An explanation for delay in filing an appeal or application under Section 5 of the Limitation Act must cover the entire period, including the period prescribed by limitation, in order to link the cause of delay during the limitation period with the subsequent delay.

Altamas Kabir, Alok Kumar Basu

( 1 ) THE Court: Certain submissions made on behalf of the applicant when the application for condonation of delay was taken up for consideration have prompted us to take a closer look at the provisions of section 5 of the Limitation Act and its application to the application and appeal filed by the applicant.

( 2 ) IN order to appreciate the submissions made, the provisions of section 5 of the aforesaid Act are reproduced hereinbelow:extension of prescribed period in certain cases: Any appeal or any application, other than an application under any of the provisions of Order 21 of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.

( 3 ) MR. Dipak Deb, learned counsel, appearing in support of the application, submitted before us that in making an application under section 5 of the Limitation Act a party was not required to explain the cause of delay within the period prescribed by limitation and that it had consistently been held by the Courts, and in particular the Hon'ble Supreme Court, that such explanation was required to be given only in respect of the last day on which the appeal was required to be filed and thereafter. According to Mr. Deb, since the law of limitation allows a litigant to file an application or an appeal within a particular period, no explanation is required to be given for the period comprising such period and that having regard to the wording of section 5 of the aforesaid Act the cause of delay only for the period after the prescribed period of limitation was required to be explained.

( 4 ) IN support of his said submission Mr. Deb firstly referred to and relied on a decision of this Court in the case of Karali Charan Sarma v. Apurba Krishna Bajpayi and Ors, reported in AIR 1931 Calcutta 298, which was the decision of a learned Third Judge on a difference between the two Judges hearing the matter.

( 5 ) GRAHAM, J. [as His Lordship then was] was of the view that the words of the section required cause to be shown not for any particular period but for the entire period and if no explanation whatever was forthcoming why the appeal was not filed during the major portion of the period of limitation, an explanation designed merely to explain why it was not filed on the last day before it became time barred, would be insufficient.

( 6 ) MITTER, J. , the learned second Judge, took a different view and observed that in the circumstances of the case the antecedent inaction or negligence of the appellant should not at all be taken into account. His Lordship went on to observe that the law allowed the appellant 90 days' time to file the appeal and if he filed the appeal on the 91st day, he was only required to explain how the delay of one day should be accounted for.

( 7 ) IN view of such difference between the two learned Judges the question was referred to Suhrawardy, J. [as His Lordship then was]. The learned third Judge agreed with the view expressed by Mitter, J. and observed as follows:the question is what is the meaning of the words 'within such period'. To my mind it means 'within the period which ends with the last day of the prescribed period' that is to say before the expiration of the last day for limitation. If the legislature intended that the defaulting party should satisfy the Court that he was unable for valid reasons to present the appeal during the whole of the 90 days one would expect it to have used the words during such period instead of 'within such period' or some other opposite expression.

( 8 ) HIS Lordship also observed that one could not insist that a party must file his appeal before the last day for filing it and that there must be some reason for the legislature to have fixed various periods of limitation for various reliefs sought from Court and these periods ha

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