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Judgment
Bakthavtasalam, J.—The question referred to us is whether an application under S. 5 of the Limitation Act for condonation of delay in filing
an appeal is maintainable, if the application for certified copies of the judgment and decree of the trial Court has been made after the expiry of the
time prescribed for the appeal. C.M.P. Nos. 14783, 15250, 13001, 13002, 11215 and 11216 of 1993 are filed to condone the delay in filing the
ASSR. No. 42494 of 1992, ASSR. No. 50879 of 1992, ASSR. No. 92793 of 1990, ASSR. No. 92795 of 1990, CMASR. No. 56162 of
1993 and CMASR. No. 56162 of 1993 respectively sought to be preferred to this Court against the judgment and decree made in L.A.O.P. No.
26 of 1990 on the file of Sub Court, Cuddalore, in L.A.O.P. N0. 8 of 1985 on the file of Sub Court, Poonamallee, in L.A.O.P. No. 106 of 1987
on the file of Sub Court, Arani, in L.A.O.P. No. 109 of 1987 on the file of Sub Court, Arani, in M.A.C.T.O.P. No. 250 of 1987 on the file of
Motor Accidents Claims Tribunal, Coimbatore and in M.A.C.T.O.P. No. 250 of 1987 on the file of Motor Accidents Claims Tribunal,
Coimbatore respectively.
When these petitions were posted before a Division Bench, to which one of us (Srinivasan, J.) was a party, the petitions were opposed by
Learned Counsel for the respondents on the ground that the petitions were not maintainable as the applications for obtaining certified copies of the
judgment and decree of the Court below have been made after the expiry of ninety days from the date of the delivery of the judgment in each case.
One of us (Srinivasan, J.) has expressed a view in Molukka Naidu and others v. R.V. Palaniappan (1993 TNLJ 280) that the petitions arc
maintainable and in each case the Court has to decide whether the delay is properly explained. However, Abdul Hadi, J. has taken a different view
in C.M.P. No. 14089 of 1991 etc. (S. Pakkiaraj v. S.N. Kulasekaran) by order dated 14.9.1993 since reported in S. Pakkiaraj Vs. S.N.
Kulasekaran, holding that an application filed under S. 5 of the Limitation Act is not maintainable if the application for certified copies of judgment
and decree of the lower Court has not been made within ninety days from the date of decree, the question depends upon the interpretation of the
decision of the Supreme Court in Ramlal, Motilal and Chhotelal Vs. Rewa Coalfields Ltd., ) and that of a Division Bench of this Court in The Land
Acquisition Officer v. Kannan Pillai and Others ( 1992 (2) L.W. 28) wherein the Division Bench has approved The Ruling in Ramalingam Pillai Vs.
Arunachalam Pillai and Others,
It is not necessary to refer to the facts, as alleged in the affidavits at this stage. Part II of the Limitation Act, 1963 speaks of limitation of suits,
appeals and applications. S. 5 of the Limitation Act, 1963 provides for extension of prescribed period in certain cases and it reads as follows:
...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 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....
The definition for the term ''period of limitation'' is found in S. 2(j) of the Limitation Act, 1963 (hereinafter referred to the as the ''Act'') and S. 2(j)
reads as follows:
period of limitation"" means the period of limitation 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 this Act....
S.12 is also relevant for the purpose of deciding the issue in this case which refers to the computation of period of limitation and it reads as follows:
Exclusion of time in legal proceedings:- (1) In computing the period of limitation for any suit, appeal or application, the day from which such period
is to be reckoned, shall be excluded. (2) In computing the period of limitation for an appeal or application for leave to appeal or for revision or for
review of a judgment, the day on which the judgment, complained of was pronounced and time requisite for obtaining a copy of the decree,
sentence or order appealed from or sought to be revised or reviewed shall be excluded.
(3) Where a decree or order is appealed from or sought to be revised or reviewed, or where an application is made for leave to appeal from a
decree or order, the time requisite for obtaining a copy of the judgment on which the decree or order is founded shall also be excluded.
(4) In computing the period of limitation for an application to set aside an award, the time requisite for obtaining a copy of the award shall be
excluded....
In Ramalingam Pillai Vs. Arunachalam Pillai and Others, a question arose as to whether the appellant who preferred an appeal, is entitled to the
benefits of computing the period of limitation where such an application has been made after the prescribed period for preferring the appeal. In that
case, it has been held that when the petitioner, who had admittedly made an application for copies of the judgment and decrees after the expiry of
the period of limitation, cannot claim to exclude the time taken for obtaining the copies while computing the period of ninety days under Article
116(a) of Limitation Act, 1963. This question again came up for consideration before Padmini Jesudurai, J. in an unreported decision in C.M.P.
No. 2328 of 1991 in CRPSR. No. 5453 of 1991 and by order dated 17.7.1991, the learned Judge rejected the plea that S. 5 of the Limitation
Act can never be invoked in a case where the copy application has been made after the period of limitation. In that case, the learned Judge
referred to the decision in Ramalingam Pillai Vs. Arunachalam Pillai and Others, and held that the above mentioned decision cannot be taken as
laying down the law and that what is laid down in the above decision is not that if the copy application is made after the period of limitation, S. 5 of
the Limitation Act can never be invoked. A Division Bench of this Court in The Land Acquisition Officer v. Kantian Pillai and others (1992 2 LW
28) has held that if the application for copy of the judgment and decree itself was made after the expiry of the period of limitation there is no scope
at all under S. 12 of the Limitation Act for exclusion of the time taken for obtaining the said copy while computing the period of limitation. In that
case, the Division Bench considered the scope of Art. 116(a) of the Limitation Act, 1963, under which a period of 90 days is prescribed for
preferring an appeal before this Court and time commences to run from the date of the decree. The Division Bench referred to a passage in
Ramalingam Pillai Vs. Arunachalam Pillai and Others, and accepted the view of a learned Single Judge of this Court. One of us, (Srinivasan, J.)
had an occasion to consider the issue in the case in Molukka Naidu and 3 others v. R.V. Palaniappan ( 1993 TLNJ 278:1993 2 LW 382) and
explained the decision of the Division on Bench in The Land Acquisition Officer v. Kannan Pillai and others (1992 2 LW 28) mentioned above. In
that case, one of us (Srinivasan, J.) following the judgment of the Supreme Court in A.D. Partha Sarathy Vs. State of Andhra Pradesh, has held
that if the application for copies of the judgment and decree are filed after the period of 90 days from the date of judgment, naturally, the time
taken by Court for issuing certified copies cannot be excluded under S. 12 of the Act. It has also been held that the Division Bench has not held
that S. 5 cannot be invoked by a parry who has applied for certified copies of judgment and decree after the expiry of a period of 90 days and that
the party has to explain that period also as part of the delay. However, Abdul Hadi, J. in an unreported decision in C.M.P. No. 14089 of 1991
etc. (S. Pakkiaraj v. S.N. Kulasekaran) dated 14.9.1993, (since reported in S. Pakkiaraj Vs. S.N. Kulasekaran, differed from the decision
rendered by one of us (Srinivasan, J.) which is reported in Molukka Naidu and others v. R.V. Palaniappan ( 1993 TNLJ 280 : 1993 2 LW 382)
and also other decisions, cited supra, except that of the decision rendered by Padmini Jesudurai, J. in C.M.P. No. 2328 of 1991 in CRPSR. No.
5453 of 1991 dated 17.7.1991, which has not been brought to the notice of any of the learned Judges, who decided the issue, in the decisions
cited above.
In Ramlal, Motilal and Chhotelal Vs. Rewa Coalfields Ltd., the Supreme Court had an occasion to consider the scope of Arts. 5 and 14 of the
Limitation Act, 1908. The short question that fell before the Supreme Court for consideration was with regard to construction of S.5 of the
Limitation Act, 1908. The appellant therein, a firm, suffered an exparte decree and the decree was passed on 9.11.1954. Against the said decree,
the appellant therein preferred an appeal on 17.2.1955. On 19.2.1955, the appellant filed an application under S. 5 of the Limitation Act and
prayed that one day''s delay in filing the appeal should be condoned because one of the partners of the firm, fell ill on 16.2.1955, the last day in
filing the appeal. The delay was not condoned and the appeal was dismissed on 6.8.1955. When this issue came up before the Supreme Court, the
Supreme Court considered the scope of S. 5 of the Limitation act, 1908 and also approved the observations of this Court in Krishna v.
Chathappan (I.L.R.13 Mad 269) and it has held as follows: (at page 363)
...In construing S. 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of
limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In
other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the
decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should no be light-heartedly disturbed.
The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone
the delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that
behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan (ILR 13
Mad 269),
S. 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be
exercised upon principles which are well understood; the words ''sufficient cause'' receiving a liberal construction so as to advance substantial
justice when no negligence nor inaction nor want of bona fide is imputable to the appellant....
In that case, the Supreme Court, construing the term ""within such period'' has held as follows: (at page 364)
...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 for 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...
The Supreme Court in that case has emphasised the fact that even after sufficient cause has been shown a party is not entitled to the condonation
of delay in question as a matter of right and the proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction
vested in the Court by S.5 of the Act. Nowhere in that decisions it has been held that an application under S.5 of the Limitation Act is not
maintainable. In A.D. Partha Sarathy Vs. State of Andhra Pradesh, the Supreme Court has construed sub-section (2) of S.12 of the Limitation
Act, 1963 and also its object and held as follows: (at page 40)
...Now, coming to sub-section (2) of S.12 of the Limitation Act, the object of the said sub-Section is clear and it is to enable a party who seeks to
file an appeal against an order to obtain a copy thereof, for without such copy he cannot make an effective representation against the validity of the
order. For that reason, in computing the period of limitation the time taken for obtaining a certified copy of the order is excluded. It excludes time
in the course of computation; it does not add to the period of limitation any period earned earlier. In computing or calculating the period of
limitation from a particular point the sub-Section enables the exclusion of a time from that period caused by an event that intervened between the
commencement and the termination of the said period. It has no concern with any events anterior to the commencement of the period of limitation
or posterior to the said period. If time taken for obtaining a copy of the order before the commencement of the period of limitation could be,
excluded, on the party of reasoning, time taken for obtaining a copy of the order after the period of limitation also could be excluded. This would
lead to an anomalous position: a party can keep quiet till the period of limitation has run out and thereafter apply for a certified copy of the order
and claim to exclude the time taken for obtaining the certified copy of the order from the period of limitation. That could not have been the intention
of the Legislature. The object of the Legislature, therefore, was to enable a party to exclude the time requisite for obtaining a copy of the order
after the period of limitation has commenced. The phraseology used in sub-section (2) of S. 12 of the Limitation act carried out that object. We,
therefore, hold that the petitioner cannot exclude the time requisite for obtaining a copy of the order before the High Court refused to give leave.
The petition is clearly out of time...
A close reading of the decision of the Supreme Court, mentioned above, clearly shows that the object of the Legislature was to enable a party to
exclude the time requisite for obtaining a copy of the order after the period of limitation has commenced. What all the Supreme Court has stated is
that a party cannot keep quiet till the period of limitation has run out and thereafter apply for a certified copy of the order and claim to exclude the
time taken for obtaining the certified copy of the order from the period of limitation. Here also, we are not able to see that the Supreme court has
held that a petition under S. 5 of the Limitation Act, 1963 itself is not maintainable.
When an application is filed for condoning the delay under S. 5 of the Act, in our view, the only requirement for the appellant/applicant is to
satisfy the court that he had sufficient cause for not preferring the appeal or making the application within such period. Art.116 of the Limitation
Act, 1963 is as follows:
Description of suit (1) Period of limitation (2) Time from which Period begins to run (3)
Under the Code of Civil Procedure, bl908
(a) to a High Court from any decree or order Ninety days The date of the decree or order.
(b) To any other Court from any Thirty days The date of the decree or order.
We are not able to find how any appellant/applicant can be prevented from filing any application under S. 5 of the Act. Even if the
appellant/applicant has not applied for certified copies of decree and order before the prescribed period, in our view, it is to be seen whether
''sufficient cause'' has been shown that is all. The Supreme Court in The State of West Bengal Vs. The Administrator, Howrah Municipality and
Others, had a occasion to consider the term ''sufficient cause'' which occurs in S. 5 of the Act. After referring to the decision in Ramlal, Motilal and
Chhotelal Vs. Rewa Coalfields Ltd., , in the abovementioned decision, the supreme Court has held as follows: (at p. 755)
It has been pointed out be this Court in Ramlal, Motilal and Chhotelal Vs. Rewa Coalfields Ltd., as follows:
In construing S. 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period is that the
expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as
binding between the parties. In other words, when the period of limitation prescribed has expired the decree holder has obtained a benefit under
the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree holder by lapse of time should not
be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is
given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power
and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v.
Chattappan (1890) ILR 13 Mad 269, S. 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which
judicial power and discretion ought to be exercised upon principles which are well understood; the words ''sufficient cause'' receiving a liberal
construction so as to advance substantial justice when no negligence nor action, nor want of bona fide is imputable to the applicant.
From the above observations it is clear that the words ''sufficient cause'' should receive a liberal construction so as to advance substantial justice
when no negligence or inaction or bona fide is imputable to a party...
Looking at the leading decisions of the Supreme Court in Ramlal, Motilal and Chhotelal Vs. Rewa Coalfields Ltd., and in The State of West
Bengal Vs. The Administrator, Howrah Municipality and Others, mentioned above, the principle appears to be that the connotation ""sufficient
cause"" should receive a liberal construction so as to advance substantial justice and ordinarily, delay in preferring appeal should be condoned,
when no negligence or inaction or want of bona fide is imputable to a party. It is apt to refer to the decision of the Supreme Court in Dinabandhu v.
Jadumoni (A.I.R. 1954 S.C. 411) where the Supreme court has considered the decision in Krishna v. Chathappan (13 Mad 269) and observed
as follows:
...As was observed in the Full Bench decision in Krishna v. Chathappan (13 Mad 269) in a passage which has become classic, the words
sufficient cause"" should receive ""a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of ''bona
fides'' is imputable to the appellant....
So, in our view, in both the decisions in A.D. Partha Sarathy Vs. State of Andhra Pradesh, and in Ramalingam Pillai Vs. Arunachalam Pillai and
Others, mentioned above, it has been held that for the purpose of calculating the period of limitation, a party cannot claim to exclude the time taken
for obtaining the copies while computing the period of ninety days. Even Molukka Naidu and 3 others v. R.V. Palaniappan ( 1993 2 LW 382),
cited supra it has been held by one of us (Srinivasan, J.) that only S. 12 of the Act cannot be invoked by the party.
We are not able to find any decision which holds that the application under S. 5 of the Act itself is not maintainable, We are not able to find any
principle laid down by any Court as if S. 5 of the Act cannot be invoked at all by the party, who has applied for certified copies of decree and
order, after the prescribed period. What all required is, in our view, that a person who files an application under S. 5 of the Act, has to explain that
period also as a part of the delay. That is all. In fact, Padmini Jesudurai, J. in C.M.P. No. 2328 of 1991 in CRP. SR/5453 of 1991 dated
17.7.1991 has taken a similar view.
We are not able to agree with the view expressed by Abdul Hadi, J. wherein the learned Judge has held that S. 5 of the Act itself is not
applicable, if certified copies of the decree and order are obtained by filing a petition, after the prescribed period. It is one thing to say that
entertaining an application under S. 5 of the Act and then decide about its maintainability on merits and the other thing is to reject the same at the
threshold on the ground that it is not at all maintainable. So, when deciding, any petition, the only question to be decided is whether ''sufficient
cause'' has been shown for such delay or not. It cannot be said that any of the provision of the Limitation Act Prohibits in filing such an application
u/s 5 of the Act in any circumstance. We are not able to find any decision which holds that the application under S.5 of the Act is not all
maintainable. It is apple refer to the observations of the Supreme Court in Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and
Others, wherein it has been held as follows:
...It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of
removing injustice and is expected to do so....
As such, we are not able to hold that these C.M.Ps. are not maintainable, in these case where certified copies of judgment and decree have
been applied for and obtained after the last date prescribed under the provisions of the Act
In the result, the order of reference is answered as follows:
S. 5 of the Limitation Act does not prohibit any appellant/applicant to file an application under S. 5 of the Limitation Act to condone the delay.
Even if the appellant/applicant has applied and obtained certified copies of Judgment and decree after prescribed period of limitation in all cases
what is to be decided is whether sufficient cause has been shown or not.
Since we have answered the references above the petitions may be posted before the Bench which is constituted for hearing of such petitions for
final disposal.