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PETITIONER: RAMLAL, MOTILAL AND CHHOTELAL

       Vs.

RESPONDENT: REWA COALFIELDS LTD.

DATE OF JUDGMENT: 04/05/1961

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. WANCHOO, K.N.

CITATION:  1962 AIR  361            1962 SCR  (3) 762  CITATOR INFO :  R          1968 SC 222  (4)  R          1972 SC 749  (29)  R          1988 SC 897  (7)

ACT: Limitation-Condonation of delay in filing appeal-Period  for which delay to be explained Indian Limitation Act, 1908 (Act IX of 1908) s. 5.

HEADNOTE: In an application under s.5 of the Indian Limitation Act for condonation  of  one day’s delay in filing  an  appeal,  the question arose whether the appellant had to explain his con- duct  during  the  whole period prescribed  for  filing  the appeal  or he has to explain the delay between the last  day for  filing the appeal and the date on which the appeal  was actually  filed.  Section 5 of the Limitation Act lays  down that  an  appeal  may  be  admitted  after  the  period   of limitation  if the appellant shows sufficient cause for  not preferring the appeal "within such period". Held,  that  it  would  be  irrelevant  to  invoke   general considerations  such  as  diligence  of  the  appellant   in construing  the  words of s.5. The expression  "within  such period" does not mean during such period and the failure  of the  appellant to account for his non-diligence  during  the whole  period  of limitation does not  disqualify  him  from praying  for  condonation of delay.  In  showing  sufficient cause  for condoning the delay the appellant has to  explain the  whole  of the delay covered by the period  between  the last day of limitation and the date on which the appeal  was actually filed. Krishna  v. Chattappan, (1890) I.L.R. 13 Mad. 267,  referred to. Karalicharan  Sarma v. Apurbakrishna Bajpeyi, (1931)  I.L.R. 58 Cal. 549, approved. Kedarnath v. Zumberlal A.I.R. 1916 Nag. 39 and Jahar Mal  v. G. M.  Pritchard A.I.R. 1919 Pat. 503, disapproved. Ram Narain Joshi v. Parmeshwar Narain Mehta (1902) L.   R. 30 I.A. 20, not applicable. Indar  Singh  v.  Kanshi  Ram (1917) L. R.  44  T.  A.  218, referred to.

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JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 276 of 1958. Appeal from the judgment and decree dated August 6, 1955, of the, Judicial Commissioner’s court, at Rewa, V. P. in  First Civil Appeal No. 16 of 1955. 763 S.   N.  Andley,  Rameshwar Nath and P. L.  Vohra,  for  the appellants. D.   N.  Pathak,  R. Mahalingier and B. C. Mishra,  for  the respondent. 1961.  May 4. The Judgment of the Court was delivered by GAJENDRAGADKAR,  J.-The  short question which  falls  to  be considered in this appeal relates to the construction of  s. 5  of  the Indian Limitation Act IX of 1908.  It  arises  in this  way.   The  respondent Rewa Coalfields  Limited  is  a registered  company whose coal-mines are situated at  Burhar and  Umaria.   Its registered office is  at  Calcutta.   The appellant  is  a firm, Chaurasia Limestone  Company,  Satna, Vindhya;  Pradesh,  by name and the three  brothers  Ramlal, Motilal  and  Chhotelal  are its  partners.   The  appellant prepares and deals in limestone at Maihar and Satna and  for the  use  in  their lime-kilns it purchased  coal  from  the respondent’s coal-mines at Umaria by means of permits issued to   it  by  Coal  Commissioner  Calcutta.    According   to respondent’s case the appellant purchased from it 3,307 tons of  coal at the rate of Rs. 14-9-0 per ton  between  January 1952,  and  March  1953.  The price for this  coal  was  Rs. 48,158-4-0.   Since the appellant did not pay the price  due from  it the respondent filed the present suit in-the  Court of the District Judge, Umaria, and claimed a decree for  Rs. 52,514-14-0  including  interest accrued due on  the  amount until the date of the suit. A  substantial part of, the respondent’s claim was  disputed by  the  appellant.  It was urged by the  appellant  in  its written statement that the amount claimed by the  respondent had  been arbitrarily calculated and that for a  substantial part  of  the  coal  purchased by  the  appellant  from  the respondent  due price had been paid.  The appellant  pleaded that for some time past it had stopped purchasing coal ’from the respondent and it was 764 obtaining its supplies from Messrs Sood Brothers,  Calcutta, to  whom  payments for the coal supply had been  duly  made. The  appellant admitted its liability to  pay  Rs.7,496-11-0 and  it expressed its readiness and willingness to  pay  the said amount. On  these  pleadings the learned trial  judge  framed  seven issues.  It appears that on the date when the respondent led its  evidence and the appellant’s turn to lead its  evidence arrived  an  application  for adjournment was  made  on  its behalf  to produce additional evidence which was granted  on condition  that the appellant should pay to  the  respondent Rs.  200/-  as costs.  On the subsequent  date  of  hearing, however,  the appellant did not appear nor did it pay  costs to  the respondent as ordered.  That is why the trial  Court proceeded  ex-parte  against the appellant.  On  the  issues framed trial Court made findings in favour of the respondent in  the light of the evidence adduced by the respondent  and an  ex-parte decree was passed against the appellant to  the tune  of  Rs.  52,535-7-0  with  proportionate  costs.   The appellant  was also ordered to pay interest at 6% per  annum from  October 6,1953, which was the date of the  suit  until the date of payment.  This decree was passed on November  9,

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1954. Against  this decree the’ appellant preferred an  appeal  in the  Court  of the Judicial Commissioner,  Vindhya  Pradesh, Rewa,  on  February 17, 1955 (Appeal No. 16 of  1955).   The main  contention raised by the appellant in this appeal  was that  the ex-parte decree should be set aside and  the  case remanded  to  the trial Court with the  direction  that  the appellant  should be allowed to lead its evidence  and  the, case disposed of in accordance with law in the light of  the said  evidence.  On February. 19, 1955, the appellant  filed an  application under s. 5 of the Limitation Act and  prayed that one day’s                             765 delay  committed  by  it  in filing  the  appeal  should  be condoned  because  Ramlal,  one  of  the  partners  of   the appellant’s  firm,   who was in charge of  the  limitation., fell  ill on February 16, 1955, which was the last date  for filling  the appeal.  This application was supported  by  an affidavit and a medical certificate showing that Ramlal  was ill   on   February   16,  1955.    The   learned   Judicial Commissioner,  who heard this application, appears  to  have accepted  the  appellant’s  case  that  Ramlal  was  ill  on February  16  and  that if only one day’s delay  bad  to  be explained satisfactorily by the appellant his illness  would constitute sufficient explanation; but it was urged.  before him by the respondent that the appellant bad not shown  that its  partners were diligent during the major portion of  the period of limitation allowed for appeal, and since they  put off  the  filing  of the appeal till the last  date  of  the period of Limitation the illness of Ramlal cannot be said to be  sufficient cause  for condoning the delay though it  was only  one  day’s delay.  On the other  hand,  the  appellant urged that it had a right to file the appeal on the last day and  so  the.  delay of one day which  it  was  required  to explain   by  sufficient  reason  had  been   satisfactorily explained.   The  learned-Judicial  Commissioner,   however, accepted the plea raised by the respondent and in substance, refused  to excuse delay on the ground that the  appellant’s partner  had showed lack of diligence and negligence  during the  *hole  of  the period of  Limitation  allowed  for  the appeal.   It  is  on this ground that  the  application  for condonation  of  delay  was  rejected  and  the  appeal  was dismissed on August 6, 1955. The appellant then applied to the Judicial Commissioner  for a certificate and urged that on the question of construction of  s.  5  of the Limitation Act there  was  a  conflict  of judicial  opinion’ and so the point decided by the  Judicial Commissioner  was one of general importance.  This  argument was accepted by the- Judicial Commissioner 766 and so a certificate of fitness has been issued by him under Art.  133 of the Constitution.  It is with this  certificate that  the  appellant has come to this Court,  and  the  only point  which  has  been  urged on its  behalf  is  that  the Judicial  Commissioner  was  in error  in  holding  that  in determining the question as to whether sufficient cause  bad been shown within the meaning of s. 5 of the Limitation  Act it  was necessary for the appellant to explain  his  conduct during the whole of the period prescribed for the appeal. Section  5 of the Limitation Act provides for  extension  of period in certain cases.  It lays down, inter alia, that any appeal  may  be  admitted after  the  period  of  limitation prescribed therefore when the appellant satisfies the  Court that  he had sufficient cause for not preferring the  appeal within  such period.’ This section raises two questions  for

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consideration.  First is, what is sufficient cause; and  the second,  what  is  the meaning of the  clause  "within  such period"?   With the first question we are not  concerned  in the  present  appeal.  It is the second question  which  has been  decided  by  the  Judicial  Commissioner  against  the appellant.   He  has  held  that  "within  such  period"  in substance means during the period prescribed for making  the appeal.  In other words, according to him, when an appellant prefers an appeal beyond the period of limitation prescribed he  must  show that he acted diligently and that  there  was some  reason which prevented him from preferring the  appeal during the period of limitation prescribed.  If the Judicial Commissioner  had held that "within such period" means  "the period  of  the delay between the last day  for  filing  the appeal and the date on which the appeal was actually  filed" he  would undoubtedly have come to the conclusion  that  the illness  of  Ramlal on February 16 was a  sufficient  cause. That clearly appears to be the effect of his judgment.  That is why it is unnecessary for us to                             767 consider what is "a sufficient cause" in the present appeal. It  has  been  urged  before  us  by  Mr.  Andley,  for  the appellant,  that  the construction placed  by  the  Judicial Commissioner on the words "within such period" is erroneous.  In  construing  s.  5 it is relevant to bear  in  mind  two important  considerations.  The first consideration is  that the  expiration of the period of limitation  prescribed  for making  an  appeal gives rise to a right in  favour  of  the decree-holder  to  treat the decree as binding  between  the parties. In other words, when the period of limitation pres- cribed has expired the decree-holder has obtained a  benefit under  the law of limitation to treat the decree  as  beyond challenge,  and  this legal right which has accrued  to  the decree-holder by lapse of time should not be  lightheartedly disturbed.  The other consideration which cannot be  ignored is  that  if sufficient cause for excusing  delay  is  shown discretion is given to the Court to condone delay and  admit the appeal.  This discretion has been deliberately conferred on the Court in order that judicial power and discretion  in that  behalf  should  be exercised  to  advance  substantial justice.   As has been observed by the Madras High Court  in Krishna v. Chattapan (1) "s. 5 gives the Court 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  fide  is  imputable  to   the appellant." 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  s.  5 justify  the said interpretation ? If the limitation Act  or any other (1)  (1890) J.L.R. 13 Mad. 269. 768 appropriate   statute   prescribes  different   periods   of limitation either for appeals or applications to which s.  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

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prescribed the party would be entitled to take its time  and to file the appeal on any day during the said period and  so prime 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.   In our opinion,  it  would  be immaterial and even irrelevant to invoke general  considera- tions of diligence of parties in construing the words of  s. 5.  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 s. 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  suffi- cient  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.  To hold that the expression "within  such period"  means during such period would in our  opinion   be repugnant  in the context.  We would accordingly  hold  that the  learned Judicial Commissioner was in error  taking  the view  that the failure of the appellant to account  for  its non-diligence  during the whole of the period of  limitation prescribed for the appeal necessarily disqualified it                             769 from  praying for the condonation of delay, even though  the delay  in  question was only for one day; and that  too  was caused by the party’s illness. This question has been considered by some of the High Courts and  their  decisions  show a conflict  on  the  point.   In Karalicharan  Sarma v. Apurbakrishna Bajpeyi(2) it  appeared that the papers for appeal were handed over by the appellant to  his advocate in the morning of the last day  for  filing the  appeal.  Through pressure of urgent work  the  advocate did  not look into the papers till the evening of  that  day when he found that was the last day.  The appeal ",as  filed the  next  day.  According to the majority decision  of  the Calcutta  High  Court, in the circumstances  just  indicated there  was  sufficient  cause  to  grant  the  appellant  an extension of a day under s. 5 of the Limitation Act  because it  was held that it was enough if the  appellant  satisfied the  Court that for sufficient cause he was  prevented  from filing the appeal on the last day and his action during  the whole of the period need not be explained.  This decision is in  favour of the appellant and is in accord with  the  view which we are inclined to take. On the other hand, in Kedarnath v. Zumberlal(3) the Judicial Commissioner  at  Nagpur  has expressed  the  view  that  an appellant   who   wailfully  leaves  the   preparation   and presentation of his appeal to the last day of the period  of limitation prescribed therefore 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 how why he waited (2)  (1931)I.R.L 58 Cal 549, (3)  A.I.R. 1916 Nag, 39 770 until  the  last  day.  In coming  to  this  conclusion  the

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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 therefore".  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 s. 5.  The decision  of the Judicial Commissioner shows that  be  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. In Jahar Mal v. G. M. Pritchard (4) the Patna High Court has adopted  the same line.  Dawson Miller, C.J., brushed  aside the  claim of the appellant for condonation of delay on  the ground  that ’,one is not entitled to put things off to  the last  moment  and hope that nothing will  occur  which  will prevent  them  from  being in time.   There  is  always  the chapter  of accidents to be considered, and it seems  to  me that  one ought to consider that some accident or other  may happen  which will delay them in carrying out that  part  of their duties for which the Court prescribes a time limit and if  they  choose to rely upon  everything  going  absolutely smoothly  and wait till the last moment.  I think they  have only themselves to blame if they should find that some (4)  A.I.R. 1919 Pat.503.                             771 thing has happened which was unexpected, but which ought  to be  reckoned and are not entitled in such  circumstances  to the indulgence of the court." These observations are subject to  the  same  comment that we have made  about  the  Nagpur decision(3). 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  s. 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 s. 14  of the  Limitation Act.  In dealing with such applications  the Court is called upon to consider the effect of the  combined provisions  of  ss. 5 and 14.  Therefore,  in  our  opinion, considerations  which have been expressly made material  and

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relevant  by  the  provisions of s. 14 cannot  to  the  same extent  and  in the same manner be invoked in  dealing  with applications which fall to be decided only under s.    5 without reference to s. 14.  In the present case (3) A.I.R. 1916 Nag. 39. 772 there is no difficulty in holding that the discretion should be exercised in favour of the appellant be cause apart  from the  general criticism made against the appellant’s lack  or diligence during the period of limitation no. other fact had been adduced against it.  Indeed, as we have already pointed out,  the  learned Judicial Commissioner  rejected  the  ap- pellant’s  application for condonation of delay only on  the ground  that it was appellant’s duty to file the  appeal  as soon as possible within the period prescribed, and, that  in our opinion, is not a valid ground. It  now remains to refer to two Privy Council  decisions  to which  our  attention  was drawn.  In Ram  Narain  Joshi  v. Parmeshwar  Narain Mehta (5), the Privy Council was  dealing with a case where on August 9, 1895 the High Court bad  made an  order that the appeal in question should be  transferred to  the  High.   Court  under s. 25 of  the  Code  of  Civil Procedure  and  heard  along  with  another  appeal  already pending  there.   In making this order the  High  Court  had given  liberty to the respondent to make his objections,  if any, to the said transfer.  On September 16, 1895 a petition was  filed on behalf of the appellant objecting to the  said transfer;  and the’ question arose whether sufficient  cause had  been  shown for the delay made by  the  party,  between August  9,  1895 to September 16, 1895.   The  decree  under appeal  had  been  passed on June 25, 1894  and  the  appeal against  the said decree had been presented to the  District Judge  on  September 1894.  It would thus be seen  that  the question  which arose was very different from  the  question with  which  we are concerned; and it is in  regard  to  the delay made between August 9, 1895 to September 16, 1895 that the  Privy  Council approved of the view taken by  the  High Court  that  the  said delay  had  not  been  satisfactorily explained.  We do not see how this decision can assist us in interpreting the provisions of s. 5. (5)  (1902) L.R. 30 I.A. 20.                             773 The  next  case  on which reliance has been  placed  by  the respondent  is  Bri  Indar Singh v. K  anshi  Ram  (6).  The Principal point decided in that had reference to 8. 14  read with  8.  5 of the Limitation Act, 1908;  and  the  question which it was whether the time occupied by an application  in (food  faith for review, although made upon a mistaken  view of the law, should be deemed as added to the period  allowed for  presenting an appeal.  As we have already pointed  out, when the question of limitation has to be considered in  the light  of  the  combined operation of ss. 14 and  5  of  the Limitation  Act  the conditions expressly imposed by  s.  14 have to be satisfied.  It would, however, be unreasonable to suggest that the said conditions must to the same extent and in  the  same manner be taken into account in  dealing  with applications falling under s. 5 of the Limitation Act. It  appears  that  the provisions of s.  5  in  the  present Limitation  Act are substantially the same as those in s.  5 (b) and s. 5, 1 paragraph 2, of the Limitation Acts of  1871 and  1877 respectively.  Section 5A which was added  to  the Limitation Act of 1877 by the amending Act VI of 1892  dealt with  the  topic covered by the explanation to s. 5  hi  the present Act.  The explanation provides, inter alia, that the fact that the appellant was misled by any order, practice or

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judgment of the High Court in ascertaining or computing  the prescribed  period  of limitation ’may be  sufficient  cause within the meaning of s. 5. The effect of the explanation is that  if the party who has applied for extension  of  period shows  that the delay was due to any of the facts  mentioned in  the  explanation  that would be  treated  as  sufficient cause,  and  after  it is treated as  sufficient  cause  the question  may  then  arise  whether  discretion  should   be exercised  in favour of the party or not.  In the  cases  to which  the explanation applies it may be easy for the  Court to decide, that the dis- (6)  (1917) L.R. 44 I.A. 218. 774 cretion should be exercised in favour of the party and delay should  be  condoned.  Even so, the matter is still  one  of discretion.  Under s. 5A of the Act of 1877, however, if the corresponding  facts had been proved under the said  section there  a pears to have been no discretion left in the  Court cause  the said section provided, inter alia, that  whenever it was shown to the satisfaction of the Court that an appeal was  presented  after  an expiration of the  period  of  the limitation  prescribed  owing to the appellant  having  been misled by any order, Practice or judgment of the High  Court of  the  Presidency, Province or District,  such  appeal  or application, if otherwise in accordance with law, shall  for all  purposes  be deemed to have been presented  within  the period  of limitation prescribed therefore.  That,  however, is  a  distinction  which is not  relevant  in  the  present appeal. In  the result the appeal is allowed, the delay of  one  day made  in  filing the appeal is condoned, and the  case  sent back to the Court of the Judicial Commissioner for  disposal on the merits in accordance with law.  In the  circumstances of  this  case the appellant should pay the  respondent  the costs  of this Court.  Costs incurred by the parties in  the Court  of the Judicial Commissioner so far will be costs  in the appeal before him. Appeal allowed. 775