Balakrishnan vs Ayyasami

V. Balasubrahmanyan, J.—This is an application for excusing the delay in filing a second appeal. The judgment sought to be appealed from

was passed by the First Additional Sub-Court, Cuddalore. In that appeal, the petitioner was the respondent. The petitioner was not present in

person or by counsel at the time when the appeal was called. Hence the appeal was heard and decided in his absence. The petitioner then filed

before the Sub-Court an application under Order 41, Rule 21 of the CPC to set aside the ex parte determination of the appeal. The petitioner

explained that at the material time he was suffering from jaundice, and this illness prevented him from appearing at the hearing of the appeal. The

Sub-Court was not however, satisfied with this explanation. It accordingly rejected the petitioner''s application. The petitioner filed an appeal in m

that order to this Court in C.M.A. No. 617 of 1981. That appeal was heard and dismissed. A few days thereafter, the petitioner presented his

second appeal in this Court from the ex parte judgment and decree in the appeal. The overall delay in the filing of the second appeal has been

calculated at 285 days.

In this petition before me u/s 5 of the Limitation Act, learned Counsel for the petitioner submits that there was sufficient cause which prevented

the petitioner from filing the second appeal within time. He urges that in judging the question of delay as well as the sufficiency of cause for the

delay, regard must be paid to the period of time covered by the petitioner''s proceedings under Order 41, Rule 21, both in the trial Court and in

this Court. Learned Counsel argues that when the policy of the law is to make allowances for the time taken by a suitor to pursue remedies bona

fide believed by him to be appropriate for obtaining the requisite relief, and when provision is specifically made in the Limitation Act u/s 14 not to

take note of delays occurring in such contingencies, the period of time during which the proceedings under Order 41, Rule 21 were pending cannot

be counted out against the petitioner while adjudging the real element of delay in the filing of the second appeal. Learned Counsel submits that the

present case must be regarded as a fortiori because in pursuing the remedy under Order 41, Rule 21, the petitioner had something more as an

extenuating circumstance than mere bona fides of his party; for, the remedy that he pursued was indubitably available to him under the law, and he

was entitled to pursue it without any one''s leave. If these facts are taken into consideration, learned Counsel pointed out, the delay cannot be put

at 285 days, but at the most, 15 days or so. Learned Counsel pleaded that some reasonable time would be required for a party to have the second

appeal prepared and filed in this Court, and a fortnight in between can hardly be regarded as unreasonable.

I agree with the submissions made by learned Counsel for the petitioner. The Limitation Act prescribes in its Schedule periods of limitation for

applications and appeals. The Schedule, considered in itself, is no respecter of persons. The time-limits apply to one and all. Section 5 of the Act,

however, provides that exceptions can be made by the Court in individual cases where applications and appeals are filed beyond the period

prescribed in the Schedule. The requirement of this section is that the Court should be satisfied that the party seeking its indulgence had sufficient

cause for not preferring the appeal or application within the time-limited. The provision does not lay down any standard test. It does not I even

require that the reason adduced by the party for the delay must be capable of being accepted by the Court as sufficient cause by the application of

any objective standard. On the contrary, the section clearly contemplates that the Court has got to place itself in the position of the person

concerned and find out if the delay can be said to have resulted from the cause which he has adduced and whether that cause can be regarded, in

the peculiar circumstances of his case, as sufficient. The test of sufficient cause, then, is a purely individualistic test and not an objective test. This at

once means that no two cases can be treated alike. As a matter of general court experience most of the requests for condonation of delays in

appeals and applications happen to be based on what may be described as the personal equation, such as illness of the party, death in the family

and the like. On this account, we cannot imagine that ''sufficient cause'', within the meaning of Section 5, can be considered to exist only in such

kinds of cases. Nor can we restrict the operation of this provision only to those cases where the party is prevented by forces beyond his control

from filing the appeal or application in time. For, there is a sense in which a party lean prevent himself in various ways from filing the proceedings

within time. The truth is that the statute of limitations has left the conception of ''sufficient cause'' delightfully undefined, thereby leaving to the Court

a well-intentioned latitude of mind and discretion to decide in individual cases whether circumstances exist establishing sufficient cause. It may be

said, in one sense, that the categories of ''sufficient cause'' are never closed. But, in other sense, as earlier indicated, there are no categories of

sufficient cause each case spells out a unique experience and has to be dealt with by the Court as such.

So far as the petitioner is concerned, he has satisfied me that he had sufficient cause for not preferring the appeal within the time limited.

Although technically the delay is 285 days, it is quite clear that during all but the last 15 days, the petitioner had been preoccupied with proceedings

under Order 41, Rule 21 of the Code, which, to him, had held out hopes of favourable orders all the while. The fact that those proceedings

happened to go against him ultimately is no ground for disregarding the time lag involved. Even the last 15 days, in my view, cannot be regarded as

delay of a sort which will fall outside the benignant scope of Section 5.

Learned Counsel for the respondent urges that the petitioner''s application before the Sub-Court under Order 41, Rule 21 of the Code, cannot

provide sufficient cause for the delay in the filing of the second appeal, and that the petitioner ought to have filed it within time, even while pursuing

the other remedy. This argument is clearly out of place in the present discussion. If the petitioner had followed the course suggested, he would not

be here, would be, with his petition u/s 5 of the Limitation Act? When a party has not filed the appeal within the time and hence invokes the

requisite powers of the Court to condone the delay, the argument that he ought to have filed the appeal within time is not a legal argument at all;

since it does not contribute anything pertinent to the discussion on hand.

It is true that a party against whom an ex parte judgment has been rendered can very well appeal from it to an appellate forum. But when the

Code grants him another remedy to move the same Court which rendered the ex parte judgment for redress, he is, in my judgment, not only

entitled to pursue that remedy, but also entertain a reasonable hope of its success. It would be a sad commentary on Order 41, Rule 21 and the

rationale behind that provision if we were to hold that persons in the petitioner''s position should put little or no faith in that remedy even while

pursuing it. We may take it that the provision has been put into the body of the Code in all seriousness so that parties may resort to it whenever it is

available. If the argument addressed for the respondent were to hold good, then that would not only have the effect of consigning this remedy into

desuetude, but would also tend to undermine the very credibility of our Court system which is charged with administering the provision.

But that as it may, the question for decision in this case is whether there was sufficient, cause for the petitioner filing the second appeal out of

time, having particular regard to the proceedings taken by him under Order 41, Rule 21 and the inevitable time-lag they entailed. In my view, the

very pendency of those proceedings furnished sufficient cause for the delay in the filing of the second appeal.

The petition is accordingly allowed, but, in the circumstances, there will be no order as to costs.