D.S. Mathur, J.
1. Section 5 of the Limitation Act permits the admission of an appeal presented after the expiry of the prescribed period of limitation if the appellant satisfied the Court that he had sufficient cause for not preferring the appeal within the period of limitation. One of the questions on which, I may add, the High Courts have not expressed the same opinion is, whether the appellant should merely explain the delay subsequent to the last date of the period of limitation or should also indicate that during the preceding period he had not been guilty of gross negligence, inaction or lack of bona fides.
One view is that a party who had been grossly negligent or was guilty of inaction till about the end of the period of limitation, or did not originally have the intention to prefer an appeal but thought of appealing against the decree at the end of the period of limitation, is as much entitled to the benefit of Section 5, i.e., to the condonation of delay in the presentation of the appeal, as a party who was diligent from the beginning, provided that he can satisfy the Court that he could not prefer the appeal within time for reasons beyond his control. In other wards, antecedent gross negligence, inaction or lack of bona fides are not the matters to be taken into consideration when the Court is satisfied that due to illness or otherwise the appellant could not present the appeal within time, though he could otherwise present the appeal within time.
The other view is that though it is not necessary for the appellant to explain his antecedent conduct in the same manner as he must explain every day's delay since after the expiry of the limitation, yet if he was guilty of negligence, inaction or lack of bona fides, no leniency can be shown to him and the delay in the presentation of appeal cannot be condoned under Section 5. In other words, if the delay subsequent to the expiry of the limitation is suitably explained, he must also satisfy the Court, directly or by implication, that he was not guilty of negligence, inaction or lack of bona fides, that is, to explain why he did not take prompt steps for the presentation of the appeal.
2. In view of the observations of the Supreme Court in Dinabandhu Sahu v. Jadumoni Mangaraj, AIR 1954 SC 411, wherein the Full Bench decision in Krishna v. Chathappan, ILR 13 Mad 269 had been quoted with approval, the law on the point can be presumed to be beyond controversy. Their Lordships had made the observation while considering the scope of Section 5 of the Limitation Act in an election matter in which much wider and unrestricted power had been given to the Election Commissioner to condone the delay in the filing of theelection petition. The relevant observations are as below :
'As was observed in the Full Bench decision in ILR 13 Mad 269 in a passage which has become classic, the words 'sufficient cause' should receive a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of 'bona fides' is imputable to the appellant.
3. It will, .however, be proper to make a reference to a few reported cases of this Court and also of other High Courts which had been brought to my notice. In Ahmad Husain v. Muhammad Fasih Ullah, AIR 1923 All 455 the delay in the presentation of the appeal was not condoned, where it was found that the appellant applied for the copy of the judgment and decree only three days before the expiry of the period of limitation.
The case of Deo Inder Singh v. Khushi Ram, AIR 1923 All 536 cannot be of much help as for moving an application for leave to appeal to His Majesty in Council it was not necessary to apply for a copy of the order of the High Court. The facts of the case as reported do not also indicate that an application had in fact been made for copy. Further, it is not clear from the reported case on which date the applicant was intending to come to Allahabad for the purpose of filing the application. It can, therefore, be that the applicant was intending to leave for Allahabad many days before the expiry of the period of limitation, but he suddenly felt ill and was confined to bed.
4. The view taken in Gauri Shankar v. Kashi Nath, AIR 1934 All 367 cannot be said to be against the law as laid down in AIR 1923 All 455, as in that case the application for copy of the order of the Bench of this Court was made on the day the judgment was delivered. Having obtained the copy of judgment promptly, the applicant could think of actually moving an application for review at about the end of the period of limitation. Such a person cannot be said to be guilty of negligence or inaction, nor could he be said to be lacking in bona fides.
5. In Ma Hmwe Yai v. Daw Win Tha, AIR 1941 Rang 194, the rule of due diligence on the part of the appellant was repeated and it was laid down that if after the expiry of the period of 90 days, the appellant seeks for a further period, he must show that he has acted with due diligence. What is meant by the rule of due diligence is that the party is not guilty of negligence nor of inaction or lack of bona fides.
6. In Karali Charan v. Apurba Krishna : AIR1931Cal298 the question was referred to a third Judge on a difference of opinion between Graham and Mitter JJ. Suhrawardy J. then observed that the appellant had to explain the delay subsequent to the expiry of the period of limitation and any antecedent inaction or negligence of the appellant is not to be taken into consideration. This decision appears to have been followed in Natesa Mudaly v. Vedachala Naicken, 1931 Mad WN 1161. The facts of these two cases are different to those of the instant one. Therein papers had been handed over to the counsel for presentation of the appeal on the last date of limitation or before the expiry of the periodof limitation and it was due to an inadvertent omission or mistake on the part of the counsel that the appeal was presented beyond time.
In such circumstances any antecedent inaction on the part of the appellant could not be given any undue importance and the only point for consideration would have been whether negligence or omission on the part of the counsel amounts to gross negligence on his part, that is, a mistake which could not be committed while acting with due care and caution. The omission on the part of the counsel was held to be accidental and not to amount to negligence. On the facts the Calcutta and the Madras cases can be distinguished.
7. The above decision of the Calcutta High Court was followed in Nauratan Mal v. Hari Singh and it was also observed therein that the antecedent inaction or negligence was not material and should not be taken into consideration. The facts of the case, however, appear to indicate that there was no antecedent negligence or inaction on the part of the appellant.
8. It will thus appear that the Calcutta and Rajasthan High Courts have taken the view that antecedent negligence, inaction or lack of bona fides is not to be taken into consideration. The Allahabad view is, on the whole, to the contrary, In ILR 13 Mad 269 (FB) which was quoted with approval by their Lordships of the Supreme Court, the scope of tile words, negligence, inaction or want of bona fides had not been restricted by the use of the word 'antecedent'. Consequently the law on the point must be held to be as laid down by the Supreme Court.
9. In this connection it may further be observed that where a party is guilty of negligence, inaction or bona fides during the period following the expiry of the period of limitation, the Courts of law will always hold that the appellant has failed to explain the delay in the presentation of the appeal. Suppose one day's delay in the presentation of the appeal has not been explained, the Courts of law will at the same time hold that the party was negligent or inactive that day.
Consequently, no question shall invariably arise to find out whether a party was guilty of negligence, inaction or bona fides. The only question for consideration in all such cases shall be whether the party has succeeded in explaining the delay in the presentation of the appeal. If the delay is explained it shall he condoned and the appeal admitted though presented on the expiry of the period of limitation.
It is only when the delay in the presentation of the appeal is explained that the Courts of law have to consider whether in the circumstances of the ease the delay be condoned or not. Courts of law are reluctant to show leniency to a party guilty of negligence, inaction or bona fides. In other words, therefore, it is the conduct of the party prior to the expiry of the period of limitation which shall determine whether he was or was not guilty of negligence etc.
10. The scope of Section 5 of the Limitation Act can, therefore, be summarised as below:
11. The appellant has to explain the delay in the presentation of the appeal from the date of the expiry of the period of limitation, but if it is found that he was guilty of antecedent negligence or inaction or was lacking in bona fides, the Court may decline to exercise discretion in his favour even though he may be successful in explaining the delay from the date of the expiry of the prescribed period of limitation.
12. It was at this stage that the learned counsel for the appellant made a request for time to file a supplementary affidavit to show that he was not guilty of negligence or inaction, nor did he lack in bona fides. In order that no injustice may be done to the appellant he is granted three weeks' time to file a supplementary affidavit.