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S. Pakkiaraj v. S.M Kulasekaran
Judgment Summary
Factual and Procedural Background
C.M.P. No. 8475 of 1993 sought condonation of a delay of 134 days in filing the First Appeal against the judgment and decree dated 16.10.1992 in O.S. No. 250 of 1988 on the file of the Sub Court, Vellore. The supporting affidavit did not specifically state when the copy application for the judgment and decree was made, but learned counsel for the petitioners admitted that the application for certified copies was made only after 90 days from 16.10.1992.
The petitioners relied on the contention that delay in obtaining certified copies (even if initiated after the prescribed period) and subsequent delay in filing the appeal could be excused under Section 5 of the Limitation Act if sufficient cause is shown. Counsel relied on an order of Srinivasan, J. (C.M.P. Nos. 683 and 684 of 1993, dated 03.09.1993) which interpreted earlier Division Bench and single-judge authority to allow a party to explain delay in making the copy application itself under Section 5.
The bench delivering the present opinion examined that submission, referred to earlier decisions (including a Supreme Court decision), and concluded that where the application for copies is made after the prescribed period (90 days for appeals/revisions in the cited contexts), the period from the date of the judgment or order up to the filing of the copy application must be treated as part of the delay and the portion up to the prescribed period cannot be excused under Section 5. Consequently, C.M.P. No. 8475 of 1993 was dismissed with no costs.
Two other Civil Miscellaneous Petitions were disposed of on the same reasoning:
- C.M.P. No. 9815 of 1993 — seeking condonation of 109 days' delay in filing a Civil Revision Petition (counsel represented that copy application was made beyond 90 days as per Article 131) — dismissed, no costs.
- C.M.P. No. 14089 of 1991 — seeking condonation of 77 days' delay in preferring a review petition (prescribed limitation for review being 30 days under Article 124; counsel represented that copy application was made after 30 days) — dismissed, no costs.
Legal Issues Presented
- Whether delay in filing an appeal or revision can be condoned under Section 5 of the Limitation Act when the application for certified copies of the judgment and decree was made only after the expiry of the prescribed period of limitation (i.e., whether delay antecedent to a copy application can be excused under S.5).
- Whether the time taken by a court to furnish certified copies can be excluded under Section 12 of the Limitation Act when computing the delay for an appeal or revision, particularly where the copy application itself was filed after the prescribed period.
Arguments of the Parties
Petitioners' Arguments (as represented by their learned counsel)
- Although the copy application for certified copies was made after the prescribed 90-day period, Section 5 of the Limitation Act permits the court to excuse delay "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". Thus, the petitioners submitted that delay from the date of the decree or order could be excused under S.5 if sufficient cause was shown.
- Reliance was placed on a recent order of Srinivasan, J. (C.M.P. Nos. 683 and 684 of 1993) which — after referring to the Division Bench judgment and Ratnam, J.'s judgment and to Parthasarathy v. State of A.P. (A.I.R. 1966 S.C. 38) — held that a party who files the copy application after the expiry of the prescribed period may explain that period itself under Section 5 as part of the overall delay.
- The petitioners' counsel also drew attention to a passage in Bechi v. Ashan Ullah Khian (I.L.R. 12 Allahabad 461) suggesting that delay antecedent to application for a copy, if due to wholly unavoidable causes, could be considered under Section 5.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ramlal v. Rewa Coalfields Ltd., A.I.R. 1962 S.C. 361 | Interprets the phrase "within such period" in Section 5: it means the period which ends with the last day of limitation prescribed; party must show why appeal was not filed on the last day and must explain the subsequent delay day by day. | The court relied on this Supreme Court interpretation to hold that delay up to the prescribed last day cannot be excused under Section 5 when the copy application itself was filed after the prescribed period; this interpretation is central to dismissing the petitions. |
| Ramalingam Pillai v. Arunachalam Pillai, (1988)2 M.L.J. 139 (Judgment of Ratnam, J.) | Applied the principle that where a copy application is filed after expiry of the prescribed period (90 days in that case), the entire period from the date of the judgment to the filing of the second appeal is to be treated as delay; held the petitioner could not be permitted to seek condonation of such delay. | The Division Bench concurrence with this judgment was noted; the present court used Ratnam, J.'s reasoning (including the example of 159 days' delay) to support the conclusion that delay antecedent to the copy application up to the prescribed period cannot be condoned under S.5. |
| Land Acquisition Officer v. V. Kannan Pillai, (1992)2 L.W. 28 (Division Bench) | The Division Bench judgment concurred with the earlier judgment of Ratnam, J. in Ramalingam Pillai (i.e., it followed the same approach on treating delays where copy application was filed after the prescribed period). | The present court treated the Division Bench's concurrence with Ratnam, J. as binding precedent supporting the refusal to condone delay caused by copy applications filed after the prescribed period. |
| Parthasarathy v. State of A.P., (1965) 2 M.L.J. (S.C.) 174 = A.I.R. 1966 S.C. 38 | Was referred to in the Division Bench judgment and in Ratnam, J.'s judgment (specific principle not detailed in the opinion other than being cited in context with S.5 interpretation). | The opinion notes that this Supreme Court decision was referred to by earlier courts; it was part of the body of authorities considered by Srinivasan, J., and was mentioned in the present court's discussion of precedents. |
| Bechi v. Ashan Ullah Khian, I.L.R. 12 Allahabad 461 (D.B.) | Contains a passage suggesting that delay in applying for a copy, if due to wholly unavoidable causes beyond litigant's control, might be considered under Section 5 (i.e., antecedent delay could be a matter for S.5). | The court observed this authority but distinguished it on the ground that that decision had not considered the meaning of "within such period" as expounded by the Supreme Court in Ramlal (A.I.R. 1962 S.C. 361); thus the Allahabad decision did not alter the court's application of Supreme Court authority. |
Court's Reasoning and Analysis
The court's analysis centers on the correct interpretation of the phrase "within such period" as it appears in Section 5 of the Limitation Act. The learned counsel for the petitioners urged that "within such period" should be read as "during the prescribed period" so that delay counted from the date of the decree or order (including any delay before applying for copies) could be excused under Section 5 if sufficient cause were shown.
The court rejected that interpretation, relying primarily on the Supreme Court decision in Ramlal v. Rewa Coalfields Limited (A.I.R. 1962 S.C. 361). Ramlal was read as holding that "within such period" means the period which ends with the last day of limitation prescribed; accordingly, a party seeking condonation under Section 5 must explain why the appeal was not filed on the last day and must explain any subsequent delay day by day. The court emphasized that to read "within such period" as meaning "during such period" would be repugnant in the context of S.5 as explained in Ramlal.
The court also relied on Ratnam, J.'s judgment in Ramalingam Pillai (and the Division Bench decision in Land Acquisition Officer v. V. Kannan Pillai which concurred with it). Those authorities were applied to the present facts where the copy application itself was made after the prescribed 90-day period: when a copy application is filed after the prescribed period, the interval from the date of the judgment or decree until the date of filing the copy application must be treated as part of the total delay in filing the appeal or revision. The portion of that delay up to the prescribed period (e.g., the first 90 days) cannot be excused under Section 5.
Although the court acknowledged the passage in Bechi v. Ashan Ullah Khian suggesting that wholly unavoidable antecedent delay could be considered under Section 5, it found that that Allahabad decision did not address the interpretation of "within such period" as set out by the Supreme Court in Ramlal, and therefore was not persuasive to displace the Supreme Court's interpretation.
The court recognized that the applied interpretation may produce hardship in individual cases but stated that such hardship, if genuine, is a matter for legislative remedy rather than judicial reinterpretation of the Supreme Court's authoritative construction of Section 5.
Holding and Implications
Holding: The court dismissed C.M.P. No. 8475 of 1993. DISMISSED. No costs.
The court applied the same reasoning to dismiss two further petitions:
- C.M.P. No. 9815 of 1993 (condonation of 109 days' delay in filing a Civil Revision Petition) — DISMISSED. No costs.
- C.M.P. No. 14089 of 1991 (condonation of 77 days' delay in preferring a review petition) — DISMISSED. No costs.
Implications:
- The direct effect on the parties is the dismissal of their applications for condonation of delay; the appeals/revision/review petitions remain time-barred in the absence of successful condonation.
- The court adhered to Supreme Court precedent (Ramlal) and followed the reasoning of Ratnam, J. and the Division Bench that concurred with him. The opinion does not purport to lay down a new or different legal principle but applies existing authoritative interpretations of Section 5. The court indicated that if legislative change is desired to relieve hardship caused by this interpretation, the remedy lies with the Legislature.
Clerical signature or administrative notation appearing in the opinion: "KA/RR/VCS".
C.M.P No. 8475 of 1993 is for excusing the delay of 134 days in filing the First Appeal against the judgment and decree dated 16.10.1992 in O.S No. 250 of 1988 on the file of Sub Court, Vellore.
2. Though it is not specifically stated in the affidavit in support of the petition, the learned counsel for the petitioners admits that the copy application for the abovesaid judgment and decree dated 16.10.1992 was made only after 90 days from the abovesaid date 16.10.1992 Yet, according to the said counsel, the Civil Miscellaneous Petition cannot be dismissed on the footing of the decision given by the Division Bench of this Court in The Land Acquisition Officer v. V. Kannan Pillai, (1992)2 L.W 28. I was also a party to the said Division Bench judgment and the said judgment only concurred with the earlier judgment of Ratnam, J. in Ramalingam Pillai v. Arunachalam Pillai, (1988)2 M.L.J 139.
3. The submission of the said learned counsel is that even when the copy application is made after the abovesaid 90 days that is, after the expiry of the period of limitation provided for under the relevant Article of the Limitation Act, the delay in filing the copy application as stated above, could also be excused under S. 5 of the Limitation Act, if sufficient cause is shown and that neither the decision of Ratnam, J. nor the abovesaid Division Bench judgment would be a bar for the court to consider in a given case whether there is justification for excusing the said delay in filing the copy application itself under S. 5 of the Limitation Act.
4. In this connection, the learned counsel also drew my attention to a recent order of Srinivasan, J. in C.M.P Nos. 683 and 684 of 1993 dated 3.9.1993 In that case, the impugned order, sought to be revised in revision was dated 19.11.1991 and the copy application for the said order was made only on 30.10.1992 which was well beyond the period of 90 days from 19.11.1991 In that context Srinivasan. J., after referring to the abovesaid Division Bench judgment and the judgment of Ratnam, J. and also the decision in Parthasaralhy v. State of A.P (1965) 2 M.L.J (S.C) 174 = A.I.R 1966 S.C 38, (which was referred to both in the said Division Bench judgment and the judgment of Ratnam, J.), held as follows:
“The Bench has not held that no application under S. 5 of the Limitation Act is maintainable, if applications for certified copies of the judgment and decree are made beyond the period of 90 days. On the other hand, the Bench has only held that the period taken by the court for issuing certified copies of judgment and decree should not be excluded under the provisons of S. 12 of the Limitation Act when the delay in filing the appeal or revision is calculated by the appellant or petitioner….. On the other hand, the Division Bench has not held that S. 5 cannot be invoked by a party who has applied for certified copies of judgment and decree after the expiry of a period of 90 days. The party has to explain that period also as part of the delay”.
Thus, according to Srinivasan, J. also the party who files copy application after the expiry of the abovesaid period of 90 days could explain under S. 5 of the Limitation Act that delay also, in filing the copy application itself, apart from explaining any subsequent delay before filing the appeal or revision as the case may be. In that way only Srinivasan, J. has chosen to interpret the abovesaid judgment of the Division Bench and the said interpretation is now canvassed before me for approval by the learned counsel for the petitioners.
5. With due respect to my learned brother Srinivasan, J. I am unable to concur with his interpretation of the Division Bench judgment, particularly in the light of the Supreme Court decisions relied on by the said Bench and also by Ratnam, J.
6. To a great extent, the whole thing revolves round the meaning to be given to the term “within such period” appearing in S. S of the Limitation Act, which runs as follows:
“5. Extension of prescribed period in certain cases:— Any appeal or any application, other than an application under any of the provisions of O. 21 of the 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.”
No doubt, the term “prescribed period” in the abovesaid S. 5 means the period or limitation prescribed in each case. The present case being one where time has to be computed for preferring an appeal to this Court, Art. 116(a) prescribes the said period of limitation as 90 days form “the date of decree or order” and, if the case is one for revision, the said period as prescribed in Art. 131 of the Limitation Act is once again 90 days from “the date of the decree or order or sentence sought to be revised”. According to the learned counsel for the petitioners it is clear even from a reading S. 5 that the delay from the very date of decree or order, appealed against or sought to be revised could be excused under S. 5 if sufficient cause is shown for not preferring the appeal or revision “within” the abovesaid period of limitation. In other words, the said counsel wants to read the expression “within such period” found in S. 5 as meaning “during the prescribed period”, that is, during the abovesaid period of limitation.
6-A. But the Supreme Court decision in Ramlal v. Rewa Coalfields Limited, A.I.R 1962 S.C 361, which has been relied on in the abovesaid Division Bench judgment as well as the above referred to judgment of Ratnam, J. does not interpret the said expression ‘within such period” as stated by the abovesaid counsel. It has only observed thus:
“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 sufficient 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 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”.
6-B. That is why the following passage in the judgment of Ratnam, J. referred to supra, was extracted by the abovesaid Division Bench, with approval in its judgment:
“S. 5 of the Limitation Act contemplates cases where a party having obtained all the required copies well before the expiry of the period of limitation prescribed for preferring an appeal, has been unable to do so, even on the last day owing to circumstances beyond his control and thus viewed, the petitioner cannot be permitted to approach this Court and ask for the condonation of the delay of 159 days”. [emphasis supplied]
It is significant that the last part of the abovesaid passage definitely says, “the petitioner cannot be permitted to approach this Court and ask for the condonation of the delay of 159 days”. [emphasis supplied]
The abovesaid 159 days delay was, as a result of the copy application itself having been filed after the expiry of the prescribed period of limitation. In Ramalingam Pillai v. Arunachalam Pillai, 1988-2 M.L.J 139, the judgment appealed against was dated 14.8.1987 and the copy application was made only on 16.11.1987, that is, only after the abovesaid 90 days period expired on 13.11.1987 The copy was made ready on 29.1.1988 and the Second Appeal was filed on 19.4.1988 In that context only, Ratnam, J. observed thus:
“In as much as the petitioner is not entitled to exclude the time spent in obtaining the copies, it has to be taken that the delay in this case is from 13.11.1987 till 19.4.1988 In other words, the delay is 159 days and not 84 days as stated by the petitioner.
6-C. It is with reference to this delay of 159 days (that is, the period between 14.8.1987 and 19.4.1988, amounting to 249 days, above said 90 days) Ratnam, J. observed that the petitioner cannot be permitted to approach this Court for condonation of the said delayn and the abovesaid Division Bench concurred with the said view. It is clear from the expression used, viz. “cannot be permitted”, that it is not possible at all to condone the said delay under S. 5 of the Act since part of the said delay is due to the fact that copy application itself was filed after the abovesaid 90 days. No doubt, there is no time limit as such for making an application for obtaining copy of the judgment and decree appealed against. But, if such an application is made after the prescribed period of limitation of 90 days, the whole period beginning from the date of the judgment and decree till the date of filing of the copy application would be certainly taken as forming part of the whole delay in filing the appeal or revision, as the case may be. But, that portion of the said delay upto the abovesaid 90th day from the date of the judgment and decree, cannot be excused at all under S. 5 of the Limitation Act. This conclusion is only the necessary consequence of interpretation put by the Supreme Court in relation to the expression ‘within such period’ found in S. 5 of the Limitation Act in A.I.R 1962 S.C 361.
10. No doubt the learned counsel for the petitioners drew my attention to the following passage in Bechi v. Ashan Ullah Khian, I.L.R 12 Allahabad 461 at 473 (D.B):—
There may, of course be cases in which delay in applying for a copy…. is due to wholly unavoidable causes beyond the control of the litigant, but this delay being antecedent to the application… cannot be called ‘time requisite for obtaining a copy’ within the meaning of S. 12…. and if there has been delay under excusable or unavoidable circumstances, that would be a matter for consideration under S. 5. …”
So, according to the learned counsel the delay antecedent to the application for copy of the judgment and decree may be considered for being excused under S. 5. But, this Allahabad decision has not considered the meaning of the term ‘within such time’ found in S. 5, as expounded by the Supreme Court in A.L.R 1962 S.C 361.
8. No doubt, there may be hardship in some cases in view of the abovesaid interpretation given by the Supreme Court in A.I.R 1962 S.C 361, which the abovesaid Division Bench and Ratnam, J. followed. But, it is for the Legislature to set it right, if in its wisdom, it thinks the said hardship is a genuine one deserving to be relieved.
9. Hence, in view of the Division Bench judgment referred to swupra, this Civil Miscellaneous Petition is dismissed. No costs.
10. C.M.P Nos. 9815 of 1993 and 14089 of 1991 have also to be dismissed on the same reasoning stated above. C.M.P No. 9815 of 1993 is for excusing the delay of 109 days in filing the civil Revision Petition. Here again, though the supporting affidavit does not say when actually copy application was made, the learned counsel for the petitioner fairly represented that the copy application was made beyond 90 days time prescribed under Art. 131 of the Limitation Act. Likewise, C.M.P No. 14089 of 1991 is for excusing the delay of 77 days in preferring the review petition. The prescribed of limitation in the case of review petition is 30 days as per Art. 124 of the Limitation Act. Here again, as per the representation of the learned counsel for the petitioner, the copy application was made after the abovesaid 30 days time. Therefore, both these Civil Miscellaneous Petitions are also dismissed. No costs.
KA/RR/VCS
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