1.

INTRODUCTION
Vigilantibus Non Dormientibus, Jura Subveniunt1 - The laws come to the aid of those who are
vigilant, not those who sleep on their rights.
The aforementioned latin maxim has laid foundation for one of the prominent constituents of the
Indian legal system- Law of Limitation. This is an arena of law that tends to regulate litigation by
imposing bar on the time period within which an individual may approach a court for grievance
redressal/appeal/revision.
The Law of Limitation traces its origin back to an act enacted by the Parliament of the United
Kingdom. The act proposed amendments in the statute of limitations to allow actions in some cases
where the injured party had not discovered the injury until after the standard date of expiration. The
Act was a consequence of the report submitted by the Davies Committee on Limitation of Actions in
Cases of Personal Injury, formulated subsequent to the decision by Appellate court in Cartledge v
Jopling2. The draft bill was presented to Parliament on 6 May 1963; it was granted the Royal Assent
on 31 July and came into effect on the same day.
This legislative comment seeks to explore a contemporaneous principle that arises with Law of
Limitation, namely- Condonation of Delay. Enshrined in Section 5, Limitation Act, 1963; a delay
in preferring an appeal may be condoned if the court is satisfied that a genuine reason existed for
such delay.

2.WHY CONDONATION OF DELAY?

‘Bar of limitation.— Subject to the provisions contained in sections 4 to 24 (inclusive), every suit
instituted, appeal preferred, and application made after the prescribed period shall be dismissed’3

The Law of Limitation has emerged as an instrument of quick and efficient case disposal. However,
the restrictive nature of the statute and its tendency to avoid bulky litigation, at times, comes across
as too technical in its application. The statute while advocating its bona fide objective, grills the
individuals that may be innocent in certain situations.
‘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 (5 of
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’4

Under such circumstances, condonation of delay is a principle that grants another opportunity to the
aggrieved provided they have a genuine reason for causing the delay in approaching the court, to
forward their claims and seek the desired relief. However, it is important for the purposes of operation
of this principle that the legal terminology is exhaustively interpreted. The term ‘sufficient cause’ is
broad in its sense and has been a point of debate in numerous cases. The judges have made attempts
to accord interpretations to this term that could deliver maximum degree of justice possible.
There are multiple dimensions to the term ‘sufficient cause’-

1
http://www.duhaime.org/LegalDictionary/V/VigilantibusEtNonDormientibusJuraSubveniunt.aspx, last accessed
August 03, 2018
2
[1963] 1 All E.R. 341
3
Section 3, Limitation Act, 1963
4
Section 5, Limitation Act, 1963
2.1 Is sufficient cause sufficiently flexible?
There exists a plethora of cases where the courts have opined that Section 5 should be subjected to
liberal interpretation for the purposes of delivering substantial justice. Discretion given by Section 5
should not be defined or crystallised so as to convert a discretionary matter into a rigid rule of law.
The expression "sufficient cause" should receive a liberal construction.5
Constant emphasis on adopting a liberal approach while interpreting the term ‘sufficient cause’ is
significant as it broadens the ambit of the section and opens up opportunity for the litigant to claim
relief. What is meant by liberal approach is that courts determine existence of sufficient cause, in a
given situation, shall be premised on an analysis of facts and circumstances of the case.6
What essentially constitutes as a proof of sufficient cause cannot be engraved in form of hard concrete
rules. Solidifying and objectifying the test of sufficient cause will manufacture undesirable
consequence of defeating the very objective of the principle of condonation - If the test is objectified,
then there will be many cases that may fall short of meeting the set standards of the test. Under
such circumstances, the courts will be bound to dismiss such cases despite having complete
knowledge of the cause of action. Such dismissal will not merely cause a serious violation of justice
at the hands of the judges but will also render the foundational principles of equity and fair play as
futile.
Technical approach and demand for explanation of each day’s delay has been largely criticised in
various judicial actions. To maintain the elasticity of the test, a call has been made for application of
the condonation doctrine in a pragmatic sense. Where there appears to be a clash between the pedantic
approach suspecting the innocence of delay and the urgent need for substantial justice, it has been
accepted as a general proposition that substantial justice shall be prioritised over a harsh scrutiny of
delay that has the potential of denying justice to the aggrieved, for the other side cannot claim to have
vested right in injustice being done because of a non-deliberate delay.
‘Judiciary is not respected on account of its power to legalise injustice on technical grounds but
because it is capable of removing injustice and is expected to do so.’ 7
A very significant feature of the condonation principle is that it does not presumes the delay to have
been occasioned deliberately. However, simultaneously this feature does not undermine the relevance
of a reasonable justification. The beauty of this provision lies in the concept of not making any
presumption regarding the nature or causes of delay and according the litigant an opportunity to
produce justification but simultaneously upholding the significance of only reasonable justifications
as admissible ground to condone the delay.
2.2 Proof of sufficient cause as condition precedent
‘The proof by sufficient cause is a condition precedent for exercise of the extraordinary discretion
vested in the court. What counts is not the length of the delay but the sufficiency of the cause and
shortness of the delay is one of the circumstances to be taken into account in using the discretion.’8
In absence of explicit mention of any specific set of criteria, author presumes it to be safe to assert
that what is inherently incorporated in Section 5 is the fact that the test of sufficient cause is the

5
New India Insurance Co. Ltd. v. Shanti Misra (1975 (2) SCC 840)
6
State of Kerala v. E. K. Kuriyipe (1981 Supp SCC 72)
7
Collector Land Acquisition v. Katiji (1987 (2) SCC 107)
8
State (Nct Of Delhi) vs Ahmed Jaan, (2008) 14 SCC 582
standard that needs to be fulfilled for a delay to be condoned. Hence, the exercise of jurisdiction so
as to condone the delay will entirely depend on production of a reasonable justification.
By designating proof of sufficient cause as a condition precedent, the principle has done a
commendable task of keeping a check on arbitrary exercise of jurisdiction. Reasonable diligence
of the appellant in prosecuting the appeal acts a as a true direction map for courts to exercise their
discretion under Section 5.9
‘Unless want of bona fides of such inaction or negligence as would deprive a party of the protection
of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be
condoned.’10-As condition precedent, the proof acts as a filter screen and ensures that only innocent
delays are considered and eventually condoned in the interest of justice.

2.3 Mistake of counsel & Negligence

A major chunk of cases where condonation of delay is pleaded either involve mistake on the part of
the litigant’s counsel or is a matter of negligence of his/her rights by the litigant. A litigant is basically
a layman who places reliance on legal expertise of the counsel and adheres to the advice given by
such counsel without probing the professional competence of advice so given. The courts believe
that, under such circumstances, the litigant shall be deemed innocent and there exists no reason to
deny justice to the innocent litigant on the basis of a delay caused due to the mistakes committed
by the counsel.
For the purposes of advancing substantial justice, the courts have recognised that there shall be a
legal shield safeguarding the misguided litigants from injustice that may arise from mistakes
committed by their legal representatives. Hence, it was opined by the court that where a litigant is
misled into delayed pursuit of his/her remedy due to negligence of the counsel, the delay shall be
condoned.11
What essentially qualifies as a Mistake of counsel is a subjective matter. It is a task for the court to
gauge the genuineness of the mistake and to accept only mistakes of bona fide character as a
ground for condonation. To maintain the purity of this ground, courts ought to exhibit a careful
examination in order to satisfy itself that the mistake was not occasioned to cover any ulterior purpose
but was an honest occurrence12-for such asserting this ground may also put a question on professional
ethics and legal career of the advocate, a sensitive yet precise approach is required on the part of
courts.

3. A CRITIQUE
After having the provision of condonation of delay subjected to thorough scrutiny, it is easy to
formulate an opinion in favour of this principle but author here would like to take the opportunity to
highlight few loopholes that tend to trouble the bona fide objective of this provision-
• There is a high probability that the tool of condonation may be used to manipulate the litigation
proceedings. Given the subjective test of sufficient cause, it is not quite difficult to cause
deliberate delay by fabricating false circumstances. Especially in cases where appeal is
preferred where heavy emphasis is to simply get the appeal admitted, the option to plead innocent

9
H.H Brij Indar Singh v. Kanshi Ram (ILR (1918) 45 Cal 94 (PC)
10
Shakuntala Devi Jain v. Kuntal Kumari, AIR 1969 SC 575
11
Concord of India Insurance Co. Ltd. v. Nirmala Devi, (1979 (4) SCC 365)
12
Lala Mata Din v. A. Narayanan, (1969 (2) SCC 770)
 delay acts as a catalyst that eases the process but unnecessarily prolongs the litigation thus wasting
time and energy of the court. Also, cases where intentional delay, disguised as reasonable
justification for delay succeeds in convincing the court that the delay was genuine, by
preferring such falsely delayed appeal/revision against whom it is sought, the court will cause
a serious miscarriage of justice!
• Although adequate emphasis has been placed, in numerous cases, on the requirement that only
genuine and reasonable justifications will be considered for availing the benefit of condonation;
the provision inevitably attracts situations where all sorts of delay are coloured as innocent
and persuaded to be condoned. This indirectly contradicts the objective of Law of Limitation, by
providing an extension to consider the claim, the cases instead of reaching a finality are
stretched in the name of innocent or unavoidable circumstances causing delay.
• The idea that the test of sufficient cause is entirely opinion based is also questionable. There is
no doubt that a reasonable justification for delay in approaching the court should be the prime
ground for condoning the delay, but opinion formulation is a matter of thought process. What
may appear to one judge as reasonable may not appear genuine enough to another one to grant a
condonation. Under such circumstances, the need for some standards arises undoubtedly. Author
has no intention to convey that opinion of the judge is irrelevant, but in addition to the judge’s
opinion about the justification for delay, there shall be certain standards or criteria that solidify the
judge’s decision whether or not to condone the delay.

4. CONCLUSION
The Limitation Act, 1963, is a welcome reform.13
-Dworkin
This principle has showcased tremendous strength and by accommodating space to misguided
litigants to reiterate their claim has not merely facilitated the efficiency of legal mechanism but has
successfully protected the principles of natural justice.
The second chance disguised as condonation of delay has functioned as a significant factor in
preventing gross violation of justice, equity and fair play that would have resulted from the denial of
cases where there lied a cause of action.
The flexibility offered by the principle has broadened the umbrella under which a wide range of cases
may seek redressal thus delivering justice to a greater quantum of population.
‘If the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to
condone the delay.’14 The achievements of this principle are so rewarding that the loopholes may
seem negligible. However, it is recommended that a degree of precaution is always adopted while
dealing with cases pleading condonation of delay. The precaution does not ceases to be of relevance
at the initial level of condoning the delay but even a higher and stricter level of scrutiny and
application of judicial mind is required to determine the test of sufficient cause.
The principle of condonation has beautifully solidified and continues to concretise the architecture
of Limitation Act, 1963.

13
Dworkin, Gerald (March 1964), ”Limitation Act, 1963". The Modern Law Review.
14
O. P. Kathpalia v. Lakhmir Singh, (1984 (4) SCC 66)