the words of Section 5. […] xxx xxx xxx
10. On the other hand, in Kedarnath v. Zumberlal the Judicial Commissioner at Nagpur has expressed the view that an appellant who wilfully leaves the preparation and presentation of his appeal to the last day of the period of limitation prescribed therefor is guilty of negligence and is not entitled to an extension of time if some unexpected or unforeseen contingency prevents him from filing the appeal within time. According to this decision, though the period covered between the last day of filing and the day of actual filing may be satisfactorily explained that would not be enough to condone delay because the appellant would nevertheless have to show why he waited until the last day. In coming to this conclusion the Judicial Commissioner has relied substantially on what he regarded as general considerations. “This habit of leaving things to the last moment”, says the learned Judge, “has its origin in laxity and negligence; and, in my opinion, having regard to the increasing pressure of business in the law Courts and the many facilities now available for the punctual filing of suits, appeals and applications therein, it is high time that litigants and their legal advisers were made to realise the dangers of the procrastination which defers the presentation of a suit, appeal or application to the last day of the limitation prescribed therefor”. There can be no difference of opinion on the point that litigants should act with due diligence and care; but we are disposed to think that such general consideration can have very little relevance in construing the provisions of Section 5. The decision of the Judicial Commissioner shows that he based his conclusion more on this a priori consideration and did not address himself as he should have to the construction of the section itself. Apparently this view has been consistently followed in Nagpur.
12. It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it.
In this connection we may point out that considerations of bona fides or due diligence are always material and relevant when the court is dealing with applications made under Section 14 of the Limitation Act. In dealing with such applications the court is called upon to consider the effect of the combined provisions of Sections 5 and 14.
Therefore, in our opinion, considerations which have been expressly made material and relevant by the provisions of Section 14 cannot to the same extent and in the same manner be invoked in dealing with applications which fall to be decided only under Section 5 without reference to Section 14. […]”
The ratio laid down in Rewa Coal Fields (supra) was followed by a three Judge Bench of Supreme Court in Chandra Mani (supra), wherein Supreme Court reiterated that in showing sufficient cause to condone the delay, it is not necessary to explain whole of the period between the date of the judgment till the date of filing the appeal. It is sufficient for the purpose of Section 5 of the Limitation Act to only explain the delay caused during the period between the last of the dates of limitation and the date on which the appeal/application is actually filed. The relevant observations read as under: –
“3. Section 5 of the Limitation Act, 1963 (for short, the ‘Act’) extends prescribed period of limitation in filing an application or an appeal except under the provisions of Order 21 of Civil Procedure Code, 1908 (for short, the ‘Code’) and gives power to the court to admit the appeal or application after the prescribed period. The only condition is that the applicant/appellant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.
In Ramlal v. Rewa Coalfields Ltd. it was laid down that in showing sufficient cause to condone the delay, it is not necessary that the applicant/appellant has to explain whole of the period between the date of the judgment till the date of filing the appeal. It is sufficient that the applicant/appellant would explain the delay caused in the period between the last of the dates of limitation and the date on which the appeal/application is actually filed.”
Thus, as per the decisions of Supreme Court in Rewa Coal Fields (supra) and Chandra Mani (supra), respectively, the expression “within such period” used in Section 5 of the Limitation Act has been construed to mean the period commencing from the last date on which the prescribed period of limitation would have expired, and extending up to the actual date on which such appeal or application comes to be filed, and therefore, “sufficient cause” for the delay in such filing has to be explained only for this circumscribed interval, rather than for the whole of the period of limitation prescribed.