Practice of Supreme Court In Respect of Condonation of Delay In Filing Special Leave Petition
A Special Leave Petition must be filed within ninety days from the date of the order of the High Court. In case the petition has been filed after the expiry of that period, an application for condonation of delay must be filed, stating inter alia that the petitioner had sufficient cause for not preferring the petition within time. The Supreme Court has power to condone the delay in tiling a special leave petition under exceptional circumstances. The petitioner has to explain delay of each and every day and the Court will not condone the delay if it is not convinced that the delay occurred due to reasons beyond the control of the petitioner. In case the Court is prima facie satisfied that the petitioner was prevented by sufficient cause in filing the petition in time, it would issue notice to the respondent to show cause why the delay should not be condoned.
Though the Supreme Court has the power to condone the delay ex-part, in Ramlal Kapur and Sons (P) Ltd. v. Ram Nath, the Court stated that:
"...except in very rare cases, if not invariably, this Court should adopt as a settled rule that delay in making an application for special leave should not be condoned ex-parte but that before granting leave in such cases, notice should be served on the respondent and the latter afforded an opportunity to resist the grant of leave. Such a course besides being just, would be preferable to having to decide applications for revoking leave at the time of hearing appeal on the ground that delay in making the same was improperly condoned, years after the grant of the leave when the Court naturally feels embarrassed by the injustice which would be caused to the appellant if leave were then revoked when he would be deprived of the opportunity of pursuing the other remedies if leave had been refused earlier."
The Court suggested an amendment in the Supreme Court Rules suitably to achieve this purpose. A provision has now been made vide Order XVI Rule 10(1) of the Supreme Court Rules, 1966
The Supreme Court has held that the power to condone the delay in approaching the Court has been conferred to enable the Court to do, substantial justice to the parties by disposing of matters on merits. The Supreme Court generally adopts a liberal approach in condonation of delay if sufficient cause for the delay has been shown and where the interests of justice so require.
In Union of India v. Visveswarava Iron and Steel Ltd., a special leave petition was filed by the Union of India after delay of one year of the receipt of the certified copy of the impugned judgment. The delay was due to slow action by different departments through which the certified copy of the judgment was routed. One year and nine months after the filing of the application for condonation of delay, another application was moved seeking time for filing a supplementary affidavit explaining the delay. The Court refused to condone the delay
In the case of Commissioner of Wealth Tax, Bombay v. Amateur Riders Club, Bombay, on a petition by the revenue which was delayed by 264 days, the Court had due regard to the fact that the Government should not be treated as any private litigant, as in the case of the former the decision to present and prosecute appeals are not individual, but are institutional decisions necessarily bogged down by proverbial red tape. But even then there were limits. In the facts of the case, where the affidavit in support of condonation of delay merely recited the movement of files from the advocate-on-record to the department and back, the Court held that it was not a judicially acceptable ground for condonation of delay.
In Collector, Land Acquisition, Anantnag v. Mrs Katiji, the Supreme Court held "sufficient cause" as employed by the legislature under Section 5 of the Indian Limitation Act would apply to special leave petitions as well. The Court held that a liberal approach is adopted in condoning the delay as it was realized that:
(1) Ordinarily a litigant does not stand to benefit by lodging an appeal late
(2) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
(3) The requirement that "every day's delay must be explained" does hour's delay, every second's delay? The doctrine must be applied not mean that a pedantic approach should be made. Why not every in a rational, commonsense and pragmatic manner.
(4) When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
(5) There is no presumption that delay is occasioned deliberately or on account of culpable negligence, or on account of mala fides, A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
(6) The judiciary is respected not on account of its power to legalize injustice on technical grounds, but because it is capable of removing injustice and is expected to do so.
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