Case Law Digest On Delay Condonation
Case Law Digest On Delay Condonation
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-SRIDHARA BABU.N
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DESAI,
D.A.,
JUSTICE
BEG,
M.
POWER
TO
LEGALISE
ON
TECHNICAL
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IF
SUCH
PLEA
HAS
NOT
BEEN
SPECIFICALLY RAISED
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THE
INNOCENT
ALLOWED
LITIGANT
TO SUFFER
COULD
NOT
BE
Rafiq
and
Anr.,
Appellants
v.
Munshilal
and
Anr.,
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agitates us is whether it is proper that the party should suffer for the
inaction, deliberate omission, or misdemeanor of his agent. The answer
obviously is in the negative. May be that the learned advocate absented
himself deliberately or intentionally. We have no material for ascertaining
that aspect of the matter. However, we cannot be a party to an innocent
party suffering injustice merely because his chosen advocate defaulted."
MERELY
BECAUSE
THE
ADDITIONAL
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THE
DATE
ON
WHICH
APPLICATION
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In New India Insurance Co. Ltd. v. Smt. Shanti Misra [AIR 1976 SC
237],
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In Concord of India Insurance Co. Ltd. v. Nirmala Devi & Ors. [(1979) 3
SCR 694] which is a case of negligence of the counsel which misled a
litigant into delayed pursuit of his remedy the default in delay was
condoned.
In Lala Mata Din v. A. Narayanan [(1970) 2 SCR 90], Court had held
that there is no general proposition that mistake of counsel by itself is
always sufficient cause for condonation of delay. It is always a question
whether the mistake was bona fide or was merely a devise to cover an
ulterior purpose. in that case it was held that the mistake committed by the
counsel was bona fide and it was not tainted by any mala fide motive.
In State of Kerala v. E.K. Kuriyipe & Ors. [(1981) Supp. SCC 72], it
was held that whether or not there is sufficient cause for condonation of
delay is a question of fact dependant upon the facts and circumstances of
the particular case.
In Smt. Milavi Devi v. Dina Nath [(1982) 3 SCR 366], it was held that
the appellant had sufficient cause for not filing the appeal within the period
of limitation.
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In O.P. Kathpaliaa v. Lakhmir Singh (dead) & Ors. [(1984) 4 SCC 66],
a Bench of three Judges had held that if the refusal to condone the delay
results in grave miscarriage of justice, it would be a ground to condone the
delay.
In Collector, Land Acquisition, Anantrag & Anr. v. Mst. Katiji & Ors.
[(1987) 2 SCC 107], a Bench of two Judges considered the question of
the limitation in an appeal filed by the State and held that Section 5 was
enacted in order to enable the court to do substantial justice to the parties
by disposing of matters on merits.
State Of Haryana vs Chandra Mani & Ors 1996 AIR 1623, 1996
SCC (3) 132 The expression "sufficient cause is adequately elastic to
enable the court to apply the law in a meaningful manner which subserves
the ends of the justice-that being the life-purpose for the existence of the
institution of courts. It is common knowledge that this Court has been
making a justifiably liberal approach in matters instituted in this Court. But
the message does not appear to have percolated down to all the other
courts in the hierarchy. This Court reiterated that the expression "every
day's delay must be explained" does not mean that a pedantic approach
should be made. The doctrine must be applied in a rational common sense
pragmatic manner. When substantial justice and technical considerations
are pitted against each other, cause of substantial justice deserves to be
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preferred for the other side cannot claim to have vested right in injustice
being done because of a non-deliberate delay. There is no presumption
that delay is occasioned deliberately, or on account of culpable negligence,
or on account of mala fides. A litigant does not stand to benefit by
resorting to delay. In fact he runs a serious risk. Judiciary is not respected
on account of its power to legalize injustice on technical grounds but
because it is capable of removing injustice and is expected to do so.
Making a justice-oriented approach from this perspective, there was
sufficient cause for condoning the delay in the institution of the appeal.
The fact that it was the State which was seeking condonation and not a
private party was altogether irrelevant. The doctrine of equality before law
demands that all litigants, including the State as a litigant, are accorded the
same treatment and the law is administered in an even-handed manner.
There is no warrant for according a step-motherly treatment when the
State is the applicant. The delay was accordingly condoned. Experience
shows that on account of an impersonal machinery ( no one in charge of the
matter is directly hit or hurt by the judgment sought to be subjected to
appeal) and the inherited bureaucratic methodology imbued with the notemaking, file-pushing, and passing-on-the-buck ethos, delay on its part is
less difficult to understand though more difficult to approve. The State
which represent collective cause of the community, does not deserve a
litigant-non-grata status. The courts, therefore, have to be informed with
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the spirit and philosophy of the provision in the course of the interpretation
of the expression of sufficient cause. Merit is preferred to scuttle a
decision on merits in turning down the case on technicalities of delay in
presenting the appeal. Delay was accordingly condoned, the order was set
aside and the matter was remitted to the High Court for disposal on merits
after affording opportunity of hearing to the parties.
In Smt. Prabha v. Ram Parkash Kalra [(1987) Supp. SCC 338], this
Court had held that the court should not adopt an injustice- oriented
approach in rejecting the application for condonation of delay. The appeal
was allowed, the delay was condoned and the matter was remitted for
expeditious disposal in accordance with law.
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In Ram Krishan & Anr. v. U.P. State Roadways Transport Corpn. &
Anr. [(1994) Supp. 2 SCC 507],
story put forward by the applicant for not filing the application for
compensation under the Motor Vehicles Act within the period of limitation
was not found convincing but keeping in vies the facts and circumstances
and cause of justice, the delay was condoned and the appeal was set aside
and the matter was remitted to the Tribunal to dispose it on merits.
State Of Haryana vs Chandra Mani & Ors 1996 AIR 1623, 1996
SCC (3) 132 It is notorious and common knowledge that delay in more
than 60 per cent of the cases filed in this Court - be it by private party or
the State - are barred by limitation and this Court generally adopts liberal
approach in condonation of delay finding somewhat sufficient cause to
decide the appeal on merits. It is equally common knowledge that litigants
including the State are accorded the same treatment and the law is
administered in an even-handed manner. When the State is an applicant,
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In case reported in 2010(2) SCC 595, the Hon'ble Supreme Court was
considering the appeal filed by the State. While Hon'ble Supreme Court
repeated that no hard and fast rule could be laid down in deciding such
cases, but remanded the matter back to the courts to ascertain, if sufficient
cause is made out as would appear from Paragraph-8 of the said which
reads as follows: "8. We have considered the respective submission. The
law of limitation is founded on public policy. The legislature does not
prescribe limitation with the object of destroying the rights of the parties
but to ensure that they do not resort to dilatory tactics and seek remedy
without delay. The idea is that every legal remedy must be kept alive for a
period fixed by the legislature. To put it differently, the law of limitation
prescribes a period within which legal remedy can be availed for redress of
the legal injury. At the same time, the courts are bestowed with the power
to condone the delay, if sufficient cause is shown for not availing the
remedy within the stipulated time. The expression "sufficient cause"
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employed in Section 5 of the Indian Limitation Act, 1963 and similar other
statutes is elastic enough to enable the courts to apply the law in a
meaningful manner which sub serves the ends of justice. Although, no hard
and fast rule can be laid down in dealing with the applications for
condonation of delay, this Court has justifiably advocated adoption of a
liberal approach in condoning the delay of short duration and a stricter
approach where the delay is inordinate - Collector, Land Acquisition,
Anantnag v. Mst. Katiji (1987) 2 SCC 107, N. Balakrishnan v. M.
Krishnamurthy (1998) 7 SCC 123 and Vedabai v. Shantaram Baburao
Patil (2001) 9 SCC 106. In dealing with the applications for condonation
of delay filed on behalf of the State and its agencies/instrumentalities this
Court has, while emphasizing that same yardstick should be applied for
deciding the applications for condonation of delay filed by the private
individuals and the State, observed that certain amount of latitude is not
impermissible in the latter case because the State represents collective
cause of the community and the decisions are taken by the
officers/agencies at a slow pace and encumbered process of pushing the
files from table to table consumes considerable time causing delay - G.
Ramegowda v. Spl. Land Acquisition Officer (1988) 2 SCC 142,
State of Haryana v. Chandra Mani (1996) 3 SCC 132, State of U.P.
v. Harish Chandra (1996) 9 SCC 309, State of Bihar v. Ratan Lal
Sahu (1996) 10 SCC 635, State of Nagaland v. Lipok (2005) 3
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UTMOST
CONSIDERATION
TO
THE
SUITOR
In N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123, the Court
went a step further and made the following observations: It is axiomatic
that condonation of delay is a matter of discretion of the court. Section 5
of the Limitation Act does not say that such discretion can be exercised
only if the delay is within a certain limit. Length of delay is no matter,
acceptability of the explanation is the only criterion. Sometimes delay of
the shortest range may be uncondonable due to a want of acceptable
explanation whereas in certain other cases, delay of a very long range can
be condoned as the explanation thereof is satisfactory. Once the court
accepts the explanation as sufficient, it is the result of positive exercise of
discretion and normally the superior court should not disturb such finding,
much less in revisional jurisdiction, unless the exercise of discretion was on
wholly untenable grounds or arbitrary or perverse. But it is a different
matter when the first court refuses to condone the delay. In such cases, the
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superior court would be free to consider the cause shown for the delay
afresh and it is open to such superior court to come to its own finding even
untrammelled by the conclusion of the lower court. Rules of limitation are
not meant to destroy the rights of parties. They are meant to see that
parties do not resort to dilatory tactics, but seek their remedy promptly.
The object of providing a legal remedy is to repair the damage caused by
reason of legal injury. The law of limitation fixes a lifespan for such legal
remedy for the redress of the legal injury so suffered. Time is precious and
wasted time would never revisit. During the efflux of time, newer causes
would sprout up necessitating newer persons to seek legal remedy by
approaching the courts. So a lifespan must be fixed for each remedy.
Unending period for launching the remedy may lead to unending
uncertainty and consequential anarchy. The law of limitation is thus
founded on public policy. It is enshrined in the maxim interest reipublicae up
sit finis litium (it is for the general welfare that a period be put to litigation).
Rules of limitation are not meant to destroy the rights of the parties. They
are meant to see that parties do not resort to dilatory tactics but seek their
remedy promptly. The idea is that every legal remedy must be kept alive for
a legislatively fixed period of time. It must be remembered that in every case
of delay, there can be some lapse on the part of the litigant concerned.
That alone is not enough to turn down his plea and to shut the door
against him. If the explanation does not smack of mala fides or it is not put
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inordinate and a case where the delay is of few days and whereas in the
former case the consideration of prejudice to the other side will be a
relevant factor, in the latter case no such consideration arises.
While deciding whether there is a sufficient case or not, the court must
bear in mind the object of doing substantial justice to all the parties
concerned and that the technicalities of the law should not prevent the
court from doing substantial justice and doing away the illegality
perpetuated on the basis of the judgment impugned before it. (Vide: State
of Bihar & Ors. v. Kameshwar Prasad Singh & Anr., AIR 2000
SC 2306; Madanlal v. Shyamlal, AIR 2002 SC 100; Davinder Pal
Sehgal & Anr. v. M/s. Partap Steel Rolling Mills (P) Ltd. &
Ors., AIR 2002 SC 451; Ram Nath Sao alias Ram Nath Sao &
Ors. v. Gobardhan Sao & Ors., AIR 2002 SC 1201; Kaushalya
Devi v. Prem Chand & Anr. (2005) 10 SCC 127; Srei International
Finance Ltd., v. Fair growth Financial Services Ltd. & Anr., (2005)
13 SCC 95; and Reena Sadh v. Anjana Enterprises, AIR 2008 SC
2054).
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meant to destroy the rights of the parties. They are meant only to see that
parties do not resort to dilatory tactics but seek their remedy promptly.
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S. 5
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Syed Mujibur Rahman vs Abdul Azeez AIR 2001 Kant 104 , This is a
case came before Karnataka High Court, Challenging the order passed
by lower court in setting aside Exparte order of dismissal of suit for non
prosecution, under an application under Order 9 Rule 9. The cause, both
for default in appearance in the said suit, and also for the delay of
about 18 months caused in filing of the application in the said Misc. case
. given by applicant-plaintiff was the common cause, and it was the
alleged negligence on the part of his learned counsel . representing
him in the suit. In informing him of the dates of hearing in the suit and of the
trial court's said order passed dismissing the suit. Lower court
accepted plaintiffs plea and set aside the order. Before High court, the
impugned order of the Court below is set aside and the application under
Order 9 Rule 9, C.P.C. filed therein is dismissed as time barred.
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CAUSE
AND
GOOD
CAUSE
DIFFERENTIATED
In Arjun Singh v. Mohindra Kumar & Ors., AIR 1964 SC 993,
Court observed that every good cause is a sufficient cause and must offer
an explanation for non-appearance. The only difference between a good
cause and sufficient cause is that the requirement of a good cause is
complied with on a lesser degree of proof than that of a sufficient cause.
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that the technicalities of the law should not prevent the court from doing
substantial justice and doing away the illegality perpetuated on the basis of
the judgment impugned before it. (Vide: State of Bihar & Ors. v.
Kameshwar Prasad Singh & Anr., AIR 2000 SC 2306; Madanlal v.
Shyamlal, AIR 2002 SC 100; Davinder Pal Sehgal & Anr. v. M/s.
Partap Steel Rolling Mills (P) Ltd. & Ors., AIR 2002 SC 451; Ram
Nath Sao alias Ram Nath Sao & Ors. v. Gobardhan Sao &
Ors., AIR 2002 SC 1201; Kaushalya Devi v. Prem Chand & Anr.
(2005) 10 SCC 127; Srei International Finance Ltd., v. Fair growth
Financial Services Ltd. & Anr., (2005) 13 SCC 95; and Reena
Sadh v. Anjana Enterprises, AIR 2008 SC 2054).
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matters instituted in this Court. But the message does not appear to have
percolated down to all other Courts in the hierarchy. And such a liberal
approach is adopted on principle as it is realized that: Ordinarily a litigant
does not stand to benefit by lodging an appeal late. Refusing to condone
delay can result in a meritorious matter being thrown out at the very
threshold and cause of justice being defeated. As against this when delay
is condoned the highest that can happen is that a cause would be decided
on merits after hearing the parties.
In New India Insurance Co. Ltd. v. Smt. Shanti Misra [AIR 1976 SC
237], Supreme Court held that discretion given by Section 5 should not
be defined or crystalized so as to convert a discretionary matter into a rigid
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In Inder Singh v. Kanshi Ram [AIR 1917 PC 156] it was observed that
true guide for a court to exercise the discretion under Section 5 is whether
the appellant acted with reasonable diligence in prosecuting the appeal.
In Shakuntala Devi Jain v. Kuntal Kumari & Ors. [(1969) 1 SCR 1006],
a Bench of three Judges had held that 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.
In Concord of India Insurance Co. Ltd. v. Nirmala Devi & Ors. [(1979) 3
SCR 694] which is a case of negligence of the counsel which misled a
litigant into delayed pursuit of his remedy the default in delay was
condoned.
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an ulterior purpose. in that case it was held that the mistake committed by
the counsel was bona fide and it was not tainted by any mala fide motive.
In State of Kerala v. E.K. Kuriyipe & Ors. [(1981) Supp. SCC 72], it
was held that whether or not there is sufficient cause for condonation of
delay is a question of fact dependant upon the facts and circumstances of
the particular case.
In Smt. Milavi Devi v. Dina Nath [(1982) 3 SCR 366], it was held that
the appellant had sufficient cause for not filing the appeal within the period
of limitation. This Court under Art.136 can reassess the ground and in
appropriate case set aside the order made by the High Court or the
Tribunal and remit the matter for hearing on merits. It was accordingly
allowed, delay was condoned and case was remitted for decision on merits.
In O.P. Kathpaliaa v. Lakhmir Singh (dead) & Ors. [(1984) 4 SCC 66],
a Bench of three Judges had held that if the refusal to condone the delay
results in grave miscarriage of justice, it would be a ground to condone the
delay. Delay was accordingly condoned.
In Collector, Land Acquisition, Anantrag & Anr. v. Mst. Katiji & Ors.
[(1987) 2 SCC 107], a Bench of two Judges considered the question of
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the limitation in an appeal filed by the State and held that Section 5 was
enacted in order to enable the court to do substantial justice to the parties
by disposing of matters on merits. The expression "sufficient cause is
adequately elastic to enable the court to apply the law in a meaningful
manner which subserves the ends of the justice-that being the life-purpose
for the existence of the institution of courts. It is common knowledge that
this Court has been making a justifiably liberal approach in matters
instituted in this Court. But the message does not appear to have
percolated down to all the other courts in the hierarchy. This Court
reiterated that the expression "every day's delay must be explained" does
not mean that a pedantic approach should be made. The doctrine must be
applied in a rational common sense pragmatic manner. When substantial
justice and technical considerations are pitted against each other, cause of
substantial justice deserves to be preferred for the other side cannot claim
to have vested right in injustice being done because of a non-deliberate
delay. There is no presumption that delay is occasioned deliberately, or on
account of culpable negligence, or on account of mala fides. A litigant does
not stand to benefit by resorting to delay. In fact he runs a serious risk.
Judiciary is not respected on account of its power to legalize injustice on
technical grounds but because it is capable of removing injustice and is
expected to do so. Making a justice-oriented approach from this
perspective, there was sufficient cause for condoning the delay in the
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institution of the appeal. The fact that it was the State which was seeking
condonation and not a private party was altogether irrelevant. The
doctrine of equality before law demands that all litigants, including the
State as a litigant, are accorded the same treatment and the law is
administered in an even-handed manner. There is no warrant for according
a step-motherly treatment when the State is the applicant. The delay was
accordingly condoned. Experience shows that on account of an impersonal
machinery ( no one in charge of the matter is directly hit or hurt by the
judgment sought to be subjected to appeal) and the inherited bureaucratic
methodology imbued with the note-making, file-pushing, and passing-onthe-buck ethos, delay on its part is less difficult to understand though more
difficult to approve. The State which represent collective cause of the
community, does not deserve a litigant-non-grata status. The courts,
therefore, have to be informed with the spirit and philosophy of the
provision in the course of the interpretation of the expression of sufficient
cause. Merit is preferred to scuttle a decision on merits in turning down the
case on technicalities of delay in presenting the appeal. Delay was
accordingly condoned, the order was set aside and the matter was remitted
to the High Court for disposal on merits after affording opportunity of
hearing to the parties.
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interest was shown to have suffered owing to acts of fraud or bad faith on
the part of its officers or agents and where the officers were clearly at
cross-purposes with it. It was, therefore, held that in assessing what
constitutes sufficient cause for purposes of Section 5, it might, perhaps,
be somewhat unrealistic to exclude from the consideration that go into the
judicial verdict, these factors which are peculiar to and characteristic of the
functioning of the Government. Government decisions are proverbially
slow encumbered, as they are, by a considerable degree of procedural red
tape in the process of their making. A certain amount of latitude is,
therefore, not impermissible. It is rightly said that those who bear
responsibility of Government must have a little play at the joints'. Due
recognition of these limitations on Governmental functioning - of course,
within reasonable limits - is necessary if the judicial approach is not to be
rendered unrealistic. It would, perhaps, be unfair and unrealistic to put
Government and private parties on the same footing in all respects in such
matters. Implicit in the very nature of Governmental functioning is
procedural delay incidental to the decision making process. The delay of
over one year was accordingly condoned.
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merits and the delay of 1146 to 1079 days was not condoned on the
ground that the parties approached the court after decision on merits was
allowed in other cases by this Court. Therefore, it was held that it did not
furnish a ground for condonation of delay under Section 5.
In Binod Bihari Singh v. Union of India [(1993) 1 SCC 572], it was held
that it is not at all a fit case where in the anxiety to render justice to a party
so that a just cause is not defeated, a pragmatic view should be taken by
the court in considering sufficing cause for condonation of the delay under
Section 5. It was held that when the party has come with a false plea to get
rid of the bar of limitation, the court should not encourage such person by
condoning the delay and result in the bar of limitation pleaded by the
opposite party. This Court, therefore, refused to condone the delay in
favour of the party who came forward with false plea.
In Ram Krishan & Anr. v. U.P. State Roadways Transport Corpn. &
Anr. [(1994) Supp. 2 SCC 507], Supreme Court had held that
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although the story put forward by the applicant for not filing the
application for compensation under the Motor Vehicles Act within the
period of limitation was not found convincing but keeping in vies the facts
and circumstances and cause of justice, the delay was condoned and the
appeal was set aside and the matter was remitted to the Tribunal to
dispose it on merits.
In Warlu v. Gangotribai & Anr. [(1995) Supp. 1 SCC 37] a threeJudge Bench condoned delay of 11 years in filing the special leave
petition.
Following these Obove judgments, the Supreme Court in the case of
State of Haryana v. Chandra Mani and Ors. AIR 1996 SC 1623 , has
held as under: It is notorious and common knowledge that delay in more
than 60 per cent of the cases filed in this Court - be it by private party or
the State - are barred by limitation and this Court generally adopts liberal
approach in condonation of delay finding somewhat sufficient cause to
decide the appeal on merits. It is equally common knowledge that litigants
including the State are accorded the same treatment and the law is
administered in an even-handed manner. When the State is an applicant,
praying for condonation of delay, it is common knowledge that on account
of impersonal machinery and the inherited bureaucratic methodology
imbued with the note-making, file-pushing, and passing-on-the-buck ethos,
Sridhara babu. N
delay on the part of the State is less difficult to understand though more
difficult to approve, but the State represents collective cause of the
community. It is axiomatic that decisions are taken by officers/agencies
proverbially at slow pace and encumbered process of pushing the files from
table to table and keeping it on table for considerable time causing delay
intentional or otherwise - is a routine. Considerable delay of procedural
red tape in the process of their making decision is a common feature.
Therefore, certain amount of latitude is not impermissible. If the appeals
brought by the State are lost for such default no person is individually
affected but what in the ultimate analysis suffers, is public interest. The
expression "sufficient cause" should, therefore, be considered with
pragmatism in justice-oriented approach rather than the technical detection
of sufficient cause for explaining every day's delay. The factors which are
peculiar to and characteristic of the functioning of the Governmental
conditions would be cognizant to and requires adoption of pragmatic
approach in justice-oriented process. The Court should decide the
matters on merits unless the case is hopelessly without merit. No separate
standards to determine the cause laid by the State vis-a-vis private litigant
could be laid to prove strict standards of sufficient cause. The
Government at appropriate level should constitute legal cells to examine
the cases whether any legal principles are involved for decision by the cours
or whether cases require adjustment and should authorise the officers take
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Form No. 7 is noted and orders passed by the Land Reforms Tribunal,
Bangalore South Taluk in all those cases at any rate as contained in this
book, for enquiry to the aforesaid committee which may throw some light on
the way the tribunal, the Government officials and others have discharged
their duties in protecting public property, and if illegalities are found to take
steps to restore the land to the Government.
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part of its officers or agents and where the officers were clearly at crosspurposes with it. On account of impersonal machinery, no one Page 0797
incharge of the matter is directly hit or hurt by the judgment sought to be
subjected to appeal and the inherited bureaucratic methodology imbued
with the note-making, file pushing and passing on the buck ethos, delay on
its part is less difficult to understand though more difficult to approve. In
any event, the State which represent collective cause of the community,
does not deserve a litigant-non-grata status. The Courts therefore, have
to be informed with the spirit and philosophy of the provision in the course
of the interpretation of the expression of sufficient cause. Refusing to
condone the delay can result in a meritorious matter being thrown out, at
the very threshold and cause of justice being defeated. As against this,
when delay is condoned, the highest that can happen is that a case would
be decided on merits after hearing the parties. When substantial justice
and technical considerations are pitted against each other, cause of
substantial justice deserves to be preferred. The technicalities of
procedure should yield to considerations which would promote public
interest and substantial justice. The Courts should decide the matters on
merits, unless it is hopelessly without any merit.
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interest, is shocking. When the matter was brought to the notice of the
Lokayuktha, it issued a clean chit to those officials saying that the public
interest has not suffered. There cannot be a worst situation than this. A
mighty Government rendered helpless by such advise and breach of trust.
If the order of the Land Reforms Tribunal exists as contended by the
plaintiff, it is clear that the Assistant Commissioner who is the Chairman of
the Tribunal has failed to notice the aforesaid statutory provisions which
confers no right to the vested land in the inamdar and the Tribunal to grant
occupancy rights in respect of a tank bed. He is a party to this order of
grant granting public property to the plaintiff. When the suit was filed for
Page 0798 declaration of title on the basis of the said document though
appropriate defence were taken in the written statement, the same is not
pursued as they were expected to and in the result a decree came to be
passed. Though it was stated in the written statement filed in the suit,
steps would be taken to challenge the order of the Land Tribunal, no writ
petition was filed, a serious lapse. The learned Government Advocate who
conducted the case on behalf of the Government instead of advising
suitably the Government to prefer an appeal, gave his opinion that it is not
a fit case for an appeal. The Director of Public Prosecution (Civil) who
was expected to apply his mind and take an independent decision has failed
to discharge his duties and he has concurred with the opinion given by the
learned Government Advocate not to prefer an appeal. It appears
Sridhara babu. N
thereafter the concerned file did not reach the Law Department nor any
opinion was sought from the Law Department. Even when the matter was
being agitated in this Court in writ proceedings, advocate who was incharge
of these matters appears to have not applied his mind properly.
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GOVERNMENT
FACING
CHALLENGES
WITH
Sridhara babu. N
439
JUSTICE
KUMAR
OBSEERVED:-
Sridhara babu. N
A.U. Valiulla vs A.V. Shafiulla 2003 (4) KarLJ 507 It is no doubt true
that the Court should be liberal in the matter of condoning the delay in
preferring the appeal especially when no mala fides are attributed. But
then, the delay is inexcusable unless sufficient cause is shown. It is not the
law when an application seeking condonation of delay is filed by a party,
this Court must invariably condone the delay, irrespective of whether
sufficient cause is shown or not. Section 5 of the limitation Act gives the
Court a discretion which in respect of jurisdiction is to be exercised in the
way in which judicial power and discretion ought to be exercised upon
principles which are well-understood and the words "sufficient cause"
receiving a liberal construction so as to advance substantial justice when no
negligence nor inaction nor want of bona fide is imputable to the appellant.
In the instant case, though the appellant was aware of the judgment and
decree passed by the first Appellate Court in the month of March 2002,
he did not file the appeal within the prescribed time. The explanation
offered to condone the delay is neither convincing nor acceptable and more
so when the same is not supported by any material on record. On the face
of it, there appears to be no sufficient cause to condone the delay.
Sridhara babu. N
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In New India Insurance Co. Ltd. v. Smt. Shanti Misra [AIR 1976 SC
237], Supreme Court held that discretion given by Section 5 should not
be defined or crystalized so as to convert a discretionary matter into a rigid
rule of law. The expression "sufficient cause' should receive a liberal
construction.
In Inder Singh v. Kanshi Ram [AIR 1917 PC 156] it was observed that
true guide for a court to exercise the discretion under Section 5 is whether
the appellant acted with reasonable diligence in prosecuting the appeal.
In Shakuntala Devi Jain v. Kuntal Kumari & Ors. [(1969) 1 SCR 1006],
a Bench of three Judges had held that 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.
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In Concord of India Insurance Co. Ltd. v. Nirmala Devi & Ors. [(1979) 3
SCR 694] which is a case of negligence of the counsel which misled a
litigant into delayed pursuit of his remedy the default in delay was
condoned.
In State of Kerala v. E.K. Kuriyipe & Ors. [(1981) Supp. SCC 72], it
was held that whether or not there is sufficient cause for condonation of
delay is a question of fact dependant upon the facts and circumstances of
the particular case.
In Smt. Milavi Devi v. Dina Nath [(1982) 3 SCR 366], it was held that
the appellant had sufficient cause for not filing the appeal within the period
of limitation. This Court under Art.136 can reassess the ground and in
appropriate case set aside the order made by the High Court or the
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Tribunal and remit the matter for hearing on merits. It was accordingly
allowed, delay was condoned and case was remitted for decision on merits.
In O.P. Kathpaliaa v. Lakhmir Singh (dead) & Ors. [(1984) 4 SCC 66],
a Bench of three Judges had held that if the refusal to condone the delay
results in grave miscarriage of justice, it would be a ground to condone the
delay. Delay was accordingly condoned.
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justice and technical considerations are pitted against each other, cause of
substantial justice deserves to be preferred for the other side cannot claim
to have vested right in injustice being done because of a non-deliberate
delay. There is no presumption that delay is occasioned deliberately, or on
account of culpable negligence, or on account of mala fides. A litigant does
not stand to benefit by resorting to delay. In fact he runs a serious risk.
Judiciary is not respected on account of its power to legalize injustice on
technical grounds but because it is capable of removing injustice and is
expected to do so. Making a justice-oriented approach from this
perspective, there was sufficient cause for condoning the delay in the
institution of the appeal. The fact that it was the State which was seeking
condonation and not a private party was altogether irrelevant. The
doctrine of equality before law demands that all litigants, including the
State as a litigant, are accorded the same treatment and the law is
administered in an even-handed manner. There is no warrant for according
a step-motherly treatment when the State is the applicant. The delay was
accordingly condoned. Experience shows that on account of an impersonal
machinery ( no one in charge of the matter is directly hit or hurt by the
judgment sought to be subjected to appeal) and the inherited bureaucratic
methodology imbued with the note-making, file-pushing, and passing-onthe-buck ethos, delay on its part is less difficult to understand though more
difficult to approve. The State which represent collective cause of the
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In Binod Bihari Singh v. Union of India [(1993) 1 SCC 572], it was held
that it is not at all a fit case where in the anxiety to render justice to a party
so that a just cause is not defeated, a pragmatic view should be taken by
the court in considering sufficing cause for condonation of the delay under
Section 5. It was held that when the party has come with a false plea to get
rid of the bar of limitation, the court should not encourage such person by
condoning the delay and result in the bar of limitation pleaded by the
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In Ram Krishan & Anr. v. U.P. State Roadways Transport Corpn. &
Anr. [(1994) Supp. 2 SCC 507], Supreme Court had held that
although the story put forward by the applicant for not filing the
application for compensation under the Motor Vehicles Act within the
period of limitation was not found convincing but keeping in vies the facts
and circumstances and cause of justice, the delay was condoned and the
appeal was set aside and the matter was remitted to the Tribunal to
dispose it on merits.
In Warlu v. Gangotribai & Anr. [(1995) Supp. 1 SCC 37] a threeJudge Bench condoned delay of 11 years in filing the special leave
petition.
Following these Obove judgments, the Supreme Court in the case
of State of Haryana v. Chandra Mani and Ors. AIR 1996 SC 1623 ,
Sridhara babu. N
has held as under: It is notorious and common knowledge that delay in more
than 60 per cent of the cases filed in this Court - be it by private party or
the State - are barred by limitation and this Court generally adopts liberal
approach in condonation of delay finding somewhat sufficient cause to
decide the appeal on merits. It is equally common knowledge that litigants
including the State are accorded the same treatment and the law is
administered in an even-handed manner. When the State is an applicant,
praying for condonation of delay, it is common knowledge that on account
of impersonal machinery and the inherited bureaucratic methodology
imbued with the note-making, file-pushing, and passing-on-the-buck ethos,
delay on the part of the State is less difficult to understand though more
difficult to approve, but the State represents collective cause of the
community. It is axiomatic that decisions are taken by officers/agencies
proverbially at slow pace and encumbered process of pushing the files from
table to table and keeping it on table for considerable time causing delay
intentional or otherwise - is a routine. Considerable delay of procedural
red tape in the process of their making decision is a common feature.
Therefore, certain amount of latitude is not impermissible. If the appeals
brought by the State are lost for such default no person is individually
affected but what in the ultimate analysis suffers, is public interest. The
expression "sufficient cause" should, therefore, be considered with
pragmatism in justice-oriented approach rather than the technical detection
Sridhara babu. N
of sufficient cause for explaining every day's delay. The factors which are
peculiar to and characteristic of the functioning of the Governmental
conditions would be cognizant to and requires adoption of pragmatic
approach in justice-oriented process. The Court should decide the
matters on merits unless the case is hopelessly without merit. No separate
standards to determine the cause laid by the State vis-a-vis private litigant
could be laid to prove strict standards of sufficient cause. The
Government at appropriate level should constitute legal cells to examine
the cases whether any legal principles are involved for decision by the cours
or whether cases require adjustment and should authorise the officers take
a decision or give appropriate permission for settlement. In the event of
decision to file appeal needed prompt action should be pursued by the
officer responsible to file the appeal and he should be made personally
responsible for lapses, if any. Equally, the State cannot be put on the
same footing as an individual. The individual would always be quick in taking
the decision whether he would pursue the remedy by way of an appeal or
application since he is a person legally injured while State is an impersonal
machinery working through its officers or servants. Considered from this
perspective, it must be held that the delay of 109 days in this case has been
explained and that it is a fit case for condonation of the delay. On the facts
and circumstances of the case, we are of the opinion that it is a fit case for
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condone the delay can result in a meritorious matter being thrown out, at
the very threshold and cause of justice being defeated. As against this,
when delay is condoned, the highest that can happen is that a case would
be decided on merits after hearing the parties. When substantial justice
and technical considerations are pitted against each other, cause of
substantial justice deserves to be preferred. The technicalities of
procedure should yield to considerations which would promote public
interest and substantial justice. The Courts should decide the matters on
merits, unless it is hopelessly without any merit.
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the decree and not merely avoidable decree. If the decree strikes at the
jurisdiction of the Court or the Court lacks jurisdiction, it strikes at the
very root of the authority to pass the order or the decree. The decree
passed by such a Court is a nullity and non est.
Sridhara babu. N
Page 0798 declaration of title on the basis of the said document though
appropriate defence were taken in the written statement, the same is not
pursued as they were expected to and in the result a decree came to be
passed. Though it was stated in the written statement filed in the suit,
steps would be taken to challenge the order of the Land Tribunal, no writ
petition was filed, a serious lapse. The learned Government Advocate who
conducted the case on behalf of the Government instead of advising
suitably the Government to prefer an appeal, gave his opinion that it is not
a fit case for an appeal. The Director of Public Prosecution (Civil) who
was expected to apply his mind and take an independent decision has failed
to discharge his duties and he has concurred with the opinion given by the
learned Government Advocate not to prefer an appeal. It appears
thereafter the concerned file did not reach the Law Department nor any
opinion was sought from the Law Department. Even when the matter was
being agitated in this Court in writ proceedings, advocate who was incharge
of these matters appears to have not applied his mind properly.
Sridhara babu. N
it is heartening to note that there are some officials still left in the
administration who have a commitment in life and who think about public
good. The said officiate at the relevant point of time did notice that the
schedule land is a Government land and it is a 'sarkari kere' and mutation
entries cannot be made in the name of the decree holder. They resisted the
attempt to get the mutation entries made. It is only when arrest warrants
were issued against them for disobeying the decree of a Civil Court, the
Government realised the blunder they have committed and the Law
Officers who betrayed its trust. Then they have approached the Law
Department, sought for their opinion and on consideration of the entire
material the Law Department gave its advice on 22.12.2003 to the effect
that it is a fit case for preferring the appeal. On 7.1.2004 the Government
accorded sanction to prefer the appeal. When Lokayukta was requested
to investigate the circumstances in which no appeal was filed earlier, the
Lokayukta had issued an endorsement to the effect that there are no
laches on the part of any Government servant and that it appears that no
loss has been caused to the State. It is thereafter the appeal is filed with
an application for condonation of delay.
Sridhara babu. N
GOVERNMENT
FACING
CHALLENGES
WITH
439
JUSTICE
KUMAR
OBSEERVED:-
Sridhara babu. N
others being a privy to these illegal activities right under the nose of the
seat of power. Now that multinational companies are competing with each
other to have a foot hold in Bangalore, with the liberalization, globalization
and privatization, having its impact on all walks of life in the society, whether
the Government is capable of meeting the challenges in the field of law and
in protecting its people and its properties, with the kind of legal assistance
they have. There is no dearth for legal talent in the State. The problem is
the mind to utilise the said talent. This case should be an eye opener to the
Government. It is for them to take appropriate steps to overhaul their
revenue, and legal department, including the quality of the Advocates they
choose to represent them in Courts, if the Government is sincere in
protecting the public and its properties.
A.U. Valiulla vs A.V. Shafiulla 2003 (4) KarLJ 507 It is no doubt true
that the Court should be liberal in the matter of condoning the delay in
preferring the appeal especially when no mala fides are attributed. But
then, the delay is inexcusable unless sufficient cause is shown. It is not the
law when an application seeking condonation of delay is filed by a party,
this Court must invariably condone the delay, irrespective of whether
sufficient cause is shown or not. Section 5 of the limitation Act gives the
Court a discretion which in respect of jurisdiction is to be exercised in the
way in which judicial power and discretion ought to be exercised upon
Sridhara babu. N
CONDONATION OF DELAY
STATE
(NCT
OF
DELHI)
VS
AHMED
JAAN.
HELD: It is sufficiency of the cause which counts, and not length of delay
- Expression "sufficient cause" should receive a liberal construction - As
regards delay on the part of State, certain amount of latitude is not
impermissible - Expression "sufficient cause" should be considered with
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What constitutes sufficient cause cannot be laid down by hard and fast
rules. In New India Insurance Co. Ltd. v. Shanti Misra (1975 (2) SCC
840) Supreme Court held that 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. In Brij Indar Singh v. Kanshi Ram (ILR (1918) 45 Cal 94
(PC) it was observed that true guide for a court to exercise the discretion
under Section 5 is whether the appellant acted with reasonable diligence in
prosecuting the appeal. In Shakuntala Devi Jain v. Kuntal Kumari (AIR
1969 SC 575) a Bench of three Judges had held that unless want of
Sridhara babu. N
In Concord of India Insurance Co. Ltd. v. Nirmala Devi (1979 (4) SCC
365) which is a case of negligence of the counsel which misled a litigant into
delayed pursuit of his remedy, the default in delay was condoned. In Lala
Mata Din v. A. Narayanan (1969 (2) SCC 770), Supreme Court had
held that there is no general proposition that mistake of counsel by itself is
always sufficient cause for condonation of delay. It is always a question
whether the mistake was bona fide or was merely a device to cover an
ulterior purpose. In that case it was held that the mistake committed by the
counsel was bona fide and it was not tainted by any mala fide motive. In
State of Kerala v. E. K. Kuriyipe (1981 Supp SCC 72), it was held
that whether or not there is sufficient cause for condonation of delay is a
question of fact dependant upon the facts and circumstances of the
particular case. In Milavi Devi v. Dina Nath (1982 (3) SCC 366), it was
held that the appellant had sufficient cause for not filing the appeal within
the period of limitation.
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Governmental functioning is procedural delay incidental to the decisionmaking process. The delay of over one year was accordingly condoned.
Sridhara babu. N
MOHAMMED
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the fact that even the power of the court for extension inhering in Section
148 of the Code, has also been restricted by the legislature. It would be
proper to encourage the belief in litigants that the imperative of Order 8
Rule 1 must be adhered to and that only in rare and exceptional case, will
the breach thereof will be condoned. Such an approach by courts alone
can carry forward the legislative intent of avoiding delays or at least in
curtailing the delays in the disposal of suits filed in courts.
Supreme Court, in Smt. Rani Kusum v. Smt. Kanchan Devi and Ors.
reported in (2005) 5 SCC 705, Order VIII, Rule 1 after the amendment
casts an obligation on the defendant to file the written statement within 30
days from the date of service of summons on him and within the extended
time falling within 90 days. The provision does not deal with the power of
the court and also does not specifically take away the power of the court to
take the written statement on record though filed beyond the time as
provided for. Further, the nature of the provision contained in Order VIII,
Rule 1 is procedural. It is not a part of the substantive law. Substituted
Order VIII, Rule 1 intends to curb the mischief of unscrupulous
defendants adopting dilatory tactics, delaying the disposal of cases
causing inconvenience to the plaintiffs and petitioners approaching the
court for quick relief and also to the serious inconvenience of the court
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it. Next, there must be ever present to the mind the fact that our laws of
procedure are grounded on a principle of natural justice which requires that
men should not be condemned unheard, that decisions should not be
reached behind their backs, that proceedings that affect their lives and
property should not continue in their absence and that they should not be
precluded from participating in them. Of course, there must be exceptions
and where they are clearly defined they must be given effect to. But taken
by and large, and subject to that proviso, our laws of procedure should be
construed, wherever that is reasonably possible, in the light of that
principle. "
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and instead pass such order as it may think fit in relation to the suit. In
construing the provision of Order VIII Rule 1 and Rule 10, the doctrine of
harmonious construction is required to be applied. The effect would be
that under Rule 10 of Order VIII, the court in its discretion would have
power to allow the defendant to file written statement even after expiry of
period of 90 days provided in Order VIII Rule 1. There is no restriction in
Order VIII Rule 10 that after expiry of ninety days, further time cannot be
granted. The Court has wide power to 'make such order in relation to the
suit as it thinks fit'. Clearly, therefore, the provision of Order VIII Rule 1
providing for upper limit of 90 days to file written statement is directory.
Having said so, we wish to make it clear that the order extending time to file
written statement cannot be made in routine. The time can be extended
only in exceptionally hard cases. While extending time, it has to be borne in
mind that the legislature has fixed the upper time limit of 90 days. The
discretion of the Court to extend the time shall not be so frequently and
routinely exercised so as to nullify the period fixed by Order VIII Rule 1."
Court in Kailash v. Nanhku and Ors. (2005 (4) SCC 480) "(iv) the
purpose of providing the time schedule for filing the written statement
under Order VIII Rule 1 CPC is to expedite and not to scuttle the
hearing. The provision spells out a disability on the defendant. It does not
Sridhara babu. N
impose an embargo on the power of the Court to extend the time. Though
the language of the proviso to Rule 1 Order VIII CPC is couched in
negative form, it does not specify any penal consequences flowing from the
non-compliance. The provision being in the domain of the procedural law, it
has to be held directory and not mandatory. The power of the Court to
extend time for filing the written statement beyond the time schedule
provided by Order VIII Rule 1 CPC is not completely taken away. (v)
Though Order VIII Rule 1 CPC is a part of procedural law and hence
directory, keeping in view the need for expeditious trial of civil cases which
persuaded Parliament to enact the provision in its present form, it is held
that ordinarily the time schedule contained in the provision is to be followed
as a rule and departure therefrom would be by way of exception. A prayer
for extension of time made by the defendant shall not be granted just as a
matter of routine and merely for the asking, more so when the period of 90
days has expired. Extension of time may be allowed by way of an
exception, for reasons to be assigned by the defendant and also be placed
on record in writing, howsoever briefly, by the court on its being satisfied.
Extension of time may be allowed if it is needed to be given for
circumstances which are exceptional, occasioned by reasons beyond the
control of the defendant and grave injustice would be occasioned if the time
was not extended. Costs may be imposed and affidavit or documents in
Sridhara babu. N
support of the grounds pleaded by the defendant for extension of time may
be demanded, depending on the facts and circumstances of a given case."
Honourable
Apex
Court
in
C.N.Ramappa
Gowda
v.
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2007 (6) SCC 420. Of course, the provision of Order 8 Rule 1 is not to
be so liberally interpreted so as to allow gross delays and negligence on the
part of the defendant in filing the written statement. The facts of each case
therefore have to be seen as to whether there is gross delay or negligence
so as to disentitle the defendant for extension of time for filing of the
written statement.
WRITTEN
STATEMENT
CAN
BE
ALLOWED
AFTER 90 DAYS
The Apex Court has held that time limit of 90 days for filing written
statement cannot be considered to be so sacrosanct and mandatory that
Court cannot subsequently extend the time limit vide 2005 (6) SCC
344 (Salem Advocate Bar Association vs. Union of India), 2008 (17)
SCC 117 (Sambhaji vs. Gangabai) and 2008 (11) SCC 769 (Zolba
vs. Keshao).
In Salem Advocate Bar Association vs. Union of India 2005 (6) SCC
344 it has been held that the provisions in CPC including the proviso to
Order 8 Rule 1 are not mandatory but directory. The delay can be
condoned and the written statement can be accepted within even after the
expiry of 90 days from the date of service of summons in exceptionally hard
Sridhara babu. N
cases. The Three Judge Bench of the Apex Court in terms observed in
the Salem case that the rules of procedure are made to advance the cause
of justice and not to defeat it. Construction of the rule or procedure which
promotes justice and prevents miscarriage has to be preferred. The rules
of procedure are the handmaid of justice and not its mistress.
In R.N.Jadi & Brothers vs. Subhashchandra [2007(9) Scale 202], while
interpreting Order 8 Rule 1 of the Civil Procedure Code, the Supreme
Court indicated that a legal provision, though couched in a negative
language implying mandatory character, could be declared to be of
directory in nature, keeping in view the entire context, in which the provision
came to be enacted.
Again in Zolba vs. Keshao 2008 (11) SCC 769 the Apex Court in
terms held that in an adversarial system, no party should ordinarily be
denied opportunity of participating in a process of justice dispensation.
Therefore, unless compelled by express and specific language of the
statute, any procedural enactment should not be construed in a manner,
which would leave the Court helpless to meet extraordinary situations in
the ends of justice.
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JUSTICE P
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object is also to ensure that each side is fully alive to the questions that are
likely to be raised or considered so that they may have an opportunity of
placing the relevant evidence appropriate to the issues before the court for
its consideration. The object of issues is to identify from the pleadings the
questions or points required to be decided by the courts so as to enable
parties to let in evidence thereon. When the facts necessary to make out a
particular claim, or to seek a particular relief, are not found in the plaint, the
court cannot focus the attention of the parties, or its own attention on that
claim or relief, by framing an appropriate issue........ Thus it is said that no
amount of evidence, on a plea that is not put forward in the pleadings, can
be looked into to grant any relief. The jurisdiction to grant relief in a civil
suit necessarily depends on the pleadings, prayer, court fee paid, evidence
let in, etc."
In J.K. Iron & Steel Co. Ltd, Kanpur v. The Iron and Steel Mazdoor
Union, Kanpur, AIR 1956 SC 231, this Court observed: "It is not open
to the Tribunals to fly off at a tangent and, disregarding the pleadings, to
reach any conclusions that they think are just and proper."
Order XIV Rule 1 CPC reads: "Issues arise when a material proposition
of fact or law is affirmed by the party and denied by the other." Therefore,
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it is neither desirable nor required for the court to frame an issue not arising
on the pleadings. The Court should not decide a suit on a matter/point on
which no issue has been framed. (Vide: Raja Bommadevara Venkata
Narasimha Naidu & Anr. v. Raja Bommadevara Bhashya Karlu Naidu &
Ors., (1902) 29 Ind. App. 76 (PC); Sita Ram v. Radha Bai & Ors., AIR
1968 SC 535; Gappulal v. Thakurji Shriji Dwarkadheeshji & Anr., AIR
1969 SC 1291; and Biswanath Agarwalla v. Sabitri Bera, (2009) 15
SCC 693).
The object of framing issues is to ascertain/shorten the area of dispute
and pinpoint the points required to be determined by the court. The issues
are framed so that no party at the trial is taken by surprise. It is the issues
fixed and not the pleadings that guide the parties in the matter of adducing
evidence.
In Kashi Nath (Dead) through L.Rs. v. Jaganath, (2003) 8 SCC 740,
this Court held that where the evidence is not in line with the pleadings and
is at variance with it, the said evidence cannot be looked into or relied upon.
While deciding the said case, this Court placed a very heavy reliance on
the judgment of the Privy Council in Siddik Mohd. Shah v. Saran, AIR
1930 PC 57.
There may be an exceptional case wherein the parties proceed to trial fully
knowing the rival case and lead all the evidence not only in support of their
contentions but in refutation thereof by the other side. In such an
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HOW
PLEADING
AMOUNTS
TO
FALSELY
IN
CONTEMPT
THE
AND
COURT
PERJURY
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appellant filed O.A. before the Tribunal on for quashing the Articles of
charge
Original Application, the appellant had made a specific averment that the
charge memo was received by her only on 19.6.2002, as the copy of the
same was furnished to her by the 3rd respondent i.e. the Enquiry Officer.
Therefore, it had been contended by the appellant that she had
approached the Tribunal within limitation. However, taking abundant
caution, she had also filed an application for condonation of delay. The
reply to the said application was filed by the respondents therein, wherein it
was contended that the order dated 30.11.1999 had been issued to the
appellant on 2.12.1999 by Registered Post with AD. The Tribunal
instead of proceeding with the matter on merit or deciding the issue of
limitation, passed an order stating that the appellant had made a false
statement in the O.A. regarding limitation which was intentional and
deliberate. Therefore, prima facie, the Tribunal was of the view that the
appellant had committed criminal contempt and a show cause notice was
issued to the appellant calling upon her "to appear in person before the
Tribunal to answer the said show cause notice on which day the matter
would be listed for hearing. The appellant not only appeared in response
to the said notice personally, but submitted a reply to the show cause
notice contending that she had not made any false statement for the
purpose of securing the order of condonation of delay and in fact the
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charge memo dated 30.11.1999 had been served upon her first time on
19.6.2002. She also made a request to summon certain government
records to substantiate her case. The Tribunal directed the respondent
authorities to produce the documents, i.e. Inward Register, Postal
Acknowledge Due and original letter dated 23.12.1999 and other relevant
documents, if any, which would have bearing on the matter by the next date,
though learned counsel for the respondent authorities did not produce any
of the required documents, but he produced the photocopies of letter
dated 23.12.1999 and the Inward Register. The Tribunal adjourned the
case and passed the impugned order dated holding that the appellant was
guilty of perjury, as well as of criminal contempt of the Tribunal and
imposed the punishment of imprisonment till rising of the court and a fine of
Rs.2,000/-. Being aggrieved, the appellant approached the High Court
by filing a writ petition which was ultimately dismissed, observing that the
High Court had no jurisdiction to entertain the matter placing reliance on
the judgment of this Court in T. Sudhakar Prasad v. Govt. of A.P. &
Ors., (2001) 1 SCC 516, wherein it had been held that against the order
under the Contempt of Court Act, 1971, passed by the Tribunal, the
party aggrieved has to approach Supreme Court. Hence, this appeal.
The learned Tribunal proceeded on the basis that Supreme Court in
Chandra Shashi v. Anil Kumar Verma, (1995) 1 SCC 421, held that
nobody should be permitted to indulge in immoral acts like perjury,
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Code of Civil Procedure, 1908: Or. 22, rr. 4,10A and 11 - Application
for setting aside abatement of second appeal - Delay in filing - `Sufficient
cause' with respect to delay. HELD: Lack of diligence or negligence can
be attributed to an appellant only when he is aware of the death and fails to
take steps to bring the legal representatives on record - In the instant case,
second appeal was admitted in 1993 but hearing of dates were not fixed
periodically - Neither counsel for deceased respondent in High Court nor
her legal representatives reported her death to the High Court - No
notice of death given to appellant - There is no material to contradict claim
of appellant that it was unaware of death of the respondent - Delay
condoned - Abatement set aside - Legal representatives of deceased
respondent permitted to be brought on record
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(i) The words "sufficient cause for not making the application within the
period of limitation" should be understood and applied in a reasonable,
pragmatic, practical and liberal manner, depending upon the facts and
circumstances of the case, and the type of case. The words `sufficient
cause' in section 5 of Limitation Act should receive a liberal construction
so as to advance substantial justice, when the delay is not on account of
any dilatory tactics, want of bonafides, deliberate inaction or negligence on
the part of the appellant.
(ii) In considering the reasons for condonation of delay, the courts are more
liberal with reference to applications for setting aside abatement, than
other cases. While the court will have to keep in view that a valuable right
accrues to the legal representatives of the deceased respondent when the
appeal abates, it will not punish an appellant with foreclosure of the appeal,
for unintended lapses. The courts tend to set aside abatement and decide
the matter on merits, rather than terminate the appeal on the ground of
abatement. (iii) The decisive factor in condonation of delay, is not the
length of delay, but sufficiency of a satisfactory explanation.
(iv) The extent or degree of leniency to be shown by a court depends on
the nature of application and facts and circumstances of the case. For
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If following three conditions exist, the courts will usually condone the delay
and set aside the abatement (even though the period of delay is
considerable and a valuable right might have accrued to the opposite partyLRs of the deceased - on account of the abatement): (i) The respondent
died during the period when the appeal was pending without any hearing
dates being fixed; (ii) Neither the counsel for the deceased respondent nor
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In Ram Nath Sao vs. Gobardhan Sao [2002 (3) SCC 195] this Court
observed thus : "12. Thus it becomes plain that the expression "sufficient
cause" within the meaning of Section 5 of the Act or Order 22 Rule 9 of
the Code or any other similar provision should receive a liberal construction
so as to advance substantial justice when no negligence or inaction or want
of bona fides is imputable to a party. In a particular case whether
explanation furnished would constitute "sufficient cause" or not will be
dependent upon facts of each case. There cannot be a straitjacket formula
for accepting or rejecting explanation furnished for the delay caused in
taking steps. But one thing is clear that the courts should not proceed with
the tendency of finding fault with the cause shown and reject the petition
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In Sital Prasad Saxena (dead) by LRs. v. Union of India & Ors. [1985 (1)
SCC 163], this Court stated : "...once an appeal is pending in the High
Court, the heirs are not expected to keep a constant watch on the
continued existence of parties to the appeal before the High Court which
has a seat far away from where parties in rural areas may be residing. And
in a traditional rural family the father may not have informed his son about
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the litigation in which he was involved and was a party. Let it be recalled
what has been said umpteen times that rules of procedure are designed to
advance justice and should be so interpreted as not to make them penal
statutes for punishing erring parties."
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official business requires its broach and approach from public justice
perspective."
2005
SC
3353,
SALEM
ADVOCATE
BAR
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justice and not its mistress. In the present context, the strict interpretation
would defeat justice.
In construing Order VIII Rule 1, support can also be had from Order VIII
Rule 10 which provides that where any party from whom a written statement
is required under Rule 1 or Rule 9, fails to present the same within the time
permitted or fixed by the Court, the Court shall pronounce judgment
against him, or make such other order in relation to the suit as it thinks fit.
On failure to file written statement under this provision, the Court has
been given the discretion either to pronounce judgment against the
defendant or make such other order in relation to suit as it thinks fit. In the
context of the provision, despite use of the word `shall', the Court has
been given the discretion to pronounce or not to pronounce the judgment
against the defendant even if written statement is not filed and instead pass
such order as it may think fit in relation to the suit. In construing the
provision of Order VIII Rule 1 and Rule 10, the doctrine of harmonious
construction is required to be applied. The effect would be that under
Rule 10 of Order VIII, the Court in its discretion would have power to
allow the defendant to file written statement even after expiry of period of
90 days provided in Order VIII Rule 1. There is no restriction in Order
VIII Rule 10 that after expiry of ninety days, further time cannot be
granted. The Court has wide power to `make such order in relation to the
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suit as it thinks fit'. Clearly, therefore, the provision of Order VIII Rule 1
providing for upper limit of 90 days to file written statement is directory.
However, it is made clear that the order extending time to file the written
statement cannot be made in routine. The time can be extended only in
exceptionally hard cases. While extending time, it has to be borne in mind
that the legislature has fixed the upper time limit of 90 days. The discretion
of the Court to extend the time shall not be so frequently and routinely
exercised so as to nullify the period fixed by Order VIII Rule 1.
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statement on record though filed beyond the time as provided for. Further,
the nature of the provision contained in Order 8 Rule 1 is procedural. It is
not a part of the substantive law. Substituted Order 8 Rule 1 intends to
curb the mischief of unscrupulous defendants adopting dilatory tactics,
delaying the disposal of cases, causing inconvenience to the plaintiffs and
the petitioners approaching the court for quick relief and also the serious
inconvenience of the court faced with frequent prayers for adjournments.
The object is to expedite the hearing and not to scuttle the same. While
justice delayed may amount to justice denied, justice hurried may in some
cases amount to justice buried.
All the rules of procedure are the handmaids of justice. The language
employed by the draftsman of processual law may be liberal or stringent,
but the fact remains that the object of prescribing procedure is to advance
the cause of justice. In an adversarial system, no party should ordinarily be
denied the opportunity of participating in the process of justice
dispensation. Unless compelled by express and specific language of the
statute, the provisions of CPC or any other procedural enactment ought
not to be construed in a manner which would leave the court helpless to
meet extraordinary situations in the ends of justice. The mortality of justice
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Though the power of the Court under the proviso appended to Rule 1 of
Order 8 CPC is circumscribed by the words "shall not be later than ninety
days" but the consequences flowing from non-extension of time are not
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In the instance case, the trial court proceeded on the erroneous premises
that there was no scope to accept the written statement after 90 days. The
High Court by the impugned order held that though it had power, no case
was made out to accept the prayer. The grounds indicated by the
appellants seeking acceptance of the written statement filed belatedly,
cannot be considered to be trivial or without substance. In the case of this
nature where close relatives are litigants a liberal approach is called for.
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object of the statute in making out the provision is the determining factor.
The purpose for which the provision has been made and its nature, the
intention of the legislature in making the provision, the serious general
inconvenience or injustice to persons resulting from whether the provision is
read one way or the other, the relation of the particular provision to other
provisions dealing with the same subject and other considerations which
may arise on the facts of a particular case including the language of the
provision, have all to be taken into account in arriving at the conclusion
whether a particular provision is mandatory or directory. 9 In Sangram
Singh v. Election Tribunal, Kotah [AIR 1955 SC 425] considering the
provisions of the Code dealing with the trial of suits, it was opined that:
(SCR pp. 8-9) `Now a code of procedure must be regarded as such. It is
procedure, something designed to facilitate justice and further its ends: not
a penal enactment for punishment and penalties; not a thing designed to
trip people up. Too technical a construction of sections that leaves no
room for reasonable elasticity of interpretation should therefore be
guarded against (provided always that justice is done to both sides) lest the
very means designed for the furtherance of justice be used to frustrate it.
Next, there must be ever present to the mind the fact that our laws of
procedure are grounded on a principle of natural justice which requires that
men should not be condemned unheard, that decisions should not be
reached behind their backs, that proceedings that affect their lives and
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property should not continue in their absence and that they should not be
precluded from participating in them. Of course, there must be exceptions
and where they are clearly defined they must be given effect to. But taken
by and large, and subject to that proviso, our laws of procedure should be
construed, wherever that is reasonably possible, in the light of that
principle.'
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Ohammod Gazi v. State of M.P. and others (2000(4) SCC 342) and
Shaikh Salim Haji Abdul Khayumsab v. Kumar and Ors. (2006 (1)
SCC 46).
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WHEN
THERE
IS
NEGLIGENCE
IN
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be given for total lethargy or utter negligence on the part of the officers of
the State and / or its agencies / instrumentalities and the applications
filed by them for condonation of delay cannot be allowed as a matter of
course by accepting the plea that dismissal of the matter on the ground of
bar of limitation will cause injury to the public interest."
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that substantive rights of the parties are not defeated merely because of
delay.
QUOTED CITATIONS
In Ramlal v. Rewa Coalfields Ltd. AIR 1962 SC 361, this Court while
interpreting Section 5 of the Limitation Act, laid down the following
proposition: In construing Section 5 (of the Limitation Act), it is relevant
to bear in mind two important considerations. The first consideration is
that the expiration of the period of limitation prescribed for making 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 prescribed has expired, the decree-holder has obtained a benefit
under the law of limitation to treat the decree as beyond challenge, and this
legal right which has accrued to the decree- holder 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 discretion
has been deliberately conferred on the court in order that judicial power
and discretion in that behalf should be exercised to advance substantial
justice.
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remedy promptly. The idea is that every legal remedy must be kept alive for
a legislatively fixed period of time. It must be remembered that in every case
of delay, there can be some lapse on the part of the litigant concerned.
That alone is not enough to turn down his plea and to shut the door
against him. If the explanation does not smack of mala fides or it is not put
forth as part of a dilatory strategy, the court must show utmost
consideration to the suitor. But when there is reasonable ground to think
that the delay was occasioned by the party deliberately to gain time, then
the court should lean against acceptance of the explanation. While
condoning the delay, the court should not forget the opposite party
altogether. It must be borne in mind that he is a loser and he too would have
incurred quite large litigation expenses. It would be a salutary guideline that
when courts condone the delay due to laches on the part of the applicant,
the court shall compensate the opposite party for his loss.
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be informed with the spirit and philosophy of the provision in the course of
the interpretation of the expression of sufficient cause. Merit is preferred
to scuttle a decision on merits in turning down the case on technicalities of
delay in presenting the appeal.
of the Court. Section 5 of the Limitation Act does not say that such
discretion can be exercised only if the delay is within a certain limit. Length
of delay is no matter, acceptability of the explanation is the only criterion.
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Ram Nath Sao @ Ram Nath Sahu & Ors. Vs. Gobardhan Sao & Ors.,
reported in AIR 2002 SC 1201 and referring to the observations in Para
No.13, it was emphasized that there can be some lapse on the part of the
litigant concerned. That alone is not enough to turn down his plea for
condonation of delay.
Balwant Singh (Dead) Vs. Jagdish Singh & Ors., reported in AIR 2010
SC 3043 "We may state that even if the term `sufficient cause' has to
receive liberal construction, it must squarely fall within the concept of
reasonable time and proper conduct of the concerned party. The purpose
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Lanka Venkateswarlu (D) by L.Rs. Vs. State of A.P. & Ors., reported in
AIR 2011 SC 1199 "Whilst considering applications for condonation of
delay under S.5 of the Limitation Act, the Court do not enjoy unlimited
and unbridled discretionary powers. All discretionary powers, especially
judicial powers, have to be exercised within reasonable bounds, known to
the law. The discretion has to be exercised in any systematic manner
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in
the
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link http://judgmenthck.kar.nic.in/judgments/bitstream/123456789/493
041/1/RFA1125-10-10-12-2010.pdf Honble court held in specific
words regarding delay condonation in these lines in para 6 6. Indeed we
are unable to accept this plea of the defendant-appellant that he was
unwell. Obviously, if the defendant-appellant was suffering from diabetes
as well as hyper tension and that restricted the mobility of his right
shoulder, certainly could not have appeared before the Sub-Registrar and
executed the sale deed on 27.2.2010 and further could not have executed
the vakalath in favour of the counsel when he entered appearance in the
final decree proceedings and also negotiated the sale. Obviously, if the
appellant was suffering from all these ailments right from the date of
judgment till the filing of the appeal, he could not have visited the SubRegistrar Office and entered appearance in final decree proceedings. It is
no doubt true that sufficient cause under Section 5 of the Limitation Act
is required to be considered liberally, but however, not so liberally so as to
make Section 5 redundant. Indeed the courts would come to the aid of
litigant who is vigilant and not indolent. It is no doubt true that the
appellant-defendant has made available certain medical records, but
however, they do not disclose that at any point of time, he required
hospitalisation or his mobility was restricted. Hence, we are of the view that
the explanation offered does not satisfy the requirement of Section 5 of
the Limitation Act Indeed the Apex Court in the case
of
P.K.
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THE
OPINION
OF
TRIAL
COURT
AS
TO
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the court. The opinion of the trial Judge allowing a prayer for
setting aside abatement and his finding on the question of
availability of "sufficient cause" within the meaning of Sub-rule
(1) of Rule (9) of Order 22 and of Section 5 of the Indian
Limitation Act 1963, deserves to be given weight, and once
arrived at would not normally be interfered with by superior
jurisdiction."
Apex Court in Ram Nath Sao @ Ram Nath Sahu and Ors.
Vs. Gobardhan Sao and Ors (2002) 3 SCC 195. Held in
para 12 which reads as under : "12........ However, by taking a
pedantic and hyper technical view of the matter the explanation
furnished should not be rejected when stakes are high and/or
arguable points of facts and law are involved in the case, causing
enormous loss and irreparable injury to the party against whom
the list terminates either by default or inaction and defeating
valuable right of such a party to have the decision on merit.
While considering the matter, courts have to strike a balance
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vs.
Gujarat
Industrial
Development
Corporation
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Baburao
Patil, (2001)
SCC
106.
..........................."
DELAY
CONDONATION
RESTATED
AND
PRINCIPLES
COLLECTED
BY
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FURTHER GUIDELINES
DELAY NOT PROPERLY EXPLAINED WITH COGENT REASONS LIABLE TO BE DISMISSED 2012
SC
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Office of the Chief Post Master General and Ors. v. Living Media India
Ltd. & Anr., reported at AIR 2012 Supreme Court 1506, more
particularly para 13, which reads as under: "13. In our view, it is the right
time to inform all the Government bodies, their agencies and
instrumentalities that unless they have reasonable and acceptable
explanation for the delay and there was bona fide effort, there is no need
to accept the usual explanation that the file was kept pending for several
months/years due to considerable degree of procedural red-tape in the
process. The Government departments are under a special obligation to
ensure that they perform their duties with diligence and commitment.
Condonation of delay is an exception and should not be used as an
anticipated benefit for Government departments. The law shelters
everyone under the same light and should not be swirled for the benefit of a
few. Considering the fact that there was no proper explanation offered by
the Department for the delay except mentioning of various dates,
according to us, the Department has miserably failed to give any
acceptable and cogent reasons sufficient to condone such a huge delay.
Accordingly, the appeals are liable to be dismissed on the ground of
delay."
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ALL
DISCRETIONARY
POWERS,
ESPECIALLY
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THE
CASES,
WHEN
THE
DELAY
IS
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