BHAGWAT SWARUP Vs. RAM GOPAL

JUDGEMENT

(1.) Section 5 of the Limitation Act permits the admission of an appeal presented after the expiry of the prescribed period of limitation if the appellant satisfied the Court that he had sufficient cause for not preferring the appeal within the period of limitation. One of the questions on which, I may add, the High Courts have not expressed the same opinion is, whether the appellant should merely explain the delay subsequent to the last date of the period of limitation or should also indicate that during the preceding period he had not been guilty of gross negligence, inaction or lack of bona fides. One view is that a party who had been grossly negligent or was guilty of inaction till about the end of the period of limitation, or did not originally have the intention to prefer an appeal but thought of appealing against the decree at the end of the period of limitation, is as much entitled to the benefit of Section 5, i.e., to the condonation of delay in the presentation of the appeal, as a party who was diligent from the beginning, provided that he can satisfy the Court that he could not prefer the appeal within time for reasons beyond his control. In other wards, antecedent gross negligence, inaction or lack of bona fides are not the matters to be taken into consideration when the Court is satisfied that due to illness or otherwise the appellant could not present the appeal within time, though he could otherwise present the appeal within time. The other view is that though it is not necessary for the appellant to explain his antecedent conduct in the same manner as he must explain every day's delay since after the expiry of the limitation, yet if he was guilty of negligence, inaction or lack of bona fides, no leniency can be shown to him and the delay in the presentation of appeal cannot be condoned under Section 5. In other words, if the delay subsequent to the expiry of the limitation is suitably explained, he must also satisfy the Court, directly or by implication, that he was not guilty of negligence, inaction or lack of bona fides, that is, to explain why he did not take prompt steps for the presentation of the appeal.

(2.) In view of the observations of the Supreme Court in Dinabandhu Sahu v. Jadumoni Mangaraj, AIR 1954 SC 411, wherein the Full Bench decision in Krishna v. Chathappan, ILR 13 Mad 269 had been quoted with approval, the law on the point can be presumed to be beyond controversy. Their Lordships had made the observation while considering the scope of Section 5 of the Limitation Act in an election matter in which much wider and unrestricted power had been given to the Election Commissioner to condone the delay in the filing of the election petition. The relevant observations are as below :

(3.) It will, .however, be proper to make a reference to a few reported cases of this Court and also of other High Courts which had been brought to my notice. In Ahmad Husain v. Muhammad Fasih Ullah, AIR 1923 All 455 the delay in the presentation of the appeal was not condoned, where it was found that the appellant applied for the copy of the judgment and decree only three days before the expiry of the period of limitation. The case of Deo Inder Singh v. Khushi Ram, AIR 1923 All 536 cannot be of much help as for moving an application for leave to appeal to His Majesty in Council it was not necessary to apply for a copy of the order of the High Court. The facts of the case as reported do not also indicate that an application had in fact been made for copy. Further, it is not clear from the reported case on which date the applicant was intending to come to Allahabad for the purpose of filing the application. It can, therefore, be that the applicant was intending to leave for Allahabad many days before the expiry of the period of limitation, but he suddenly felt ill and was confined to bed.