Section 5 of the Limitation Act.
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Section 5 of the Limitation Act, which corresponds to the erstwhile Section 5 of the now-repealed Limitation Act, 1908, confers upon the courts the discretionary power to admit any appeal or application (except that under Order XXI of the Code of Civil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.
f. Condonation of Delay entails Extension of Limitation and not Exclusion.
Supreme Court in Shakuntala Devi Jain v. Kuntal Kumari reported in 1968 SCC OnLine SC 139 held that Section 5 of the Limitation Act gives the courts a discretion, where even if sufficient cause for the delay is made out, the court may refuse to condone the delay. The relevant observations read as under: –
“7. The next question is whether the delay in filing the certified copy or, to put it differently, the delay in refiling the appeal with the certified copy should be condoned under Section 5 of the Limitation Act. If the appellant makes out sufficient cause for the delay, the Court may in its discretion condone the delay. As laid down in Krishna v. Chathappan “Section 5 gives the courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words “sufficient cause” receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant.”
In Indian Oil Corpn. Ltd. v. Subrata Borah Chowlek, reported in (2010) 14 SCC 419 Supreme Court reiterated that even upon showing a sufficient cause, a party is not entitled to the condonation of delay as a matter of right, yet it is trite that in construing sufficient cause. The relevant observations read as under: –
“6. Having heard the learned counsel, we are of the opinion that in the instant case a sufficient cause had been made out for condonation of delay in filing the appeal and therefore, the High Court erred in declining to condone the same. It is true that even upon showing a sufficient cause, a party is not entitled to the condonation of delay as a matter of right, yet it is trite that in construing sufficient cause, the courts generally follow a liberal approach particularly when no negligence, inaction or mala fides can be imputed to the party.”
From the above discussion, it is clear that the period which is being effectively extended is only ancillary to the “sufficient cause” that would have occasioned. Even the bare text of Section 5 of the Limitation Act, makes it abundantly clear that while “sufficient cause” has to be shown for the duration covered by the expression “within such period”, nowhere does the provision allude that the “period” which would be effectively extended by the court, in exercise of its discretion for condoning the delay under Section 5 of the Limitation Act would be the period for which “sufficient cause” is demonstrated. Rather, the expression “may be admitted after the prescribed period” clearly indicates that it is only that period, which has been subsumed after the expiry of limitation, as a result of the “sufficient cause” persisting, which would be effectively getting extended by way of condonation.
Thus, while the expression “sufficient cause” and “within such period” are itself inextricably linked together, both these expressions have nothing to do with the manner in which the court proceeds to condone the delay i.e., the period which the court extends in exercise of its discretion under Section 5 of the Limitation Act.
Reference
Shivamma (Dead) through LRS v. Karnataka Housing Board