Source – Delhi High Court

Why in News?

• Recently the High Court of Delhi in the case of Dept. of Health, Govt. of NCT of Delhi v. Kamla Mehndiratta & Ors., has observed that condonation of delay is an exception which should not be used as per convenience of the Government departments.

Background

• The petitioner filed the writ petition challenging order of the Labour Court before the Delhi High Court and vide order dated 15th March 2007 the matter was listed in the category of Regular Matters.
• However, the matter was dismissed in default by the Court vide order dated 3rd May 2017 due to the non-appearance of the advocates on behalf of the petitioner.
• Thereafter, the petitioner filed the present application seeking condonation of delay of 691 days in filing the application seeking restoration of the petition.
• The application was dismissed by the Court

Court’s Observations

• Justice Chandra Dhari Singh observed that condonation of delay is an exception which should not be used as per convenience of the Government departments.
• He further added that the courts must not treat Government agencies differently while deciding the applications for condonation of delay and that the Government is under “special obligation” to ensure that their duties are properly performed.
• The Court said that despite knowing about dismissal of the petition due to non-appearance, the government department failed to file the application seeking restoration on time and chose to do so only after two years and as per its own convenience.
• The Court further said that the averments made in the application for a delay of 691 days cannot be classified as a reasonable delay in any manner.

Legal Provisions

• The condonation of delay means the extension of prescribed time in certain cases subject to sufficient cause.
• The concept of condoning a delay is primarily preferred to the applications and appeal and does not cover the suits.
• It applies to criminal proceedings only.
• Section 5 of the Limitation Act, 1963 (LA) deals with the concept of condonation of delay.
• Section 5 deals with extension of prescribed period in certain cases. It states that -
  • Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, (CPC) 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.
• The provision of Section 5 of LA does not necessarily imply that the power of the court to condone the delay is circumscribed by an application being filed.
• The power to condone delay can be exercised if the appellant satisfies the court that he had sufficient cause for not filing the appeal within the period prescribed.
• If an appeal is presented out of time in an explainable circumstance without a formal or written application, then the Courts should afford a reasonable opportunity to the parties to amend the matter to avoid miscarriage of justice.
• A written application for claiming relief under Section 5 is not essential and it is open to the Court to give relief without written application under this section if the interest of justice so requires.
• In Ram Lal v. Rewa Coalfields Ltd. (1962), SC held that there are two important considerations which must be kept in mind while considering the condonation of delay:
  • The expiration of the period of limitation gives rise to the legal rights in favor of the decree-holder to treat the decree passed in their favor as binding between the parties. The legal right which is accrued to the decree-holder by lapse of time should not be lightly disturbed.
  • If sufficient cause for the execution of delay is shown, then the discretion is given to the Court to condone the delay and admit the appeal. Proof of sufficient cause is a condition precedent in the exercise of discretionary jurisdiction.
• The following are the instances where condonation can be granted:
  • Subsequent changes in the law.
  • Illness of the party.
  • Imprisonment of the party.
  • Party is a pardanashin woman.
  • Party belongs to a minority group with insufficient funds.
  • Poverty or paupers.
  • Party is a government servant.
  • Delay due to the pendency of the writ petition.
  • Party is illiterate.
• In Ram Kali Kuer v. Indradeo Chaudhary (1985), it was held that section 5 does not provide that an application in writing must be filed before relief under the said provision can be granted.