Extension of Prescribed Period in Certain Cases
This Blog is written by Ravikiran M. Shukre | Column Editor
Section 5 of the Limitation Act, 1963 provides ‘extension of prescribed period’. Before we proceed further, it is crucial to understand the meaning of “Prescribed period”. Section 2 (j) of the Act defines the Period of Limitation as – “Period of Limitation” means the period prescribed for any suit, appeal or application by the Schedule, and “Prescribed Period” means the period of limitation computed in accordance with the provisions of the Limitation Act. The actual period of limitation which can be computed with regard to provisions of the Act is called a prescribed period.
If we look at the object of the Act, then we can find that the said Act is based on public policy – to put an end to stale litigation. And we can see that it is crucial as there is a huge pendency of matters in India. Applying the maxim “Vigilgntibuset Non Deorminentibus Jurrasub Veniunt” means the law comes to rescue for those who are vigilant but were not sleepy. In cases of Rajendra Singh v. Santa Singh & Krishi Utpadan Mandi Samiti, Amroha v. Ganga Ram Supreme Court has held that “Object of Law of Limitation is to prevent disturbance or deprivation of what may have acquired in equity and justice.” Hence, it can be concluded that one must be vigilant over their rights meaning thereby; one must understand the rights conferred by the Constitution of India.
But if in case any unprecedented difficulty, happening of an unexpected event arises due to which there is a delay in filing the appeal or other proceedings when the prescribed limitation period is over then, Section 5 of this Act comes to the rescue. Basically, the section provides for an application to condone the delay or extension of the prescribed period of limitation.
SECTION 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 Code of Civil Procedure, 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 Act provides, to the extent appropriate that any application may be admitted after the prescribed period is over if the applicant satisfies the court that he had a sufficient cause for not making the application within the period. This section applies only to courts and prescribed period of limitation in respect of suits, appeals, and applications filed only in courts and not to other authorities.
Hon’ble Supreme Court in case of Sesh Nath Singh v. Baidyabati Sheoraphuli Co-Operative Bank Ltd. Held that, “There is no bar to exercise by the Court/Tribunal of its discretion to condone delay under section 5 of the Limitation Act, in the absence of formal application. However, the court can always insist that an application or an affidavit showing cause for delay be filed.”
WHY CONDONE THE DELAY CAUSED?
Well, this question is very important and a question that comes to the mind of every law student. The answer to this question is given by Section 5 itself. It says the applicant has to show ‘sufficient cause’ for the delay to be condoned. So what exactly this Sufficient Cause?
It is well settled that before filing any appeal or making an application other than provisions under Order XXI of the Code of Civil Procedure, 1908; Court has to look at the limitation period and the delay caused, and then if a party shows the proper and sufficient cause as to why this delay is caused and why appellant or applicant had not preferred the appeal or application within such period, then decide the matter on merits.
In the case of State of Karnataka v. Moideen Hon’ble Supreme Court has held that “expression ‘Sufficient Cause’ used in Section 5 of the Limitation Act, 1963 must be construed liberally for Advancement of Justice.”
Ingredients of Sufficient Cause:
1) Circumstances beyond the control of the party
2) Whether the party has acted in reasonable diligence
3) Whether the delay is deliberate
4) Whether the party is negligent
5) Malafide intentions on part of the party
6) Whether the matter is delayed with an ulterior motive
7) Whether a party has bonafide reasons in respect of delay caused
These are some important parameters that ought to be kept in mind before the delay is condoned. Therefore, an applicant has to show and satisfy the court that certain conditions were beyond his control due to which the delay is caused. He also has to show that in spite of the unavoidable circumstances he acted in reasonable diligence. It is crucial to understand that the expression sufficient cause used in Section 5 can differ. sufficient cause can differ from case to case, meaning thereby this sufficient cause can change from case to case depending on the facts and circumstances of each and every case.
1. Illness of party
2. Mistaken legal advice: However, the party has to prove beyond reasonable doubt that it is a bonafide mistake of a lawyer. The lawyer has acted in good faith, there has been no negligence on part of the lawyer and there is no willful default as counsel has taken reasonable care and acted in good faith.
As explained above, the party has to show sufficient cause before filing an appeal or making an application before the court and he has to satisfy the court regarding the delay caused and why the Hon’ble court should condone the delay.
Although this ‘Sufficient Cause’ differs from case to case, it is a crucial aspect for the appellant or applicant to enumerate the unavoidable circumstances to the court.
Power enumerated under Section 5 of the Limitation Act, 1963 is a discretionary power that has to be exercised judicially and to enhance accurate justice as justice should not only be done but should manifestly and undoubtedly be seen to be done. And hence, to allow the application to condone the delay caused or not; depends on particular and peculiar facts and circumstances of each and every case.
Before we part away there is a beautiful ratio given by the Supreme Court in the case of Collector, Land Acquisition v. Katiji – “Refusing to condone delay can result in meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest can happen is that a cause would be decided on merits after hearing the parties.”
 [AIR (1973) SC 2537]
 [(1992) All CR 454 at 459]
 [AIR (2009) SC 2577].
 [AIR (1972) SC 749].
 [AIR (1981) SC 1400].
 [AIR (1987) SC 1353] .