The Courts have ruled that the application for condonation of delay has to be heard and decided as a preliminary issue and only when the delay has been condoned the Courts can proceed further with the hearing/decision of the Appeal/Revision/Writ. But, the million dollar question is while hearing the application for condonation of delay the Court has only to consider the justifiability/sufficiency of the reasons which prevented the applicant from filing the appeal/revision etc. within the statutory time frame or should the Court consider the merits of the case while deciding the application for condonation of delay.

The Apex Court in a catena of judgments has categorically held that while deciding the application for condonation of delay the Court should not address/consider the merits of the case.

It would be trite to refer to Commissioner, Nagar Parishad, Bhilwara v. Labour Court, Bhilwara And Another 2009 (3) SCC 525 wherein the Apex Court categorically held thus:

5. While deciding an application for condonation of delay, it is well settled that the High Court ought not to have gone into the merits of the case and would have only seen whether sufficient cause had been shown by the appellant for condoning the delay in filing the appeal before it.....

It would be apposite to refer to State of Jharkhand & Ors vs Ashok Kumar Chokhani & Ors 2009 (2) SCC 667 wherein the Apex Court reiterated the said dictum & observed thus:

3. It is true that an observation has been made by the High Court in the impugned order that the subject-matter in the appeal also did not suffer from any infirmity but it is well settled that while deciding an application of condonation of delay in filing the appeal, the High Court could not go into the merits of the same.

The Apex Court in a recent judgment in the case of Pathapati Subba Reddy (Died) By Lrs And ors. vs Special Deputy Collector (LA) 2024 INSC 286 decided on 8 April, 2024 reiterated the aforesaid view and held thus:
22. It has also been settled vide State of Jharkhand & Ors. vs. Ashok Kumar Chokhani & ors. AIR 2009 SC 1927, that the merits of the case cannot be considered while dealing with the application for condonation of delay in filing the appeal.

The Apex Court in the said case finally summed up thus:

26. On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that:

(vii) Merits of the case are not required to be considered in condoning the delay;

The Apex Court in P Mani Moopanar v. K. Rajammal (2005) 11 SCC 800 held in clear terms that it was not permissible to the High Court to enter into the merits of the dispute and condone the delay. The Court held thus:
5. In our view, the High Court has erred in reversing the order of the trial court refusing to condone the delay. It was open to the High Court to accept the explanation given by the respondents for condoning the delay but, without setting aside the findings of the trial court on the sufficiency of cause shown, it was not permissible to the High Court to enter into the merits of the dispute and condone the delay.

Various High Courts have followed the dictum of the Apex Court in this regard. The Gujarat High Court in the case of Comed Chemicals Ltd vs Usv Limited & 2 others decided on 6 March, 2014 held thus:

"while deciding application for condonation of delay, Court cannot go into the merits of the case, if averments made in the application is sufficient to condone the delay, there is no hesitation to condone such delay (State of Jharkhand Vs. Ashok Kumar Chokhani, 2009 AIR(SC) 1927); "

The Gujarat High Court in the case of The Siddhapur Nagarik Sahakari Bank Ltd vs. State of Gujarat decided on 25 April, 2024 held thus:

22. It has also been settled vide State of Jharkhand & Ors. vs. Ashok Kumar Chokhani & Ors., AIR 2009 SC 1927 that the merits of the case cannot be considered while dealing with the application for condonation of delay in filing the appeal.

The Allahabad High Court in the case of Ram Lal vs Deputy Director of Consolidation decided on 1 October, 2021, observed thus:
"In the case of Ashok Kumar (supra), it has been observed that it is well settled that while deciding an application of condonation of delay in filing the appeal, the merits of the case could not be gone into. This proposition of law applies with respect to the order passed by the Settlement Officer of Consolidation as well, as a perusal thereof, shows that while condoning the delay the Settlement Office of Condonation entered into the merits of the case, as according to it, there being four brothers and the property being ancestral it should have been divided equally amongst them."

The Gujarat High Court in the case of M/S S R Ashok And Associates Pvt. Ltd vs M/S Dhorajiya Construction Company decided on 6 December, 2021 following Ashok Kumar (supra) held thus:
It further appears that while deciding an application for condonation of delay in filing an appeal, the merits of the case could not be gone into and such observation has been made by Hon'ble Apex Court in the case of State of Jharkhand v Ashok Kumar Chokhani reported in (2009) 2 SCC 667.

It is relevant to refer to Allahabad High Court judgment in Shri.Pattherao Narsu Patil @ Rajaram vs Sou.Gangubai Anandrao Lad And Others decided on 3 October, 2018 held thus:

8. Since the review petition is held not maintainable, there was no dispute that the Appellant had a right to file first appeal. As held in State of Jharkhand Vs. Ashok Kumar Chokhani, AIR 2009 SC 1927, in the application for condonation of delay, the first appellate court could not have gone into merits of the appeal and the delay condonation application could not have been rejected on the assumption that first appeal itself was not maintainable. At this stage, the Appellant had no opportunity to argue about the maintainability of the first appeal.

In the case of Municipal Corporation of Ahmedabad vs Voltas Limited And Etc. Etc. AIR 1995 GUJ 29 decided on 6 May, 1994, the Gujarat High Court dealt with the issue in hand and observed thus:

7.1 In this context our attention has been drawn to a decision of the Supreme Court in the case of State of Gujarat v. Sayed Mohd. Baquir El. Edroos, reported at AIR 1981 SC 1921. The contention similar to the present intention was advanced before the Supreme Court, which has been dealt, with in para 3 of the said decision. This contention was summarily rejected on the principle that the abatement stands in the way of the appeal being heard on merits, which cannot, therefore, be looked into.

Thus, the Court while considering the question of condonation of delay on merits, is barred from looking into the merits of the substantive matter, in the filing of which condonation is sought. In this context we may also observe that no decision of the Supreme Court has been pointed out to us wherein this decision has been dissented from. We are, therefore, obliged to hold that the merits of the substantive matter had no relevance whatsoever when the Court is dealing with the application for condonation of delay."

The Court further dealt in detail with the issue and gave elaborate reasoning for holding that that the merits of the case are irrelevant for deciding application for condonation of delay. The Court held thus:

20. Further, the contention that the delay is required to be condoned on the ground that the applicant has a good case on merits or that the merits of the matter should be considered as a predominant factor for condonation of delay requires to be rejected. Delay is condoned if sufficient cause for delay is shows. But that would not mean that for deciding the application for condonation of delay, merits should be decided.

If the merits are decided for condoning delay, it would be against the provisions of Section 3 of the Limitation Act, 1963. Section 3, inter alia, specifically provides that 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. Section 3 of the Limitation Act is mandatory and is based on well-recognised principles of equity. This bar is subject to the provision of Sections 4 to 24 of the Limitation Act.

21. In such a situation, Section 5 of the Limitation Act empowers the Court to condone delay if sufficient cause for not filing appeal or application within time is pointed out. Sufficient cause for delay in filing appeal can never be substituted by the merits of the matter for condonation of delay.

22. Further, whether the delay is for a short period or a long period is of no consequence because the Court is required to consider the reasons for delay and to apply to principles laid down in various cases. It is not, a matter of rule that because there is a short delay, it should be condoned or because there is a long delay, the application for condonation of delay should be rejected. It depends upon the sufficiency or otherwise of the reasons mentioned in the application for condoriation of delay.

It is true that, while deciding as to whether sufficient cause for delay is pointed out or not, the court is required to view it liberally so that justice can be done to the parties and the matter is decided on merits instead of throwing it out. But that would not mean that, in the absence of any reason pointed out at the admission stage for condonation of delay, the delay should be condoned. In my view, if such a type of application is granted, it would encourage deliberate and palpable negligence on the part of the concerned persons who are required to decide whether appeal should be filed or not.

25. Further, the aforesaid contention of the learned advocate for the applicants that for deciding the application for condonation of delay merits should be taken into consideration, ignores the provisions of Section 6. Section 3, inter alia, provides that any appeal or any application may be admitted after 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.

Therefore, 'sufficient cause' which is required to be shown in a cause for not preferring the appeal within the period of limitation. Therefore, 'sufficient cause' which is required to be determined by the Court is only with regard to the reasons given, or causes shown, by the appellant for not filing the appeal within time. It has no connection with the merits of the matter."

From the aforesaid it is undisputed that the application for condonation of delay has to be decided on the basis of the reasons given in the application which prevented the applicant from filing the appeal/revision within the statutory timeframe and the Courts cannot and should not deal with or consider the merits of the case while deciding the application for condonation of delay.

Written By: Inder Chand Jain
Ph no: 8279945021, Email: [email protected]