IN THE HIGH COURT OF JHARKHAND AT RANCHI

M.A. No. 16 of 2021

1. Jambi Haiburu

2. Bahta Haiburu @ Lal Singh Haiburu

3. Sunay Haiburu

…. …. Appellant(s).

Versus

1. United India Insurance Co. Ltd.

2. Mangal Topno

3. Ramdhan Ram

…. …. Respondent(s)

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CORAM : HON'BLE MR. JUSTICE ANANDA SEN.

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For the Appellant(S)

:Mr. Anjani Kumar, Advocate

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3/23.8.2022

This appeal is barred by limitation. The delay is of 1575 days.

2.

Today when the matter has been placed before me, it has been admitted by the parties

that no application under Section 5 of the Limitation Act has been filed praying to condone

the delay.

3.

Section 5 of the limitation Act provides for condonation of delay which occurs during

filing of an appeal or application. Section 5 of the Limitation Act reads as follows:-

“5 Extension of prescribed period in certain cases:- Any appeal

or any application, other than an application under any of the

provisions of Order XXI 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.”

4.

From the aforesaid provision of law it is clear that the Court cannot extend the period

of limitation, by granting time to the parties to file an application under Section 5 of the

Limitation Act. Giving time to the appellants to file an application under Section 5 of the

Limitation Act will amount to extending time of limitation. A memo of appeal, which is time

barred, should be accompanied with an application under Section 5 of the Limitation Act.

5.

Admittedly, no petition, praying for condoning delay, has been filed. This means as on

date the case is barred by limitation.

6.

In this respect, it is necessary to quote Section 3 Sub-Section (1) of the Limitation Act,

which reads as follows:-

“3. Bar of limitation (1) Subject to the provisions contained in

sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and

application made after the prescribed period shall be dismissed,

although limitation has not been set up as a defence.”

-2-

7.

From perusal of the aforesaid provision of law, it is clear that every suit instituted,

appeal preferred, and application made after prescribed period, shall be dismissed, even though

limitation has not been set up as a defence. Dismissal of a time barred appeal in absence of any

petition under Section 5 of the Limitation Act, is the rule and not the exception.

8.

Since, admittedly, this appeal is barred by limitation and there is no application making

a prayer to condone the delay by showing sufficient cause, by natural consequences this appeal

must be treated to be barred by limitation. The period of limitation can be extended if only

Section 5 of the Limitation Act is invoked. As per Section 5, sufficient cause has to be shown

for not preferring the appeal within time. These aspects are lacking in this case.

9.

The judgment impugned in this appeal is dated 2.7.2016 and this appeal has been filed

on 22.01.2021. The office pointed out the defect that this appeal is barred by limitation, but

inspite of the fact that the file was placed before the Lawazima bench and time was granted, no

application under Section 5 of the Limitation Act was filed.

10.

This Hon’ble Court in S.A No. 130 of 2017 has passed a similar order considering the

similar facts and thereafter dismissed the Second appeal. The aforesaid order was challenged

by the aggrieved party in Special Leave to Appeal(C) No.1025 of 2022, which was also

dismissed on 7.2.2022 by the Hon’ble Supreme Court.

11.

The position of law and the facts are also the same in this case, as there is no

application filed under Section 5 of the Limitation Act. Considering the bar under Section 3 of

the Limitation Act, this Cour