CONDONATION OF DELAY SECTION 5 OF LIMITATION

ACT, 1963: CRITICAL ANALYSIS

By

Author: Surabhi Sharma

Email: surabhisharma668@gmail.com

B.Com, LL.B specialization in (Taxation Law)

School of Law

University of Petroleum and Energy Studies

Kandoli, Via Prem Nagar, Dehradun, Uttarakhand 248001

Page 1

Electroniccopy
Electronic copyavailable
available at:
at: https://ssrn.com/abstract=3162361
https://ssrn.com/abstract=3162361
Meaning:

The Law of Limitation is an adjective law i.e. aggregate of procedure or procedure Law, rule of
the procedure being rule of law does not make it bias means it doesn‟t take the favor of one
party. Condonation of Delay1 is the defined as the time extended for the prescribed period in a
certain suits by the Courts only when there is the sufficient cause provided by the appellant for
not „referring appeal‟ and „application made‟ within the meaning of the above Section, the
delay will be considered condoned, exception in case of execution applications.2 Section 5 is
applicable on criminal cases because it is not prohibiting any other Section.

Reason why Condonation of Delay includes only „Appeal‟ and „Application‟ and not
“Suit”.

However, Section does not include the “suit”, but includes appeal and application, the major
rationale behind this is that if Section 53 includes “Suit” then Section 3 of the Act gives the
provision for the Bar of Limitation, Thus, if there is any institution of suit, appeal is preferred
and the application is made after the prescribed period the Suit shall be dismissed, but the
limitation act is not a defense so that if there is any extension in the particular suit which is given
by the Sections 4 to 24 which deals with “prescribed period” these Section will be Considered.

The reason behind this is that: For „Suit‟ extension given is of 3 to 12 years and for appeal and
application it if for 6 months, some concession is allowed to the appeal and application .Hence, if
the Suit is included in Section 5 of the Act, then Section 3 of the act will be irrelevant, the
particular Section will be dilute and will have no effect. Hence, Section 5 is an exception to the
rule laid down in Section 3 of the Act. It also does not include execution proceedings.

1
Limitation Act, 1963.
2
Order XXI of the Code of Civil Procedure, 1908.
3
Limitation Act, 1963.

Page 2

Electroniccopy
Electronic copyavailable
available at:
at: https://ssrn.com/abstract=3162361
https://ssrn.com/abstract=3162361
For taking the benefit of the Section 5 in order to make application the applicant must have
“sufficient cause” for the delay, and it is upon the discretion of the Court in order to grant
application to the applicant, when the Court thinks that applicant has the sufficient cause in order
to not preferring the appeal and application, the court may condone delay.

The Court while dealing with the application may keep two conflicts in mind.

1. The court will decide the cases on merits rather than going on the technical ground of
delay without adjudicating on the issues.
2. The court must also take into the consideration the non-filing of the appeal or application
by the applicant means, the applicant valuable right has been created and the right shall
not be defeated4 by the Court.

General principles for the condonation of delay:

I. The party must satisfy the Court, in order to delay for not preferring the appeal or
application within the prescribed time, if the party doesn‟t have the sufficient cause,
later the period may not be relevant.5
II. The entire period between the last date of the limitation to the actual date of the filing
of the application should cover the explanation has to cover the entire period of delay.
The event should occur before the expiration of the limitation period, if it has
occurred after the expiration of period the sufficient cause will not be considered.
Hence, no appeal and application can be preferred in such cases.6

4
Ram Nath Sao Vs. Gobardhan Sao (2002) 3 SCC 195.
5
State of Manipur Vs. All Manipur R.P.V.S Teachers Assen. A.I.R 1976.
6
Rewa Coldfield case.

Page 3

Electronic copy available at: https://ssrn.com/abstract=3162361

 III. The proof of the sufficient cause by the applicant does not bound court to preferred
appeal and application; it is the discretion of the Court to prefer the appeal and
application.7
IV. The discretion of the Court must not be mala fide or arbitrary, it is Judicial.

The expression Sufficient Cause:

The above expression has not been defined in the Act, it has a wider meaning, it is very
comprehensive and broad in nature. The cause must be beyond the control of the invoking. In
order to advance the cause of justice it is construed liberally.8

The two rules were laid down with regards to the expression „sufficient cause‟ by the Court.9

a) The cause must be beyond the control of the invoking.

b) The parties must not be lacking bona fide, not be shown to be negligent or inactive.

Instances where delay condoned:

i. Applicant suffering from fever.

ii. Applicant suffering from mental shock because of son‟s death and also because of his
wife‟s illness.
iii. Appellants being old people and minor girl unable to understand the procedure of the
Suit.
iv. Illiterate father delay in filing the appeal.

Instances where delay not condoned

i. Delay condoned because of collecting the money from the people involved in the case.

7
Manohar Joshi Vs. Nitin Bhanrao Patil (1996) 1 SCC 169.
8
State of W.P Vs. Howrah Municipality (1972) 1 SCC 366.
9
Krishna Vs. Chattappan (1889) ILR 13M 269.

Page 4

Electronic copy available at: https://ssrn.com/abstract=3162361

ii. If the appellant had to collect a certified copy for 3 months after it is ready to his
knowledge he had to arrange money to pay the cost of the copy is no ground of
condonation.10

A liberal approach to the term “sufficient cause” was given by the Court.11

a) Court main aim is to provide justice, refusing to condone the delay can result in
meritorious matter.
b) Every day Delay , there is no need to give schedule of each and every minute.
c) Justice or Technicality , it better to provide justice rather than going with technicality.
d) No presumption from the side of the Court, that the party is voluntarily late.

10
Gurumukh Singh Vs. State of Punjab AIR (1970) Punj. 282.
11
Collector, Land Acquisition, Anantnag Vs. Musammath Khatiji AIR 1987 SC 1353.

Page 5

Electronic copy available at: https://ssrn.com/abstract=3162361

 xxxx------Thank you------xxxx

Page 6

Electronic copy available at: https://ssrn.com/abstract=3162361