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IN THE HIGH COURT OF KERALA AT ERNAKULAM
Anil K.Narendran, Harisankar V. Menon, JJ.
Swaminathan, S/O. Kunjumani – Petitioner
Versus
State Of Kerala, Represented By The Principal Secretary, (Forest & Wild Life) And Ors. – Respondents
MFA (FOREST) NO. 3 OF 2024
Decided On : 27-06-2024
LIMITATION - CONDONATION OF DELAY - Limitation Act, 1963 - Section 5 - The court discussed the application of the Limitation Act, particularly Section 5, which allows for the condonation of delay in filing appeals. The court highlighted the Supreme Court's orders regarding the extension and exclusion of limitation periods due to the COVID-19 pandemic, emphasizing that the period from 15.03.2020 to 28.02.2022 is excluded from the limitation calculation. This interpretation influenced the court's decision to accept the appellant's calculation of delay as correct.
Fact of the Case:
The appellant filed an appeal against an order from the Forest Tribunal, but the appeal was filed 1603 days late. The appellant sought to condone this delay under Section 5 of the Limitation Act, claiming that the delay calculation was correct, particularly due to the exclusion of days during the COVID-19 pandemic.
Finding of the Court:
The court found that the appellant's calculation of the delay was accurate, overruling the Registry's notice of defect regarding the delay period. The court confirmed that the period of limitation was extended and certain days were excluded due to the pandemic, as per the Supreme Court's directives.
Issues: Whether the delay in filing the appeal could be condoned under Section 5 of the Limitation Act, considering the impact of the COVID-19 pandemic on the limitation period.
Ratio Decidendi: The court relied on the Supreme Court's judgments regarding the extension and exclusion of limitation periods during the pandemic, clarifying the distinction between 'extension' and 'exclusion' of time under the Limitation Act. It concluded that the appellant's delay calculation was correct based on these principles.
Final Decision: The court accepted the appellant's application for condonation of delay, overruling the Registry's defect notice, and directed the Registry to number the appeal.
ORDER :
Harisankar V. Menon, J.
The appellant has presented this appeal against the order dated 31.10.2016 passed by the Forest Tribunal, Kozhikode in O.A.No.11 of 2010.
2. Since the appeal was filed belatedly, the appellant filed an application under Section 5 of the Limitation Act to condone the delay in filing the appeal. In this application, the prayer is for condonation of a delay of 1603 days in filing the appeal.
3. The Registry has noted a defect in the filing of this I.A., pointing out that the delay ought to be shown as 2315 days as against 1603 days shown in the application for condonation of delay. The registry noticed that the period of 715 days covered during Covid-19 is excluded in calculating the days for which condonation is sought. The learned counsel for the appellant has pointed out that the above calculation is correct on account of which the Registry has directed the matter to be placed before the court.
4. It is in these circumstances that, this defective appeal is placed before us.
5. We have heard the learned counsel appearing for the appellant and the learned Special Government Pleader (Forest), representing the respondents.
6. The counsel for the appellant pointed out that the calculation of the delay as per the application under Section 5 is correct. She relied on the judgment rendered by the Apex Court in Cognizance for Extension of Limitation, in re [2020 (3) KLT 449], Cognizance for Extension of Limitation, in re [(2022) 3 SCC 117], Prakash Corporates v. Dee Vee Projects Limited [(2022) 5 SCC 112] and that of this Court in Shafeer v. Rahul [2023 (1) KLT 366].
7. The judgment of the Apex Court in Cognizance for Extension of Limitation, in re [2020 (3) KLT 449], the first of the orders, was issued by the Apex Court concerning the extension of the period of limitation, consequent to the spread of Covid-19 virus. By this order, the Apex Court ordered that the period of limitation in all proceedings, irrespective of the limitation prescribed under the general laws or special laws whether condoned or not shall stand extended from 15.03.2020 till further orders to be passed by the court. So, it is to be noticed that the above orders were issued exercising the power under Article 142 read with Article 141 of the Constitution of India.
8. The judgment in Cognizance for Extension of Limitation, in re [(2022) 3 SCC 117] was issued by the Apex Court in the wake of the second surge in Covid-19 cases. The Apex Court issued the following directions:-
5.2. Consequently, the balance period of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01.03.2022.
5.3. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply.
5.4. It is further clarified that the period from 15.03.2020 till 28.02.2022 shall also stand excluded in computing the periods prescribed under Sections 23(4) and 29-A of the Arbitration and Conciliation Act, 1996, Section 12-A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.”
9. In the meantime, the Apex Court issued another order in Sagufa Ahmed
The court established that the period from 15.03.2020 to 28.02.2022 is excluded from the limitation calculation due to the COVID-19 pandemic, allowing for the condonation of delay in filing appeals u....
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