See. 379, it was observed that due Diligence by applicant-appellant Appellant along with respondent-driver was held liable jointly and severally Held, mere technicalities should not stand in the way of dispensation of substantial justice, applicant-appellant is unable to show that due diligence was exercised by him It is clear that a casual approach was adopted and the present is clearly not a case which calls for a liberal delineation Applications seeking Condonation of delay in filing of this appeal and exemption from complying with condition as provided under proviso to Section 173 (1) of the Motor Vehicles Act, 1988, are dismissed Main appeal also stands dismissed. Observing the same, it was held that cause shown by the appellant for condoning the delay in filing the appeal before the High Court was/is a sufficient cause within the meaning of Section 5 of the Limitation Act and, therefore, the application filed by the appellant for Condonation of delay of 554 days in filing the appeal deserves to be condoned Appeals succeed and are accordingly allowed Impugned order is set aside. No. California Los Angeles Superior Court of California - SmartRules filed therein earlier and interim orders passed therein automatically get restored even in the absence of a specific order in that regard, unless the Court passed an express order declining such restoration. Executing Court is not competent to entertain objection of judgment-debtor in execution as to jurisdiction of Court which passed the decree and to hold the decree as a nullity. See. None of these deadlines were complied with. See. In Punjab Fibres Ltd., Noida, (2008) 3 SCC 73, a question arose of condonation of delay in filing reference application to the High Court. In Para 10 it was held that it is not essential for the special law to, in terms, exclude the provisions of the Limitation Act. Oriental Aroma Chemical Industries Ltd. Vs Gujarat Industrial Development Corporation and another 2010 (2) SCJ 973 ( D.B. Similarly, it is also trite law that when a statute prescribes something to be done in a particular manner, it should be done in that particular manner alone or not be done at all. In a case where suit is dismissed for default on account of plaintiffs absence to appear on the day to which it was posted, when sufficient cause is shown for his absence on that day and when restoration application was filed within time without any delay, his absence on the earlier dates of hearing, if any, should not be taken into account for consideration of such application. PDF Reportable in The Supreme Court of India Civil Appellate Jurisdiction It is trite law that the right to appeal is not a natural or inherent right and it is only a right provided by the statue and therefore it will be governed by the specific provisions provided in the statute limiting the same. Zahoor Bee and others v. Unkonda Venkataiah (died) per L.Rs. Dismissal of suit for default :- Application made under Order 9 Rule 9, CPC for restoration of suit dismissed for default on the ground of plaintiff appearing but not proceeding with suit is maintainable as his mere presence cannot be considered as appearance under Explanation added to Rule 2 of Order 17 CPC by A.P. ), section 5 of the Act can be applied in Rent Control cases. When delay in filing criminal appeal should not be condoned? v. M. Anjinappa (Died) and others.- 2010 (3) ALT 817. PDF FAQ - APPEAL EXAMINERS SECTION - Madras High Court Limitation to set aside exparte decree Art. 1711/2010 filed by the appellant under section 151 of CPC for condonation of delay of 166 days in re-filing the Objections under section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act'). It was held that the provision of a period of limitation in a howsoever peremptory or imperative language is not sufficient to displace the applicability of Section 5. ). (TA) Tenancy and Agricultural Lands Act, 1950. and another Vs Allu Swaminaidu and others 2000 (1) ALT 444, it was observed that where public interest is involved, delay can be condoned and heavy costs can be imposed for negligence by the State. Suryachakra Power Corporation Limited (2016 16 SCC 152)the Supreme Court held that section 5 of the limitation act cannot be invoked by this court for entertaining an appeal filed against the decision or order of the tribunal beyond the period of 120 days specified in section 125 of the electricity act and its proviso. and others 2014 (2) ALT 97. To apply review as was observed in Arjun Singh Vs. Mohindra Singh (1964) 5 SCR 946. the Petitioner seeking leave to appeal against the judgment dated. Moizuddin Siddiqui and another vs. Mohd. Suit is dismissed for default:- Order 9 Rule 9. In Union of India v. Popular Construction (2001)8 SCC 470 it was held that Section 5 of the Limitation Act is not applicable to Section 34(3) of the Arbitration and Conciliation Act, 1996 in view of an express inclusion within the meaning of section 29(2) of the Limitation Act,1963. Two doctrines collide head on to solve this question Doctrine of necessary implication and Doctrine of express exclusion. In a case where suit is dismissed for default on account of plaintiffs absence to appear on the day to which it was posted, when sufficient cause is shown for his absence on that day and when restoration application was filed within time without any delay, his absence on the earlier dates of hearing, if any, should not be taken into account for consideration of such application. It was held that there can be implied exclusion of the provisions of section 29(2) of the Limitation Act. He has, thus, failed to give any cogent reason for the delay and is unable to satisfy the requirement of due diligence on his part , though he is right in his submission that the Delhi HC erroneously relied upon the ratio of the SC's judgment in the case- Oku Tech Pvt Ltd v. Sangeet Agarwal & Others- 2016 SCC OnLine Del 6601. No.885/1999, operates as res judicata. In Engineer Builder (2014 16 SCC 742) the principle laid down in Popular Construction was extended to Jammu and Kashmir. 4. to condone a 28 day delay in filing the review petition before the DRT, the period of limitation under Rule 5A of the Debt Recovery Tribunal (Procedure) Rules, 1993 (hereinafter referred to as "the Rules") being 30 days. However, he or she does not admit to being factually guilty when entering the plea. Even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent the nature of those provisions or the nature of the subject matter and the scheme of the special law exclude their operation. Others, Format of Condonation of Delay - Legal Forms - Legal Documents Limitation Act, 1963, Sections 122 and 137:-. 4.1) Order 22 Rule 11 CPC provides that in the application of Order 22 to . It is also clear that Article 122 has been confined only to an application for review but not miscellaneous application. rep. by its Secretary, Department of Labour and Employment, Viajawada and others 2019 (3) ALT 380. It was held in P.M.M Pillayathiri Amma Vs. Lakshmi Amma and others AIR 1967 Kerala 135 (V 54 C 55), the provisions of Order 22 Rule 9 are mandatory and the suit abates if the plaintiff or defendant is not alive at the time of passing of decree. See also. Separate condonation application is not necessary, 2) it is sufficient to mention about delay , sufficient cause for condoning delay, You have to make out a case for condoning delay. See: Ummer Vs Pottengal Subida and others 2018 (3) ALT (SC) 11 ( D.B. S. Davender Reddy Vs S. Ravinder Reddy, 2016 (4) ALT 53. (Para 17). The application under Order 9, Rule 13 C.P.C. K. Somasekhar Reddy and others Vs State Anti Corruption Bureau, rep. by its Inspector of Police, 2015 (3) ALT(CRI.) The Best law website for legal fraternity. PDF J U D G M E N T V. Ramasubramanian, J. - SUPREME COURT OF INDIA Table of Contents Introduction Condonation of delay under the Limitation Act, 1963 The Limitation Act, 1963 See. Each Act establishes a deadline for filing any complaint, appeal, or application to the . 2. of delay in filing the present petition which is barred by limitation of 387. days. STAMP DUTY AND PENALTY: CERTAIN LEGAL PRINCIPLES. (Para 10). The application must be filed along with the condonation of delay application. The term 'condonation of delay' is characterized under Section 5 of the Limitation Act in the event of offers. The court may on sufficient cause being shown, condone the delay. For restoration separate application delay application is not required under order 9 rule 9 file an application along affidavit to restore the suit to original number citing the reason why you were not present. See also. The limitation commences from that date. See. 5 of limitation not necessary :- If the affidavit filed in support of an application filed for restoration of a suit dismissed for default or on a representation made by Counsel of the party that the parties compromised the suit out of Court, makes out sufficient cause for condonation of delay and the reasons given are convincing, they can be taken into account without the necessity to file a separate application for condonation of delay under Section 5 of the Limitation Act, as the language of the said Section does not expressly or by necessary implication mandate the filing of a written application to obtain a relief under the said Section. Med Manor Organics Pvt. Firstly, let me tell you that there is a slight different in between the High Court and civil court with respect to the filing of condonation of delay application. 1 Court: State Consumer Disputes Redressal Commission Date: Oct 6, 2017 Cited By: 0 .. 2 ORDER HON'BLE JUSTICE SHRI. Agolapu Raju Vs Agolapu Gangaram 2016 (3) ALT 429. The act of the respective courts condoning the delay in filing an appeal or application is known as condonation of delay. ), held that to make out a case for condonation of delay, the applicant has to make out a sufficient cause/reason which prevented him in initiating the proceedings within the period of limitation The applications for condonation of delay stand dismissed. These appeals are directed against the order passed by a Division Bench of the High Court of Judicature of Andhra Pradesh at Hyderabad in CMP Nos. Delay Condon application and restoration application procedure Order 22 Rule 3 states that where within the time limited by law no application is made under sub rule (1), the suit shall abate as against the deceased defendant. ). Once the period of 90 days expires, the appeal becomes time-barred and the delay cannot be condoned by invoking the provisions of the Limitation Act, 1963. As there is apparent conflict in views taken by 3 judge benches of the Supreme Court in balancing the collision between doctrine of necessary implication and express exclusion, the issue deserves to be addressed by a 5 judge bench for an authoritative pronouncement. articlesonlaw.in is the best law website for legal fraternity. Application filed under Order 9 Rule 9, CPC for restoration of a miscellaneous application does not fall within the scope of Article 122 which prescribes period of limitation of 30 days from date of dismissal. google.com, pub-7478144801409215, DIRECT, f08c47fec0942fa0, By Y. SRINIVASA RAO, M.A (English Lit. For condonation of delay, sufficient cause be shown Court must not be pedantic in deciding delay condonation petition It should not be dismissed on the mere ground of long delay if the explanation offered is bona fide In the present case. and others etc. Lawyers are available now to answer your questions. M. Rajamannar Vs. B. Fakruddin 2014 (6) ALT 802. The Honble Full Bench of the Apex Court in Baljeet Singh (Dead) through Lrs. It was also held that it is well settled that exclusion of power of condonation of delay can be implied as laid down in Popular Constructions, Hongo India, Gopal Sardar etc. In ONGC v. Gujarat Energy Transmission Corporation Limited, (2017 (5) SCC 42) the Supreme Court while dealing with Section 125 of the Electricity Act again held that delay beyond maximum statutory period of 60 days plus 60 days is non-condonable. Vs. Meer Fazeelath Hussaini (died) per L.Rs. Secretary, Department of Horticulture, Chandigarh and another Vs. Raghu Raj 2009 (1) SCJ 21 ( D.B. ); State of Andhra Pradesh, rep. by its Principal Secretary, Collegiate Education, Guntur District, and others Vs Darsi Phebe Sarah and another 2017 (6) ALT 689 ( D.B. It was further held that any interpretation of section 125 of the electricity act which may attract the applicability of section 5 of the limitation act read with section 29(2) thereof will defeat the object of the legislation, namely, to provide special limitation for filing an appeal against the decision or order of the tribunal and proviso to section 125 will become nugatory. Mohd. A three judge bench of the Supreme Court in International Asset Reconstruction (2017 16 SCC 137) while dealing with power of DRT to condone delay held that the pre-requisite for attracting Section 5 is the pendency of a proceeding before a court. Send a legal notice, review a legal document, etc. PDF In the Supreme Court of India Civil Appellate Jurisdiction Civil - Wbja Considering the facts of the case in hand, the SC has pointed out that this civil suit had been filed by the respondent for decree of specific performance of an agreement to sell one floor of ancestral property located in Devli village, Delhi and permanent injunction against alienation of the same by petitioner to third parties. G. Shareefunnisa Begum Vs. Kurnool Municipal Corporation, rep. by its Municipal Commissioner and others 2015 (1) ALT 758. HC Application Delay Condone| Deeds & Drafts - Lawsisto Azgarali vs. Sk. Imposition of a condition to file an affidavit in lieu of chief-examination of plaintiff for allowing an application filed for condonation of delay in filing the application to restore the suit dismissed for default is improper. The Appellate Authority dismissed the appeal on the ground that it had no power to condone the delay. "No Contest" Pleas in California Criminal Law Cases - Shouse Law Group A.P. As was observed in T. Bhanumathi Petitioner (Defendant).vs. State Amendment. 21114, 21115, 21116, 21117 and 21118 of 2003 dated 19 th August, 2003. Limitation for Filing Written Statement under CPC - Legal Bites The Supreme Court held that the Appellate Authority acts as a Court and not a persona designatum, it can condone the delay under Section 5 of Limitation Act as the two requirements for the . Sk. Opposition to Motion for Continuance or Extension Order XLI Rule 17 r/w Order XLII Rule 1:-. If appellants counsel does not address arguments, appeal be dismissed for appellants default Dismissal of appeal on merits after hearing the arguments of respondents counsel is not legal. . (Para 7). All rights reserved. Inordinate delay in prosecuting the suit by wanton and deliberate negligence cannot be condoned. First the petition seeking to condone the delay to file the set aside petition will be decided and then the petition seeking to set aside the dismissal order will be taken up. Subba Reddy, 2007 (3) ALT 727. Although, the un-amended Order VIII Rule 1 of CPC is directory, it cannot be interpreted to bestow a free hand to any litigant or lawyer to file written statement at their own sweet-will and/or to prolong the lis. A 3-judge bench of the Supreme Court consisting of the Chief Justice Sharad A. Bobde, Justice Bhushan Gavai and Justice Surya Kant have ruled in the judgment of the case - Desh Raj v. Balkishan (D) through proposed LR Ms. Rohini, delivered on January 20, 2020, that the courts continue to have discretion in condoning delay in filing of Written Statement beyond the prescribed period of limitation in non-commercial disputes. The delay can be caused due to many unavoidable reasons or due to mistake. 1. There are some cases where application for condonation of delay was dismissed. State Amendment. It is obvious from the record that nothing prevented the appellant from filing the written statement through counsel or in person. I hope that this paper will be helpful to the judicial officers for the speedy disposal of interlocutory applications pending in main suits. Mothukuri Ranga Rao and another v. Royyala Laxminarayana and others 2008 (4) ALT 96. It is excluded in the application to the provisions of Order XXI of the CPC, 1908 (Execution Proceedings). v. M. Anjinappa (Died) and others.- 2010 (3) ALT 817. If a case has been dismissed for default the procedure is to restore the case by filing a restoration application. Proviso to Section 34(3) provides three months period for making an application. Union Bank of India, Ongole. Majji Somulu @ Swamynaidu Vs Majji Nagaraju @ Nagesh & Ors, 2015 (6) ALT 301. & Others 1979 (2) ALT 394. Dismiss. The length of the delay is not the criteria but the correctness of the reasons or the explanation for the delay is the important factor As per the settled law on this subject, sufficient cause has to be liberally interpreted provided negligence, inaction, lack of bona fides etc., are not made out. The application for special leave was filed 2 days later. Ltd, rep. by its Managing Director, Sri A.S.Narayana 2015 (4) ALT 57. The Central Excise Act has been held to be a complete Code by itself. Court can condone delay in Appeal filing if sufficient cause exist He was served on May 1, 2017 and entered appearance through counsel on May 15, 2017.As per Order VIII, Rule 1 of CPC, the appellant ideally ought to have filed his written statement by May 31, 2017; and at the very latest by July 30, 2017. Babu Vs V. Savithri & Ors, 2015 (4) ALT 134. Bar of fresh suit: Dismissal of suit under Order 9 Rule 8, CPC bars fresh suit in respect of the same cause of action. Exparte Orders and decrees Restoration Set aside under Order 9 Rules 7, 9 and 13 of CPC:-. Distinction between the question of limitation under the Limitation Act, 1963 or the limitation prescribed by Special Enactments :- The fundamental distinction between the question of limitation under the Limitation Act, 1963 or the limitation prescribed by Special Enactments and the question of delay and laches is that the period to be reckoned in respect of the former is statutorily fixed, while the period to be reckoned in respect of the latter, depends upon the facts and circumstances of each case. Section 5 of theLimitation Act, 1963, expression sufficient cause must receive a liberal construction so as to advance substantial justice, as was held inState of Karnataka Vs Y. Moideen Kunhi (dead) by Lrs. Let us grow stronger by mutual exchange of knowledge. (Para 7). In Gopal Sardar (2004) 4 SCC 252 while dealing with Section 8 of the West Bengal Land Reforms Act, 1955 the Supreme Court in Para 13 held that when in the same statute in respect of various other provisions relating to filing of appeals and revisions, specific provisions are made so as to give benefit of Section 5, Limitation Act and such provision is not made to an application under Section 8, it obviously and necessarily follows that the legislature consciously excluded the application of Section 5 of the Limitation Act. Delhi High Court. It is now a crystallized principle in our jurisprudence that condonation of delay is a matter of discretion of the Court and Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain or even a reasonable limit. 2. Further in view of the language of the proviso to Section 125 of the Electricity Act which uses the expression "within a further period not exceeding 60 days", the Supreme Court had no hesitation to hold that the outer limit for filing an appeal is 120 days and an appeal filed after the expiry of 120 days cannot be entertained. Pursuant to Code of Civil . (Para 12). Ltd., rep. by its Managing Director (died) per L.Rs. As was pointed out in Allavarapu Veerabhadra Rao and others Vs Paasi Tata and others 2015 (4) ALT 368, silence of appellants for more than two years would create a legitimate expectation in the respondents that the litigation has come to an end Respondents cannot be subjected to prolonged litigation by condoning inordinate delay in the absence of proper explanation Application and consequently the appeal dismissed. As per decision in Om Prakash Vs Ashwani Kumar Bassi 2010 (7) SCJ 415 ( D.B. Basheerunnisa Begum (died) per L.Rs. Earlier,in Chairman and Managing Director, APSPDCL, Tirupathi, Chittoor Dist. ). Revision against order of dismissal passed by trial court in IA No.668/2006 for appointment of Advocate Commissioner to partition suit schedule properties on ground that dismissal of earlier application, I.A. This must be done immediately after civil suits are filed. See. The CPC has not granted exemption under sections 11 and 12 on the ground that Form No. California Rules of Civil Procedure - Motion for Continuance or Extension - United States District Court Central District CA CD Ninth Circuit - Local and Federal Court Rules Made Easy It is also a well-settled principle of law that the decision on an interpretation of one statute can be followed while interpreting another provided both the statutes are in pari materia and they deal with identical scheme. Thus, the process of abatement once started can only be short circuited by filing an application for bringing LRs of deceased defendant on record or filing an application for setting aside the abatement within 60 days of abatement. 2006 (3) ALT 431. See. Sufficient cause is distinct from good cause:- Sufficient cause is distinct from good cause, in that, the requirement of good cause is complied with on a lesser degree of proof than that of sufficient cause Sufficient cause be given liberal interpretation, but only as long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned Court has no power to extend period of limitation on equitable grounds. Use Indian rupee instead. Application dismissed for non-compliance of order of substituted service can be restored by extending time for such compliance under Section 151, CPC Period of Limitation under Limitation Act is not applicable to such cases. Learn More{{/message}}, articlesonlaw.in Civil Court is competent to suspend a declaratory decree even if it is inexecutable, in exercise of inherent powers under section 151 r/w Section 94, CPC if such decree affects the rights of third parties, as was held in Khaja Safiullah v.Mettu Baga Reddy and ors, 2007 (1) ALT 33. The court followed the decision in Singh Enterprises (2008) 3 SCC 70. 115 of CPC; But, it is subject to revisional jurisdiction of High Court as was observed by Supreme Court in AIR 1991 SC 684 Calc utta Port Trust Vs. Shalima Tar Products Ltd. One of the remedies to the plaintiff when suit is dismissed for default is to file an application for review. (Expert) 18 September 2008 condonation of delay is a spcies of law of limitation. Yachamaneni Chandra Mohan Rao and another Vs. Edmala Narsamma @ Narsavva and others 2015 (5) ALT 611. We've updated our prices to United States (US) dollar for your shopping convenience. Once an appeal is admitted and is placed for hearing i.e., hearing on merits, it can be dismissed for default but cannot be decided on merits in absence of appellant (or his advocate). Nannuri Sathi Reddy Vs. Nannuri Narsi Reddy and others 2012 (2) ALT 113. 2013-2023 Kaanoon Corporation. The period of limitation is 30 days from date of dismissal. Sections 4 to 24 of the Act deal with exclusion of certain time periods in calculating such prescribed time periods. Here, find the list of some of the major points on how a condonation of delay can be filed: Late submission of a form or application will cause a time bar on an appeal in a legal case. and others 2013 (2) ALT 332. If the affidavit filed in support of an application filed for restoration of a suit dismissed for default or on a representation made by Counsel of the party that the parties compromised the suit out of Court, makes out sufficient cause for condonation of delay and the reasons given are convincing, they can be taken into account without the necessity to file a separate application for condonation of delay under Section 5 of the Limitation Act, as the language of the said, Section does not expressly or by necessary implication mandate the filing of a written application to obtain a relief under the said Section. It was held that the provisions are pre-emptive in nature. 1. Condonation of Delay: Definition, General Principles and Procedure - NAVI All such applications therefore governed by residuary Article 137 under which period of limitation is three years from the date when the right to apply accrues L. Venkata Krishna Reddy (Died) Per L.Rs. In Anwari Basavraj Patil, 1993(1) SCC 636 it was again held that the Representation of Peoples Act is a self-contained code. Collector is not a Civil Court:- Provisions of Section 5 of the Limitation Act have not been made applicable to proceedings before the Collector under the Act. The court first hears the delay condonation application and if it find that there are sufficient reasons for condoning the delay then it condones the delay and then the restoration application is heard and decided. HIGH COURT AMENDMENT. Section 14 of the act, similarly, says that in computing the period of limitation for any suit, the time during which the plaintiff has been prosecuting in civil proceedings, whether in a court of first instance or of appeal or revision against the defendant shall be excluded where the proceedings relate to the same matter in a court which is un. That the applicant has filed a _____ in this Hon'ble Court. In 2019, in M.S. Please contact the developer of this form processor to improve this message. It is always fair and appropriate that matters be heard on merits rather than shutting the doors of justice at the threshold. The argument was raised that time frame of sixty days was mandatory which could not be relaxed, and it excluded the applicability of Section 5 of the Limitation Act. etc. In California, a no contest plea generally has the same legal effect as a guilty plea, but with . All the best. Thus, the total income was worked out at Rs.25,72,805/- and demanded a tax of Rs.7,73,720/-. Filing of a separate suit to set aside the decree is available only to a person who was not a party to the decree sought to be set aside. There is no hard and fast rule for condoning the delay and each case should be dealt with on its own merits. (Anant Mills Co. Ltd Vs State of Gujarat, (AIR 1975 SC 1234). In this case, the Writ petitions are allowed. The Court considered the fact that condonation of delay was expressly provided in other provisions of the Act (viz., Section 10(3)) but not under the provision in question (viz., Section 4(2)). It provides that if a 'Court' is satisfied that the appellant/applicant had sufficient cause for Time limitation of filing a suit/appeal/application stands prescribed under provisions of the Limitation Act, 1963. M/S Ok Play India Pvt Ltd vs M/S A P Distributors & Anr on 17 August, 2021 Illustratively, extreme hardship or delays occurring due to factors beyond control of parties despite proactive diligence, may be just and equitable instances for condonation of delay. While considering whether or not to condone delay, the guiding principle is whether a party has acted with reasonable diligence and had not been negligent and callous in the prosecution of the matter. This ought not to be permitted or encouraged. It was observed that there is no express exclusion of provisions of Sections 4 to 24 of Limitation Act by a special or local law, thus, on the strength of Section 29(2), Section 5 of Limitation Act becomes applicable. Plaintiff cannot file fresh suit in respect of the same cause of action, if the suit is disssed for default. In Nasiruddin (2003) 2 SCC 577, it was held that wherever a special Act provides for extension of time or condonation of default, the Court possesses the power, but where the statute does not provide either for extension of time or to condone the default in depositing the rent within the stipulated period, the Court does not have the power to do so. (Para 25). If suit is dismissed for default under Or.9 Rule 8, the aggrieved plaintiff has two remedies: The defendant, against whom an ex-parte decree has been passed, can avail the following remedies: The above remedies are concurrent and they can be prosecuted simultaneously or concurrently as was pointed out in Mahesh Yadav Vs. Rajeshwar Singh,(2009) 2 SCC 205.