Courts Have Discretion To Condone Delay Even Without Formal Application Under Section 5 Of Limitation Act: J&K High Court

In upholding a trial court order of condoning delay without a formal application to that effect Justice M A Chowdhary observed,

“Although, it is the general practice to make a formal application under Section 5 of the Limitation Act 1963, in order to enable the Court or Tribunal to weigh the sufficiency of the cause for the inability of the appellant/applicant to approach the Court/Tribunal within the time prescribed by limitation, there is no bar to exercise by the Court/Tribunal, of its discretion, to condone delay in the absence of a formal application”.

Background and Proceedings:

The case involved a suit filed by Jammu & Kashmir Bank Limited against Sheikh Mohammad Sadiq. During the pendency of the suit, Sadiq passed away on February 1, 2002. While the Bank informed the court about his death on July 18, 2002, a formal application to bring his legal heirs on record was filed only on the next hearing date, September 17, 2002.

The trial court allowed the Bank's application despite the delay of 16 days. This decision by the trial court was challenged by Sadiq's legal heirs, who argued that the suit had abated due to the Bank's failure to bring them on record within six months of Sadiq's death.

The petitioners argued that the application to bring the legal heirs on record was time-barred and should not have been entertained without a formal application for condonation of delay. On the other hand, the respondents contended that the delay was adequately explained and should be overlooked in the interest of justice.

Court Observations:

After hearing the rival contentions Justice Chowdhary emphasized the need for a balanced approach when dealing with applications for substitution of legal heirs or setting aside abatement of proceedings.

While reiterating the importance of assessing the sufficiency of explanations for delay liberally and expansively, to ensure justice prevails the court recorded,

“While dealing with the applications under Order XXII Rule 3 of CPC for substitution of legal heirs or under Order XXII Rule 9 of CPC for setting aside abatement of proceedings, the court is supposed to strike a balance. The delay, if any, has to be satisfactorily explained. In assessing the sufficiency of the explanation as cause for the delay, however, the court has to be liberal and expansive in its approach, and to proceed ex debito justitiae”.

It added,

“The fact that, by abatement of the proceedings, a legal right has enured in favour of the opposite party, can be a delimiting factor only to a restricted extent, and no more. Therefore, the words “sufficient cause” in Section 5 of the Limitation Act, should receive a liberal construction so as to advance substantial justice”.

Noting that the plaintiff had acted promptly upon learning of defendant No. 1's demise, the bench upheld the trial court's order despite the absence of a formal application for condonation of delay.

“Thus, the second contention of learned counsel for the petitioners with regard to arbitrariness of the trial court in allowing the application for brining on record LRs of the deceased defendant no.1, without a formal application for condonation of delay, is misconceived and is overruled”, the bench concluded while dismissing the plea.

Case Title: Sheikh Mohammad Sadiq (deceased) Through his Legal Representatives Vs Jammu & Kashmir Bank

Citation; 2024 LiveLaw (JKL) 115

Ms. Rehana Qayoom, Advocate appeared for petitioners, Mr. N.A.Dandroo, Advocate represented the respondents

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