Ramlal, Motilal and Chhotelal v. Rewa Coalfields Ltd.

Judgment

Mag, 4 [1962] RAMLAL, MOTILAL AND CHHOTELAL REWA COALFIELDS LTD. (P. B. GA,JENDRAGADKAR AND K. N. WANCHOO, JJ.) ' Limitation-Oondoniition of delay in filing appeal-Period for which delay to be explained-Indian Limitation Act, 1908 (Act IX of 1908) s. 5. In an application under s.5 of the Indian Limitation Act for condonation of one day's delay in filing an appeal, the question arose whether the appellant had to explain his conduct during the whole period prescribed for filing the appeal or he has to explain the delay between the last day for filing the appeal and the date on which the appeal was actually filed. Section 5 of the Limitation Act lays down that an appeal may be admitted after the period of limitation if the appellant shows sufficient cause for not preferring the appeal "within such period". H•ld, that it would lie irrelevant to invoke general considerations such as diligence of the appellant in construing the words of s.5.

1~he expression "'within such period" docs not mean during such period and the failure of the appellant to account for his non-diligence during the whole period of limitation docs not disqualify him from praying for condonation of delay. In showing sufficient cause for condoning the delay the appellant has to explain the whole of the delay covered by the period between the last day of limitation and the date on which the appeal was actually filed, Krishnav. Ohattappan, (1890) I.L.R. 13 Mad. 267, referred to. KaraUcharan Sarma v. Apurbakrishna Bajpeyi, ( 1931) I.L.R. 53 Cal. 549, approved. Kedarnath v. Zumberlal A.LR. 1916 Nag. 39 and Jahar Mal v, G. M. Pritchard A.I.R. 1919 Pat. 503, disapproved. Ram Narain Joshi v. Parmeshwar Narain Mehta {1902) L. R. 30 I.A. 20, not applicable. Indat Singh v: Kanshi Ram (1917) L. R. 44 I. A. 218, referred to. CIVIL .APPELLATE JURISDICTION : Civil Appeal No. 276of1958.

Appeal from the judgment and decree dated August 6, 19!if\, oi the Judicial Commissioner's court, at Rewa, V. P. in First Civil Appeal No. 16 of 1955. 1 S. N. Andfoy, llameshwar Nath and P.L. Vofwa, for the appellants. D. N. i'l6lhak, N. llfaltalinyier and B. C. JJ.isra, for the respondent.. 1961. May 4. The Judgment of the Court was delivered by Ramlal, Mali/al and CliJwtelal Rewa Coalfield Ltd. GA-JBNl>llAGAIJKAH, J.-The short question Gajertdragait/ear which falls to be cmrnidf'recl in this appeal relates tu the construct.ion of s. u of the Indian Limitation Act JX of 1908. It arises in this way. Tile respondent ltewa Coalfields Limited is a registered company whose coal-mines arc situated at Burhar and Umarm. Its registered uilicc is at Calcutta. The appolhtut is a firm, Chaurasia Lim0stonc Company, 8atua, Vindhya Pmdesh, by name and tho three Lrothors Hamfal, Mutilal am!

Chlwtelal are its partnern. '.L'lw appclhmt prepares and deals in limestone ;it Mttihar aud Satua and fur the use in thefr limc-kil11s it purohased coal from the respun- <Lent's coal-miucs at Umaria by means of iiermits issued tu it by Coal Commissioner Calcutta. Aceording to respondent's case the appellant purchased from it 3,307 tuns of coal at the rate of Rs. 14-!J-O per ton between January 1952, and March 1953. The price for this coal was Rs. 48, 158-4-0. Since the appellant did nut pay the priuc due from it the respumleut filed the present suit in tho Court of the District J"udge, Umaria, and claimed a decree for lts. 52,51'!-14-0 including inkrest aeerned due on the amount until the date of the suit. A sulistantial part of the respondent's claim was disputed liy the appella,nt.

It was urged by the appellant in its written statement that the amount claimed by the respondent had been arbitrarily calculated and that for a substantial part of the coal purchased by the appellant from the respondent due price had been paid. The appellant pleaded that for some time past it had stopped purchasing coal from the respondent and it was ){tzmlal, Molifol and Chhutdul Rewu .Uualjield Ltd. Gaje,.dragadkur [1962] olitaining its ;;upplies from J\tkssrs Sood Broth!'rs, C:tl\tutta, to whom pa~·ments for the coal supply lu1rl h<><m duly made. Tho 11ppellant admitted its !iability to pay Rs.7,496-ll-O aml it expressed its readiness and willingness to pay the said amount. Ou tlwso plmdings the learm·d trial judge framed SC\•eu issues.

It appears that 011 the date when the respondent led its evidence and the appellant's turn to lead its evidence arrived an application for adjournment was made on its behalf to produce additional evidence which was granted on condition that the appellant should pay to the respondent Rs. 20-0/- as costs. On the subsequent date of hearing, however, the appellant did not appear nor did it pay costs to the respondent as ordered. That is why the trial Court proceeded ex-parte against the appellant. On the issues framed trial Court made findings in favour of the respondent in the light of the evidence adduced by the respondent and an ex-parte decree was passed against the appellant to the tune of Rs. 52,535-7-0 with proportionate costs. The appellant was also ordered to pay interest at 6% pl•r annum from October 6, 1953, which was the date of the suit until the date of payment. This decree was passed on November 9, 1954.

Against this decree the appellant preferred an appeal in the Court of the Judicial Commissioner, Vindhya Pradesh, Rewa, on J!'ebruary 17, 1955 (Appeal No. 16 of 1955). The main contention raised by the appellant in this appea.J was that the ex-parte decree should be set aside and the case remanded to the trial Court with the direction that the appellant should be allowed to lead its evidence and tlie case disposed of in accordance with law in the light of the said evidence. On February 19, 1955, the appellant filed an application under 8. 5 of the Limitation Act and prayed that one day's 2 S:C.R .. SUPREME COURT.REPoRTS delay committed by it in. fllirig the ~ppeal shouid b~ . 1961 Ramlal, }IJQtilal and <J/lhotdal Reu•a Coalfield Ltd. . condoned because·Ranilal,·orie.ofthe partners,ofthe appellant's firm, ~ho was in charge of the litigation, fell ill on February 16, 1955, which was the last date. for filing the appeal.

This application-was imppqrted b;fan affidavit and a medical certificate sho1,·- ing that Ramlal was ill on February · 16; 1955. The learned Judicial Commissioner, who heard this. Ga}endrauarll:ar application, appears to _have accepted the appcl- · J. · !ant's case that Ramlal was ill on February' 16 and that if only ·one day's delay Imd ·to be explained satisfactorily by the appellant his illness would constitute sufficient explanation; but it . was urged before him by the respondent that tho appellant had not shown .. that its . partners were diligent during the major portion of the period of . limitation allowed for appeal, and .since they put off the filing of the appeal till the last date of the period of limitation the illness ofRamlal cannot be. said to .be sufficient . cause for. condcming, tl;te •delay though it was only one day's delay. .

On. the other hand, the appellant urged that:it bad a right to file the appeal on the ~st day and so the delay.of one· day which it was required to explain by sufficient reason had been satisfactorily explained; . The learned.Judicial· Commissioner, .. however, ·accepted .the pica raised by the respondent and in· substance refused to excuse . delay on the . ground tlmt tlie appellant's partner had· showed lack .of· diligence and negligence during the .whole of the : period of limitation allowed for the ·appeal. It is· on this ground. that. the application ·for condonation of delay was rejected and the appeal , was dismissed onAugust6, 1955. ·The appellant then applied ·to thri 'Jiidicial Commissioner for a.certificate· and ,urged that ·on the question ·ar· construction of s; 5 of the Limitation Act there was a conflict of judicial opinion and.so the point decided •by the ·Judicial 'Commis: sion~r was one·ofgeneral imp·orfance. · .. ' This .argu- ~ent was accepted -by the Judicial'

Commisgibner 19111 Ramlal, Motilal and Chhotelal Rewa Coalfield Ltd. Gajtndragadkar [1962] and so a certificate of fitness has been issued by him under Art. 133 of the Constitution. It is with this certificate that the appellant has come to this Court, and the only point which has been urged on its behalf is that the Judicial Commissioner was in error in holding that in determining the question as to whether sufficient cause had been shown within the meaning of s. 5 of the Limitation Act it was necessary for the appellant to explain his conduct during the whole of the period prescribed for the appeal. Section 5 of the Limitation Act provides for extension of period in certain cases. It lays down, inter alia, that any appeal may be admitted after the period of limit.ation prescribed therefor when the appellant satisfies the Court that he had sufficient cause for not preferring the appeal within such period. This section raises two questions for consideration.

First is, what is sufficient cause; and the second, what is the meaning of the clause "within such period"? With the first question we are not concerned in the present appeal. It is the second question which h\1s been decided by the Judicial Commissioner against the appellant. He has held that "within such period" in substance means during the period prescribed for making the appeal. In other words, according to him, when an appellant prefers an appeal beyond the period of limitation prescribed he must show that he acted diligently and that there was some reason which prevented him from preferring the appeal during the period of limitation prescribed. If the Judicial Commissioner had held that "within such period" means "the period of the delay between the last day for filing the appeal and the date on which the appeal was actually filed" he would un· doubtedly have come to the conclusion that the illness of Ramlal on February 16 was a sufficient cause.

That clearly appears to be the effect of his judgment, That is why it is unnecessary for us to 2 S.C.R. SU"PREME COURT REPORTS consider what is "a sufficient cause" in the p1·esent appeal. Tt has been urged before us by Mr. Andley, for the appellant, that the construction placed by the Judicial Commissioner on tho wonlR "within such period" is erroneous In construing s. 5·it is relevant to bear in mind two important considerntions. The first consideration is that the expiration of the period of limitation prescribed for ma.king 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 pres- 1 cribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond ch,allenge, and this legal right which has accrued to the decree-h9lder 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'discretjori 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 observ~d by the Madras High Court in Krishna v. Ghattapz;a11 11 ) "s. 5 gives the Court a discretion which in respPnt of jurisdiction is to be tixercised in the way il· which judicial power andrdiscretion ought to be exercised upon principles which are well understood; the words 'sufficiep.t cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputaole to the appellant." Now, what do the words "within such period" denote ? It is possible that the expres~ion "within such period" may sometimes mean during such period. But the question is:

Does the context in. which the expression ocaurs in s. 5. juatify ·the said interpretation ? If the limitation jA.ct or any other (I) '(1890) J,L.R. IS Mad. 2~9, Rarnlal, }rfolilal and OldwteYal R e.wa 0 oci lfi<l<l J.td. GajendrlllJndk<w 19111 ·,,. ·appropriate statute prescribes · different p~riods of· ·Ramlal, MaJilal: limitation either for appeals or·· applic'.Ltions to· .. · and Chhotelal . which s. 5 applies th;it normally means that liberty R 0· l" Id is given to·the par.ty intending to make the appeal · ewaLtd~ ••• •cOr to file an application to act within the period prescribed in that behalf. It would not be rcasona- .

Gajendra!Jadl:ar ]Jlc to require a party to take the necessary action · J •• ·• · on the very first·day after the cause of action acc- . rues. ·In view of the. period of limitation prescribed the party would be entitled to take its time and . to . file the appeal on any day during the said period and so prima facie it appears unreasonable that· when delay . has b~en made _by the party in filing . the. appeal it should·· be called iipon·to explain its conduct during the whole of the period of limitation prescribed. · In our. opinion, it would be immaterial ·and even irrelevant. to· invoke general considera- · tions of diligence of parties in construing the words of s. 5. · The context seems to suggest that -"within · . such period" means - 'vithiii the period _which ends . with the last clay of limitation· prescribed. · In other . words, in all cases fallin~under s. 5 what the party _ has to show is why lie did not file an appeal on the ·last day of limitation prescribed.

That may·inevita- . bly mean that the -party will have to show suffi. cient cause not only for not filing.the appea~ on the last day but to explain the delay made thereafter ·day by day. In other words, in shoWing · siifficient 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"cilly on .which the appeal is filed.

To hold that the expression "with- · in such period" means during such .period would in our opinion, be repugnant in, tjie context. .'Yo would accordingly hold that the learned Judicial · Co=issioncr was in ·error taking the view that the . failure of theappellant to account for its non~ · ... ·diligimce during the whole of the period of limitation - prescribed for the appeal noc~ssarily :disqualified it · 2 S.C.R. · SUPREl\IE COURT REPORTS . · 769 fro~ pra)'.ing for the · condoriation of: delay, even · ··1961 though the delay in question was only for one day; Ramlal, Motilal and that too was caused by the party's illness. and Ghhotelal · .. This question has been considered by some of·. R- , J·~1 · ld the IDgh ~ourts and t!1~ir decisions shOIV a conflic.t '·•u.r.,;.aijje ' ·on the pomt. In Kamlicl!aran fhrma v. Apurbakrisl!na Bajpeyi (")itappeared -that the papers for Gaje,;a~agadlcar appeal were handed over by the appellant to his J: · · . advo~ate in the morning of the last day . for filing the appeal:

Through pressure of urgent work the · advocate did not look into the papers till the evening of that .day when he found that that was the __ last day. The appeal was filed the . next day~. · According to the majority decision. of the Calcutta High Court, in the -. circumstances. just indicated · · there was sufficier.t cause to-grant the appellant an ex.tension of a day under s. · 5 of the Limitatfon ·Act. because it was held that it was enottgh if the appellant satified the Court that for sufficient cause he was prevented from filing the appeal on the last: day and his action during the whole of . the period• need' riot be explaired. This decision is in favour of the appellant· and. is in accord with';thc'. ... view which we are inclined to take. .. On the other hand, in Kedarnatl! v. Zumberlal(l) the .Judicial Commissioner at· Nagpur·has:expressed the view that an appellant who wilfully leaves·· the preparation and presentation of· his appeal to the last day of the period of. limitation prescribed . therefor iS 'guilty of· negligence and is not entitled. to an extension of time if some unexpected or un" foreseen contingency prevents him from filing the appeal within· lime.

According · to this · decision; ·though the period covered between the' last day· of _ · filing and·· the ··· day of actual filing may· be satisfactorily explained that Ivould not be. · enough to condone. delay because the· appellant would neverthelesshave to show· why he waited · (2) (1931) I-R.L S8 Cal 519. A.~.R. 1916 Nai, 39 Remlal, Motiial and O~hotelal Rewa Coalfield Liil. Gajendragadkar (1962] until the last day. In coming to this conclusion the Judical Commissioner has relied substantially on what he regarded as gefleral considerations.

"This habit of leaving things to the last moment", says the learned judge, "has its origin in laxity and negligence, and in my opinion, having regard to the increasing pressure of business in the law Courts and the many facilities now available for the punctual filing of suits, appeals and applications therein, it is high time that litigants and their legal advisers were made to realise the dangers of the procrastination which defers the presentn,tion of a suit, appeal or application to the last day, of the limitation prescribed therefor''. There can be no difference of opinion on the point that litigants should act with due diligence and care; but we are disposed to think that such general consideration can have very little relevance in construing the provisions of s. 5. The decision of · the Judicial Commissioner shows that he based his conclusion more on this a priori consideration and did not address himself as he should have to the construction of the section itself.

Apparently this view has been consistently followed in Nagpur. In Jahar Mal.v. G. M. Pritchard (4) the Patna High Court has adopted the same line. Dawson- Miller, C.J., brushed aside the claim of the appellant for condonation of delay on the ground that "one is not entitled to put things off to the last moment and hope that nothing will occur which will prevent them from being in time. There is always the chapter of accidents to be considered, and it seems to me that one ought to consider that some accident or other ·may happen which will delay t~em in carrying out that part of thier duties for whwh the Court prescribes a time limit ar.d if they' choose to rely upon everything going absolutely smoothly and wait till the last moment. I think they have only themselves to blame if they should find that sowe· (4) J\.I.~. 1919 Pat. 503.

2S.C.R. thing has happened which was unexpected, but which ought to be tcckoned with, and are not entitled in such circumstances to the indulgence of the court." These observations arc subject to the ~me comment that we have made about the Nagpur decision(3). It is, however, necessary to emphasi&e tha.t even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a <oondition precedent for the exercise of the discretionary jurisdiction vested in the Court by s. 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay.

This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the · disc~etionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it. In this connection we may point out that considerations of bona jides or due diligence are always material and relevant when the Court is dealing with applications made under s. 14 of the Limitation Act. In dealing with such applications the Court is called upon to consider the effect of the combined provisions of ss. 5 and 14. Therefore, in our opinion, considerations which have been expressly made material and rnlevant by the provisions of s.

14 cannot to the same extent and in the same manner be invoked in dealing with applications which fall to be decided only nuder s. 5 without reference to s. 14. In the present case (3) A.I.R. 1916 Nag. 39. Ramlal, Motilal and Chholelal R.wa Coalfield Ltd. Gajeuragadkar Ramm I, Moli /al and a hhotela l Rewa .Goa !field Lld .. Gajendragad kar, 7-12 SUPREME COUH,T REPORTS [11162] thero is n9 diffic:u 1 ty in holding that the. discretion should be exercised in favour of thl' appellant -1,>ecausc apart from tllo general criticism made against tho appellant's lack of diligence during the p!;'riod of limitation no other fact had been adduced against it. Indeed, as we have already pointed out, the. learned Judicial Commissioner rojected the ap-· pellant's application for condonatiou of delay only on the ground that it was appellant's duty to file the appeal as soon as p6$siblo within the period prescribed, and, that in our opinion, i~ not a valid ground.

It now rern'ains to refer to two Privy Council decisions to which our attention was drawn. In Ram Narain Joshi v. PahneshwarNamin 1lfehta(5), tho Privy Cqunci) ·was dealing with a.case' where on .A,ugust 9, 1895 the High Court had made an order that the appeal. in guestion should. be transferred to the High Court under ·s. 25 of the Code of Civil Procedure and hea:rd Along with another appeal already pending there. In making t.his order the High Court had'give+1 liberty to tho 'respondent to make his objections, if any, to t·he said transfer. On September 16, Hl95 a petition· was filed on .behalf of the ~ppellant objecting to the said transfer; and the 1 question· arose whether sufficient. cause had been shown for _the delay piade by the party between August 9", 1895 to September 16, 1895. Th~ decree under appeal had been passed on-June 25, 1894 antl the appeal against the said decree had been presented }o the District Judge on September 3, 1894.

It wo\lld thu~ be seen that the question which aro13e was very different from the question with which WQ are concerned; and it is in regard to the delay made between August 9, 1895 to l::lopl(t;mb~n: Hi, 1895 that. tho Privy Council approved of t.he y~~w take1l 'by lhe liig~, Court t}iat the said de/a1 lia.u not bt:en satisfactorily explained. We do not see how this deci~i9n can assist us-in interpreting the provisions of s. 5. (5) (,1902) L.R. 30 I.A. 20. 2- S.d.'B .. 77:3 The next case on which reliance has been pla- C<'u by the respondent is Br-ij I ndM S.ingh v. !{ans hi Hwn(G). The Principal point deoidcd in that case had roforonce to s. !4 read with s. 5 of the. Limitation j.l't., l!JU8; and the question which it raised was whether the time occupied by an application in good faith for review, although made upon a mistaken view of the law, should be deemed as 'added to the period allowed for presenting an appeal.

As we have already pointed out, whel} the ql:iestion of limitation has to be considered in the 'light of the <o.ombincd operation of ss. 14 ·and 5 of the Limitation Act the conditions expressly imposed bys: 14 have. to be satisfied. It \vould, however, be unreasonable to suggest ·that the said conditions must to 'the same extent and in the same maimer be taken into account in ·dealing with applications falling under s. 5 of the Limitation Act. It appears that the provi~ions of s. 5-in the present Limitation Aet are substanti1tlly tho same as those ills. 5 (b) anil s. 5, paragraph 2, of the Limitation Acts of 1871 and 1877 respectively. Section 5A which was added to the Limitation 'Act of 1877 by the ame1idhig Act VI ·of 1892 dea1t with the topic covered by tho oxplanation to s. 5 ~ the present Act.

Tho bxplanaifon provides, t?)-tef alia, that tho fact that t.Jie appdlm1t was mislod'hy any order, practico or judgment of tho High CuiJrt hi ascertahling or computing tho preseribntl poriocl of limitation may Lo sufficient cause within tho meaning of s. 5. Tho effect of tho cxpfanatiou is that if the party who has applied for extension of period shows that the delay was duo to any of tho facts mentioned in the explanation that would Lo trcatt;d aR snffiuicnt eau8t', and after it is treated as Muffieient uaJ.l•;o t.lw question may then ariso whether discretion should be exercised in favour of the party o~ not. In the cases to which the explanation applies it may be easy for the Com·t to deuidu that the dis- (6) (1917) L.R. 44 I.A. 218. 196/. Ramlal, Motilal and Chhotela• Rewa CoaljieU Ltd. Ramlal, Moti/,al and .Ohlwtelal R~wa Coalfield Ltd. Gajendr~.adkar [1962) cretion 11hould be exercised in favour of the party and delay should be condoned.

Even so, the matter is still one of discretion. Under s. 5A of the Act of 1877, however, if the corresponding facts had been proved under the said section there appears to have been no discretion left in the Court because the said section provided, inter alia, that whenever it was shown to the satisfaction of the Court that an appeal was presented after an expiration of the period of the limitation prescribed owing to the appellant having been misled by any order, practice or judgment of the High Court of the Presidency, Province or District, such appeal or application, if otherwise in accordance with law, shall, for all purposes be deemed to have been presented within the period of . limitation prescribed therefor. That, however, is a distinction which is not relevant in the present appeal.

In the result the appeal is allowed, the delay of one day made in filing the appeal is condoned, and the case eent back to the Court of the Judicial Commissioner for disposal on the merits in accordance with law. In the circumstances of this case the appellant should pay the respondent the costs of this Court. Costs incurred by the parties in the Court of the Judicial Commissioner so far will be costs in the appeal before him. Appeal allowed.