1. Appeal against an order refusing to condone delay in filing an appeal after a writ petition was not entertained. (Para 2 , 3 )
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2022 Supreme(SC) 1164
SUPREME COURT OF INDIA
SANJIV KHANNA, J.K. MAHESHWARI, JJ.
M/s Laxmi Srinivasa R And P Boiled Rice Mill – Appellant
Versus
The State Of Andhra Pradesh & Anr. - Respondents
Civil Appeal No. of 2022 (@SLP(C) No.11225 of 2022)
Decided on : 14-11-2022.
Advocates:
Advocate Appeared:
For the Appellant : Mr. Vidya K. Sagar, Mr. Ajit Kumar Jha, Mr. K. S. Rana, AOR
For the Respondent: Mr. Mahfooz A. Nazki, Mr. Polanki Gowtham, Mr. Shaik Mohamad Haneef, Mr. T. Vijaya Bhaskar Reddy, Mr. K.V.Girish Chowdary, Ms. Rajeswari Mukherjee, Ms. Niti Richhariya, Adv.
Advocate Appeared:
For the Appellant : Mr. Vidya K. Sagar, Mr. Ajit Kumar Jha, Mr. K. S. Rana, AOR
For the Respondent: Mr. Mahfooz A. Nazki, Mr. Polanki Gowtham, Mr. Shaik Mohamad Haneef, Mr. T. Vijaya Bhaskar Reddy, Mr. K.V.Girish Chowdary, Ms. Rajeswari Mukherjee, Ms. Niti Richhariya, Adv.
The Court held that time spent pursuing a writ petition in good faith, which is not entertained, can be excluded under Section 14 of the Limitation Act, 1963. Exclusion of time is distinct from condonation of delay and the excluded period cannot be counted when computing condonable delay.
Headnote:
Limitation Act, 1963 -- S. 14 -- exclusion of time -- exclusion of time is different, and cannot be equated with condonation of delay
-- period once excluded, cannot be counted for purpose of computing period for which delay can be condoned -- for exclusion of time u/s. 14, conditions stipulated in S. 14 have to be satisfied. (2008) 7 SCC 169 and (2021) 10 SCC 401 referred to. [Para 3
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2. Whether the period spent pursuing a writ petition should be excluded from the computation of delay for filing an appeal. (Para 2 , 3 )
3. The writ proceedings were maintainable and filed bona fide; therefore, the period from filing to dismissal must be excluded from the computation of delay. (Para 4 )
4. Exclusion of time under Section 14, Limitation Act, 1963, is distinct from condonation of delay; excluded time cannot be counted when computing the condonable period. (Para 3 )
5. Appeal allowed — delay condoned — direction to the Appellate Authority to examine the appeal on merits. (Para 4 , 5 )
6. What is the distinction between exclusion of time and condonation of delay?
Exclusion of time under Section 14 of the Limitation Act, 1963, is different from condonation of delay. A period once excluded cannot be counted for the purpose of computing the period for which delay can be condoned. (Para 3 )
7. When can time spent in a writ petition be excluded under Section 14 of the Limitation Act?
Time spent in writ proceedings can be excluded if the conditions stipulated in Section 14 of the Limitation Act, 1963, are satisfied, including the maintainability of the proceedings and the bona fides of the party. (Para 3 , 4 )
8. Does the non-entertainment of a writ petition preclude the exclusion of time under the Limitation Act?
No, if the writ proceedings were maintainable and filed bona fide, the period from the date of filing to the date they were not entertained should be excluded. (Para 4 )
ORDER :
1. Leave granted.
2. The impugned order passed by the High Court affirming the order dated 27.04.2018 passed by Appellate Deputy Commissioner (CT) (FAC), Vijayawada, holding that the delay is beyond condonable period is unsustainable in law.
3. It is an accepted position that the appellant had filed a writ petition before the High Court on 24.02.2018, which was not entertained vide the order dated 07.03.2018 on the ground that the appellant should approach the Appellate Authority. The appellant is entitled to ask for exclusion of the said period in terms of Section 14 of the Limitation Act, 1963. Exclusion of time is different, and cannot be equated with condonation of delay. The period once excluded, cannot be counted for the purpose of computing the period for which delay can be condoned. Of course for exclusion of time under Section 14 of the Limitation Act, 1963, the conditions stipulated in Section 14 have to be satisfied. 1[See Consolidated Engineering Enterprises Vs. Principal Secretary, Irrigation Department and Ors. , (2008) 7 SCC 169 and Kalpraj Dharamshi and Anr. Vs. Kotak Investment Advisors Limited and Anr.,]
4. In the facts of the present case, we find that the period from the date of filing of the writ petition on 24.02.2018 and the date on which it was dismissed as not entertained viz. 07.03.2018, should have been excluded. The writ proceedings were maintainable, but not entertained. Bona fides of the appellant in filing the writ petition are not challenged. Further, immediately after the dismissal of the writ petition, the appellant did file an appeal before the Appellate Authority. On exclusion of the aforesaid period, the appeal preferred by the appellant would be within the condonable period. Accordingly, we direct that the application for condonation of delay filed by the appellant would be treated as allowed. The delay is directed to be condoned.
5. Recording the aforesaid, the appeal is allowed with the direction that the Appellant Authority would examine the appeal on merits.
6. We clarify that have not expressed any opinion on the merit of the case.
7. Pending application(s), if any, shall stand disposed of.
