The code of civil procedure, 1908 (hereinafter referred to as the code) has been able to strike a balance between the rights and duties of plaintiffs and defendants in any civil suit. If the judgment debtor is unable to appeal within the specified time against the decree in a suit, then the decree holder gets a right. The courts should not be blithe so as to tamper with the legal right so acquired. The condonation of delay in filing the appeal is not a matter of right for the aggrieved party. Even if the party is able to sufficient cause, the courts have a discretionary power to condone the delay, but such discretion cannot be arbitrary and whimsical.
However, the expression `sufficient cause' has to be liberally construed to ensure an equilibrium between the rights secured by the decree holder against the injustice of taking away the right of judgment debtor of adjudication on the basis of cause which was reasonably out of his will. However, the cause has to be bona fide.
Generally, after the period of limitation eclipses, the other side gets a legal right which should not be frivolously disturbed. Only when the party can show sufficient cause, then, it is allowed to litigate its case further. The expression “sufficient cause” is flexible enough so as to enable the court to apply the law in a just manner.
The Courts have found it difficult to generally define precisely the meaning of sufficient cause or sufficient reason. Making such an attempt would amount to crystallization into a rigid definition with judicial discretion which the Legislature has for the best of all reasons left undetermined and unfettered.
It is a well settled position of law as enunciated by Supreme Court that while deciding an application under Section 5 of Limitation Act, 1963, a justice oriented approach is required to be adopted.
In Collector, Land Acquisition, Anantnag v. Mst Katiji, the Supreme Court has held—
"... The expression `sufficient cause' employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. But the message does not appear to have percolated down to all the other Courts in the hierarchy.”
General Principles To Be Followed
The Supreme Court also gave certain principles which the Courts are bound to follow while adjudicating upon the issue relating to condonation of delay. These are
Ordinarily, a litigant must not stand to benefit from filing a late appeal.
If the delay is condoned, the maximum that can happen is that a case would be decided normally after hearing the parties involved. But on refusing condonation, there is a chance that a meritorious matter would be thrown out on the basis of technicalities.
There is no need of taking a pedantic approach in dealing with explanation of delay. The doctrine has to be applied in a rational and pragmatic manner.
If the courts have to choose between substantial justice and technical considerations, substantial justice should be preferred since the other side cannot contend to have superior right in injustice being done under a bona fide mistake.
The court should not presume that the delay is occasioned deliberately or on account of mala fides or the applicant is guilty of culpable negligence since no litigant takes recourse to delay the filing of his application.
Where the petitioner has not come with bona fide reasons to condone the delay, he is not entitled to be shown any indulgence. The Courts should not encourage a person by condoning delay when he has come with false plea to get rid of the bar of limitation. The extent of liberal construction should not be such that it may totally ignore the public policy on which the law of limitation is founded and thereby defeat the very purpose of the law of limitation.
Unless the Court comes to the conclusion that there was intentional delay in making application or filing appeal or there was gross negligence on the part of the litigant for not approaching the Court after coming to know of the proceedings to be filed, the delay under section 5 of the Limitation Act should normally be condoned.
The provisions of law of limitation must be applied to all persons equally and uniformly. The Government departments or local authorities cannot claim privilege in that regard and they must be treated at par with the private individuals. However, the fact of life also cannot altogether be ignored as a body private or an individual takes a decision one way or other almost instantaneously, but a democratic department or bureaucratic authority discusses and debates, considerss and consults, peep through papers and files, till at last it gravitates towards conclusion emergency. Hence in absence of inaction, want of bona fide or negligence in filing the appeal, the delay should be condoned in the larger interest of justice.
The sufficient cause for non filing has to be proved for the period before the expiry of limitation. In Ajit Singh Thakur Singh v. State of Gujarat, the Supreme Court held thus
“..the sufficient cause must establish that because of some event or circumstance arising before limitation expired, it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute such sufficient cause.”
Normally, where the applicants have not been grossly negligent or palpably indifferent in prosecuting the case, the delay should be condoned. But if the reasons assigned show absolute carelessness or recklessness, delay cannot be condoned. `Sufficient cause' has to be of the type, which is beyond control of the party invoking the provisions of section 5 of the Limitation Act. An avoidable cause for delay by due care and attention cannot be sufficient cause. Cause attributable to negligence or inaction of the party cannot be sufficient cause. Negligence and laches on the part of the counsel cannot be condoned.
Condonation Of Delay Is Matter Of Discretion Of The Court
Section 5 does not say that such discretion can be exercised only if the delay is within a certain limit. The number of days of delay does not matter, the court has to look whether the aggrieved party is able to reasonably justify the time of delay. Sometimes the delay of shortest range may be unpardonable due to want of acceptable explanation whereas in certain other cases, delay of very long period can be condoned where the explanation thereof is satisfactory.
An order made by the court under section 5 of the Limitation Act condoning the delay without assigning any reasons and particularly without recording the satisfaction of the Court as to the "sufficient cause" cannot be said to be in accordance with law. Such an order is liable to be set aside.
In Inder Singh v. Kanshi Ram, it was held that the true guide for a Court to exercise the discretion under section 5 is to see whether the applicant acted with due and reasonable diligence in prosecuting his case. In Shakuntala Devi Jain v. Kuntal Kumari, the Supreme Court held that unless want of bona fides of any inaction or negligence as would deprive a party of the protection of section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned. The Court may refuse to condone the delay if it finds that there are no bona fides in the applicant's attempt to show cause for the delay or that the appellant is guilty of either inaction or negligence. General delay can always be condoned but in cases where it is shown that the party seeking condonation of delay acted with gross negligence in prosecuting his case, the Court has always got the discretion which is vested in it under section 5 to consider the same on its merits.
Sufficient Cause For The Purpose Of Non Appearance Of The Parties
Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as elastic expression for which no hard and fast guidelines can be prescribed. The Courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case.
The 'sufficient cause' for non-appearance refers to the date on which the absence was made a ground for proceeding ex-parte and cannot be stretched to rely upon other circumstances anterior in time. If sufficient cause' is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier.
Late arrival of a train is a sufficient ground if otherwise the conduct of the defendant had not been faulty. Similarly, mistake in noting down the date fixed, is also a sufficient ground if the defendant had no mala fide intentions or there is no delaying tactics on his part. Non-appearance due to curfew in the city, (Sohan Lal v. Kedar Nath), is a strong sufficient ground for setting aside the ex parte decree. If more than one counsel are engaged in a case, the Court should not always accommodate on the ground that the counsel is briefed elsewhere (Mahabir v. Sohan Lal).
Sufficient Cause With Regard To Stay Of Execution Of Decree
Mere filing of an appeal would not operate as stay of execution of decree, but the Appellate Court may, for "sufficient cause" order stay of execution of decree. Also, the stay order if any granted takes practical effect only on the communication (Mulraj v. Murti Raghunathji).
All the three aspects indicated in Clause (3) of Order 41, Rule 5 of the Code together with the "sufficient cause" contained in Clause (1) of Order 41, Rule 5, are required to be taken into consideration by the Appellate Court while granting or refusing stay. The necessary aspects have been stated herein below:
(1) Whether there will be substantial loss to the party applying for stay:
(2) Whether the application has been made without unreasonable delay; and
(3) Whether surety has been given by the applicant for due performance of the decree.
The expression "Sufficient" means adequate, enough, as much as may be necessary, equal or fit for end proposed and that which may be necessary to accomplish an object. The object should be to serve public interest and public interest can be served by which methods have to be considered.
The only guiding factor, indicated in the Rule 5 aforesaid, is the existence of sufficient cause in favour of the Appellant on the availability of which the Appellate Court would be inclined to pass an Order of stay. Experience shows that the principal consideration which prevails with the Appellate Court is that inspite of the appeal having been entertained for hearing by the Appellate Court; the Appellant may not be deprived of the fruits of his success in the event of the appeal being allowed. This consideration is pitted and weighed against the other paramount consideration- why should a party having succeeded from the Court below be deprived of the fruits of the decree or order in his hands merely because the defeated party has chosen to invoke the jurisdiction of a superior forum. Still the question which the Court dealing with a prayer for the grant of stay asks to itself is- Why the status quo prevailing on the date of the decree and/or the date of making of the application for stay be not allowed to continue by granting stay, and not the question why the stay should be granted (Atma Ram Properties (P) Ltd. v. Federal Motors Pvt. Ltd.).
Sub-rule (3) of Rule 5 categorically lays down the conditions which the Court must be satisfied of, before it proceeds to stay the execution, in pursuance to its power under Sub-rules (1) and (2). The rule is that mere preferring of an appeal against a decree does not operate as stay. Nor can stay be granted merely because, an appeal has been preferred. The exception to the rule is the grant of specific order of stay if sufficient grounds for adopting that course are established. A further statutory safeguard has been provided in Clause (c) of Sub-rule (3) of Rule 5 of Order 41 of the Code that no order for stay of execution shall be made even if there is sufficient cause for doing so unless security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him (Hardayal v. Surja Ram).
Sufficient Cause With Regard To Application For Adjournment
Granting adjournments liberally is not the intention of the Legislature and it is against the public policy of early disposal (Abdul Hannan v. Chandra Sekhar Patra). Courts must not succumb to delaying tactics by granting adjournment in lighter vein (N.P. Aggarwal v. Prescribed Authority; Additional Judge Small Cause Code), the Court should not adjourn the case even on being asked by Advocate in violation of the provisions of Rule 1 (Lakshman Dass v. Deoji Mal). Seeking adjournment under the guise of changing Advocate at time of hearing should not be encouraged (Vithal Bhai Behari Lal Patel v. Gordhan Das Lakshman Bhai).
'Sufficient cause' depends on facts and circumstances of the case. In appropriate cases adjournments may be granted on the condition that party seeking or causing adjournment shall pay reasonable costs, including exemplary one when adjournment is sought again and again, to the detriment of the opposite party (Surendra Kumar v. Rajendra Kumar Agarwal).
No appeal lies from the Orders allowing or refusing the adjournment application. Allowing adjournment on mere asking is highly objectionable (Abdul Hannan v. Chandra Sekhar Patra). Further, that the fact that the pleader of the party is engaged in another Court shall not be a ground of adjournment.
The Court shall not grant adjournment unless it is satisfied that the party applying for adjournment could not have engaged another pleader in time (Dhanraj Lilaram Motwani v. Rajendra Kumar Dayachand Jain).
Miscellaneous Provisions Related To Sufficient Cause
Apart from above mentioned situations, the party to the suit may be required to show sufficient cause in other cases. In Order 13 which has the rules related to production, impounding and return of documents, under Rule 8, if the Court sees sufficient cause, it may direct any document or book to be produced before it in any case and keep it in the custody for such period as the court deems fit.
In Order 15 which expounds the rules of disposal of suit at the first hearing, if either party is unable to produce evidence without sufficient cause on which it relies, the court has the power to pronounce its judgment or after framing and recording of issues, adjourn the suit and call for producing such evidence as may be necessary for disposal of suit.
Order 18 says that where a witness shows sufficient cause to the satisfaction of the court as to why his evidence should be taken immediately, the Court may take his evidence in such cases.
In case of execution of decrees and orders under Order 21, when an application is made to jointly apply the execution of decree in favour of all the parties, the court, if it sees sufficient cause, may allow the decree to be executed and make any such order as it deems fit for protecting the interests of the persons who are not a part of the application.
Under Rule 26 of the same order, the Court may stay the execution of the decree if the judgment debtor shows sufficient cause to apply to the same court or appeal in higher court for a reasonable period of time.
Under Order 22, a person claiming to be a legal representative of a deceased party may apply for an order to be set aside, if he shows sufficient cause to the court that he was prevented from continuing the suit. The court shall set aside such order and dismiss costs if it thinks fit.
The researcher concludes that by practical experience and researching various judicial decisions pronounced, the judiciary in India has been very lenient and has ruled in favour of the judgment debtor even in cases where the cause shown by the aggrieved party was far from sufficient. The justification can be that the courts do not want a meritorious matter to be thrown out on technical grounds and some delay in filing. But at the same time, the huge backlog of cases is a result of this leniency only.
The researcher agrees that there has to be a balance between the rights of the applicant who files an application after the limitation expires and the rights acquired by the other party on such delay. But the court must be stricter in allowing the aggrieved party to continue its case after it is fully satisfied there was indeed a bona fide cause that prevented the party from filing a suit in time.
The cause shown in other cases regarding non-appearance, adjournment or stay of execution of decree also have to be just and ‘sufficient' otherwise these provisions will become a tool for prolonging litigation by the litigants. The courts have used these provisions in furtherance of justice but these provisions also should not override the principle that “Justice delayed is justice denied”.
The Code of Civil Procedure, 1908
The Limitation Act, 1963
Anil Nandwani, Law of Civil Procedure in India, (Faridabad: Allahabad Law Agency, 2006)
C K Takwani, Civil Procedure, edn. 5, (Lucknow: Eastern Book Co., 2004)
G. Sanan, Halsbury's Laws of England, edn. 4, (London:Butterworths)
Kuldeep Saxena, Digest on Civil Procedure Code, edn. 2 (Delhi : The Law Enterprises, 2000)
P K Ganguly, Commentary on the Code of Civil Procedure, 1908, (Kolkata : CTJ Publications,2002)
Rakesh Bagga, The Code of Civil Procedure, 1908, (Delhi : Law Book Co,1995)
RC Khera, CPC Digest, (Delhi : Allied Publishing Co., 2001)
Solil Paul & Anupam Srivastava, Mulla, The Code of Civil Procedure, edn. 16 (Delhi : Butterworths,2002)
SR Myneni, Code of Civil Procedure and Limitation Act, (Hyderabad: Asia Law House, 2005)
TV Sanjiva Rao et al., Sanjiva Row's Code of Civil Procedure, edn. 3, (Delhi : Law Book Co., 1965)
Umesh Chandra, Commentary on Civil Procedure Code,1908, edn. 4, (New Delhi:Delhi Law House, 2005)
Umesh Chandra, Commentary on the Code of Civil Procedure, 1908, edn. 4 (Delhi : Delhi Law House, 2007)