R.B.Ramlingam vs R.B.Bhvaneswari

R.B. RAMLINGAM ..PETITIONER

VERSUS

R.B. BHVANESWARI ..RESPONDENT WITH IA1(C/DELAY IN FILING SLP )

ORDER

The present special leave petition has been filed by the petitioner (original

plaintiff) against the judgment and final Order dated 18.9.2006 passed by the Madras

High Court in CRP(NPD) No. 896/06. Subsequent to the passing of the impugned Order

dated 18.9.2006 in CRP No. 896/06, the petitioner herein filed Review Application No.

85/07. This application was filed in time prescribed for filing the Review Petition under

the Limitation Act, 1963. However, vide Order dated 27.3.2008 the said Review

Application No. 85/07 stood rejected. This special leave petition is filed against the main

judgment and final Order dated 18.9.2006 in CRP No. 896/06 on 7.7.2008. In the process,

there is a delay of 568 days in filing the special leave petition against the main judgment

and order dated 18.9.2006. The delay, therefore, in filing this special leave

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petition was on account of pendency of Review Application No. 85/07 before the Madras High Court. Consequently, vide I.A. No.

1 of 2008, the petitioner herein prays for condonation of delay of 568 days in filing this

SLP against the main judgment and final Order dated 18.9.2006.

When this special leave petition came for hearing before the earlier Division

Bench on 25.11.2008, a query was raised by the Court as to whether prosecution of

Review Proceedings would be sufficient cause for purposes of Section 5 of the Limitation

Act, 1963. This query was raised by the Court because in numerous matters, this Court

finds enormous delay in the filing of special leave petitions on the ground that the

petitioner has been prosecuting review proceedings on which count there was delay in

filing the special leave petition. There is one more reason why this Court raised the above

query. There is divergence of opinion among Courts whether the prosecution of Review

Proceedings would be sufficient cause at all for purposes of Section 5 of the Limitation

Act, 1963. For this purpose we requested Shri Shyam Diwan, learned senior counsel, to

assist us in answering the query raised hereinabove.

On the question as to whether the prosecution of a Review Application would

be a sufficient cause for not filing the special leave petition in time for the purposes of

Section 5 of the Limitation Act, 1963 we are of the view that there is

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a dichotomy between the appellate jurisdiction of this Court and discretionary

jurisdiction under Article 136 of the Constitution (See: Kunhayammed and Ors. v. State

of Kerala and Anr. reported in (2000) 6 SCC 359). Reading the said judgment, it also

becomes clear that filing of Review Petition is no impediment to the filing of the special

leave petition. Large number of judgments were cited before us by learned counsel. It is not necessary at this stage to discuss each and every judgment cited before us for the

simple reason that Section 5 of the Limitation Act, 1963 does not lay down any standard

or objective test. The test of "sufficient cause" is purely an individualistic test. It is not an

objective test. Therefore, no two cases can be treated alike. The statute of Limitation has

left the concept of "sufficient cause" delightfully undefined, thereby leaving to the Court

a well-intentioned discretion to decide the individual cases whether circumstances exist

establishing sufficient cause. There are no categories of sufficient cause. The categories of

sufficient cause are never exhausted. Each case spells out a unique experience to be dealt

with by the Court as such.

For the aforestated reasons, we hold that in each and every case the Court has

to examine whether delay in filing the special leave petition stands properly explained.

This is the

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basic test which needs to be applied. The true guide is whether the petitioner has acted

with reasonable diligence in the prosecution of his appeal/petition. In exercise of

discretion under Article 136 to decide whether delay should be condoned or not, this

Court is not bound by considerations applicable to an Appellate Court but nonetheless

general principles which would weigh with the Appellate Court in determining sufficient

cause can be the guiding factor/guideline. Therefore, it cannot be stated as a proposition

per se that the prosecution of Review Proceedings would not be a sufficient cause at all

for purposes of Section 5 of the Limitation Act, 1963.

In the present case, as stated above, what is challenged is the main judgment

and Order dated 18.9.2006. As stated above, I.A. No. 1 of 2008 is for condonation of

delay in filing the special leave petition. It is important to note that the Review

Application was filed within time in April, 2007, therefore, it was duly numbered. The

High Court re-examined the entire case after issuing notice to the respondent herein

(defendant).

In view of what is stated above, we now direct the office to list the present

matter for admission along with I.A.

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No. 1 of 2008 on 16.2.2009.

We hereby record our appreciation for the assistance rendered by learned

Amicus Curiae, Shri Shyam Diwan.

..........................J. [S.H. KAPADIA]

NEW DELHI; .........................J. JANUARY 13. 2009. [H.L.DATTU]