# RAMLAL, MOTILAL AND CHHOTELAL v. REWA COALFIELDS LTD

- **Citation:** [1962] 2 S.C.R. 762
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** CIVIL .APPELLATE JURISDICTION : Civil Appeal No. 276of1958
- **Bench:** P. B. Ga, Jendragadkar, K. N. Wanchoo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ramlal-motilal-and-chhotelal-v-rewa-coalfields-ltd-2293
- **Pages:** 13

## Headnote

' 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
\ ·
2 S.C.R. SUPREME COURT REPORTS
763
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
1961
Ramlal, Mali/al
and CliJwtelal
v.
Rewa Coalfield
Ltd.
GA-JBNl>llAGAIJKAH, J.-The short
question
Gajertdragait/ear
which falls to be cmrnidf'recl in this appeal relates tu
J.
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
1981
){tzmlal, Molifol
and Chhutdul
v.
Rewu .Uualjield
Ltd.
Gaje,.dragadkur
J,
764
SUPREME COURT REPORTS
[1962]
olitaining its ;;upplies from J\tkssrs Soo

## Text

1961
Mag, 4
762
SUPREME COURT REPORTS
[1962]
RAMLAL, MOTILAL AND CHHOTELAL
v.
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
\ ·
2 S.C.R. SUPREME COURT REPORTS
763
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
1961
Ramlal, Mali/al
and CliJwtelal
v.
Rewa Coalfield
Ltd.
GA-JBNl>llAGAIJKAH, J.-The short
question
Gajertdragait/ear
which falls to be cmrnidf'recl in this appeal relates tu
J.
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
1981
){tzmlal, Molifol
and Chhutdul
v.
Rewu .Uualjield
Ltd.
Gaje,.dragadkur
J,
764
SUPREME COURT REPORTS
[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
765
delay committed by it in. fllirig the ~ppeal shouid b~
' .
. 1961
•
Ramlal, }IJQtilal
and <J/lhotdal
v.
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
v.
Rewa Coalfield
Ltd.
Gajtndragadkar
J.
766
SUPREME COURT REPORTS
[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
767
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,
1061
Rarnlal, }rfolilal
and OldwteYal
v.
R e.wa 0 oci lfi<l<l
J.td.
GajendrlllJndk<w
J.
/
-= -·
'
.. •
.
(
768
,
' . "
... SUPREME COURT REPORTS:--:-[1962] •
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 the- appellant 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. Apurbakri-
"
sl!na Bajpeyi (")it- appeared -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 nevertheless- have to show· why he waited ·
(2) (1931) I-R.L S8 Cal 519.
(3}
A.~.R. 1916 Nai, 39
. ' . .
. -· ,.
. '
..
1961
Remlal, Motiial
and O~hotelal
v.
Rewa Coalfield
Liil.
Gajendragadkar
J.
770
SUPREME COURT REPORTS
(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.
DawsonMiller, 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.
SUPREME COURT REPORTS
771
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.
1961
Ramlal, Motilal
and Chholelal
v.
R.wa Coalfield
Ltd.
Gajeuragadkar
J.
1961
Ramm I, Moli /al
and a hhotela l
:v:
Rewa .Goa !field
Lld ..
Gajendragad kar,
J.
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 ..
SUPREME COURT REPORTS
77:3
The next case on which reliance has been plaC<'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.
-1
196/.
Ramlal, Motilal
and Chhotela•
v.
Rewa CoaljieU
Ltd.
1961
Ramlal, Moti/,al
and .Ohlwtelal
v.
R~wa Coalfield
Ltd.
Gajendr~.adkar
. .
J.
714
SUPREME COURT REPORTS
[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.