This blog has witnessed a number of posts on law of limitation. While it definitely pertains to procedural aspects of law, it nonetheless gains prominent owing to the fact that the law of limitation acts as a prescription to limit the enforcement of rights and availment of legal remedies. Requiring the litigant to act with diligence, the law of limitation points out to the concerned the time limits within which they should act and also the consequences of such failure. Further, the incumbent courts also ensure that the delay is not condoned in a routine manner and thus rendering the law of limitation meaning less. In this context, the Supreme Court in a recently reported decision in Balwant Singh v. Jagdish Singh (AIR 2010 SC 3043) has revisited the law of limitiation to cull out the principles involved while condoning the delay. 8. In the case of P.K. “3. It would be noticed from a perusal of the impugned order that the court has not recorded any satisfaction that the explanation for delay was either reasonable or satisfactory, which is an essential prerequisite to condonation of delay.
5. This can hardly be said to be a reasonable, satisfactory or even a proper explanation for seeking condonation of delay. 6. Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribed and the courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the miscellaneous first appeal shall stand dismissed as barred by time. “8. Inasmuch as the abatement results in denial of hearing on the merits of the case, the provision of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be considered liberally. A simple prayer for bringing the legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside the abatement.
So also a prayer for setting aside abatement as regards one of the plaintiffs can be construed as a prayer for setting aside the abatement of the suit in its entirety. Abatement of suit for failure to move an application for bringing the legal representatives on record within the prescribed period of limitation is automatic and specific order dismissing the suit as abated is not called for. ] again had an occasion to construe the ambit, scope and application of the expression ‘sufficient cause’. The application for setting aside the abatement and bringing the legal heirs of the deceased on record was filed in that case after a considerable delay. The explanation rendered regarding the delay of 2381 days in filing the application for condonation of delay and 2601 days in bringing the legal representatives on record was not found to be satisfactory. 12. In the case of Ganeshprasad Badrinarayan Lahoti (supra), the High Court had rejected the application, primarily, on the ground that no separate application had been filed for substitution and for setting aside the abatement.
The Court held that the principles of res judicata were not applicable and the application could be filed at a subsequent stage. Thus, the delay was condoned. We must notice here that the earlier judgments of the equi benches and even that of larger benches (three Judge Bench) in the case of Ram Charan (supra) were not brought to the notice of the Court. Resultantly, the principles of law stated by this Court in its earlier judgments were not considered by the Bench dealing with the case of Ganeshprasad Badrinarayan Lahoti (supra). 13. As held by this Court in the case of Mithailal Dalsangar Singh (supra), the abatement results in the denial of hearing on the merits of the case, the provision of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be construed liberally. We may state that even if the term ‘sufficient cause’ has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the concerned party.
The purpose of introducing liberal construction normally is to introduce the concept of ‘reasonableness’ as it is understood in its general connotation. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. ], this Court had taken a liberal approach for condoning the delay in cases of the Government, to do substantial justice. Facts of that case were entirely different as that was the case of fixation of seniority of 400 officers and the facts were required to be verified. But what we are impressing upon is that delay should be condoned to do substantial justice without resulting in injustice to the other party. This balance has to be kept in mind by the Court while deciding such applications.
“7. In construing Section 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. ], the Supreme Court declined to condone the delay of 502 days in filing the appeal because there was no satisfactory or reasonable explanation rendered for condonation of delay. The provisions of Order 22 Rule 9, CPC has been the subject matter of judicial scrutiny for considerable time now. ] The expression ‘sufficient cause’ implies the presence of legal and adequate reasons. The word ‘sufficient’ means adequate enough, as much as may be necessary to answer the purpose intended. It embraces no more than that which provides a plentitude which, when done, suffices to accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of practical and cautious men.
The sufficient cause should be such as it would persuade the Court, in exercise of its judicial discretion, to treat the delay as an excusable one. These provisions give the Courts enough power and discretion to apply a law in a meaningful manner, while assuring that the purpose of enacting such a law does not stand frustrated. We find it unnecessary to discuss the instances which would fall under either of these classes of cases. The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. 15. We feel that it would be useful to make a reference to the judgment of this Court in Perumon Bhagvathy Devaswom (supra).
In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decided the matter on merits. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement. The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation. The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer’s lapses more leniently than applications relating to litigant’s lapses.
The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in re-filing the appeal after rectification of defects. Want of “diligence” or “inaction” can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. 16. Above are the principles which should control the exercise of judicial discretion vested in the Court under these provisions. The explained delay should be clearly understood in contradistinction to inordinate unexplained delay. Delay is just one of the ingredients which has to be considered by the Court. In addition to this, the Court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution.
The statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period of limitation for bringing the legal representatives on record, should be rejected unless sufficient cause is shown for condonation of delay. The larger benches as well as equi-benches of this Court have consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that these applications cannot be allowed as a matter of right and even in a routine manner. An applicant must essentially satisfy the above stated ingredients; then alone the Court would be inclined to condone the delay in the filing of such applications. Have a look at the decision. Subsequent to writing this post, we came across a later decision of the Supreme Court in which these principles have been reiterated. 17. We have heard the learned counsel for parties. Mr. P.S. Narasimha, senior advocate, appearing for the appellant submitted that the impugned order of the High Court cannot be justified on any legal ground.
He submits that the High Court having itself recorded the utter negligence of the respondents in pursuing the appeal at every stage, without any justification, condoned the delay. The learned senior counsel pointed out that there was no explanation, much less any plausible explanation to justify the delay of 3703 days in filing the application for bringing on record the LRs. 6th February, 1998. It was further submitted that there was no justification to permit the respondent No.3 to be impleaded as a party in the appeal. Learned counsel relied on the judgment of this Court in the case of Balwant Singh (dead) Vs. J agdish Singh 1 in support of the submission that the law of limitation has to be enforced in its proper prospective. Even though the Courts have power to condone the delay, it can not be condoned without any justification. Such an approach would result in rendering the provisions contained in the Limitation Act redundant and inoperative.
18. On the other hand, learned counsel for the respondents relied on the judgments of this Court in the case of N. Balakrishnan Vs. M . Krishnamurthy, Mithailal Dalsangar Singh & Ors. Vs. Annabai Devram Kini & Ors. Sardar Amarjit Singh Kalra (dead) by LRs Vs. P ramod Gupta (dead) by LRs. High Court in condoning the delay has merely advanced the cause of substantial justice. 19. We have considered the submissions made by the learned counsel. 20. In the case of M. Balakrishnan (supra), this Court again reiterated the principle that rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics, but seek their remedy promptly. “25. We may state that even if the term “sufficient cause” has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. “26. The law of limitation is a substantive law and has definite consequences on the right and obligation of party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case.
At Ngurah Rai International Airport in Denpasar with 1.75kg of heroin concealed on his body. AS a teenager in Australia, Czugaj was a burgeoning minor criminal. He had 14 convictions for offences including train fare evasion, wilful damage, drink-driving and receiving stolen property. Between 2003 and his April 2005 arrest, Czugaj appeared on several occasions in Brisbane Magistrates Court. Czugaj was an apprentice glazier, keen surfer, one of eight children born to Polish-Australian parents. He left his job in March 2005 and told his family that he was going to Cairns for a holiday. Czugaj’s parents said he was a “problem child” but had never been in serious trouble and had no drug history. Czugaj is one of the two remaining Bali Nine members still in Kerobokan Prison in Bali. He has studied business management behind bars and had a relationship with girlfriend Lena, a beautician. His mother, Vicki, has visited him each year, travelling from Brisbane and staying for two weeks to see her son.
At Denpasar’s international airport with 3.3kg of heroin taped to his chest and under his clothing. From Towradgi, south of Sydney, Stephens was employed as a bartender at Eurest, a catering company. Also working at the company was Renae Lawrence and Matthew Norman. Their supervisor was Andrew Chan, who revealed to the three a way to earn money. What Chan didn’t reveal was that he was also involved in two other concurrent heroin smuggling operations, on out of Brisbane and another from Hong Kong to Sydney. Their baggage was packed with sealable plastic bags, medical tape, elastic waist bands and bike shorts supplied the day before by Myuran Sukumaran. Eleven days later, they strapped heroin to their bodies, covered with waist bands or bike shorts and large flowered tourist shirts over the top and made their last free but fateful trip to the airport. Just months after his arrest, Stephens met Indonesian woman Christine Winarni Puspayanti, who was visiting Kerobokan jail as part of a church group. However in 2014, Stephens and Bali Nine cohort, Tan Duc Thanh Nguyen, were accused of violating prison rules and transferred to a prison 400km away in Malang, East Java.
Just before the 2015 executions of Andrew Chan and Myuran Sukumaran, Stephens wrote to The Australian saying “just take me out the back and shoot me”. He said if there was no hope of release or redemption, it was more humane to execute him. “What frightens me now is that the new policy of Jokowi has destroyed hope,” Stephens said. “He says there is no hope for drug-traffickers … can you imagine what it’s like to be given no hope? “Isn’t 20 years a bad-enough penalty? But life means no hope. It means I will die in prison. Can you imagine having to live like that? Since then, Stephens’ cellmate Nguyen became ill with cancer and was transferred to a hospital in Jakarta where he died in May this year. In a room together with Tan Duc Thanh Nguyen and Si Yi Chen at the cheap Melasti Hotel in Kuta, Matthew Norman was arrested after police uncovered 334g of heroin in a suitcase. 15,000 for a drug trafficking job. He had left school aged 16 because he wanted to work and make money rather than finish his HSC.
He later told ABC News that he had been “reckless, callous, wanted to cut corners in life”. Just a naive teenager when he was first locked up in Kerobokan jail, Norman learnt his incarceration had a serious effect on his family back home. One of his sisters became anorexic, another was harassed and his parents received hate mail. One of just two of the original Bali Nine to still remain in Kerobokan, Norman designs T-shirts, bags and posters and keeps on applying for a sentence reduction. But he told News Corp that every day was “just a struggle to keep doing good things” amid the “chaos” of prison. He has seen one fellow inmate hang himself, and others go “mental … crazy” and “I can’t fall into that”. “We are not getting any younger. It would be good to go home soon and start our lives again … start fresh,” Norman said.
In the same cheap hotel room with Matthew Norman and the late Tan Duc Thanh Nguyen with just under a third of a kilogram of heroin in a suitcase. Chen had just turned 20 when he was approached in Brisbane to take part in the Bali heroin drug plot. He had moved from China to Australia at the age of 12 and was a shy boy fearful of being mocked for his Chinese accent. His family was typical traditional Chinese, hard working, strict, and insistent he stay home and study hard. By his late teens however, Chen was “stubborn” with a “huge ego” and rebelling against his father, he decided not to go to university and drop out. He argued with his parents and moved out of home and in with friends, the ABC reported. But he needed money and believed he would “always get away” with it because he was young.