Condonation of Delay under Section 5, Limitation Act

Section 3 bars every late proceeding. Section 5 is the main exception: it lets a court admit a late appeal or application if the party shows sufficient cause for the delay. It is one of the most litigated provisions in Indian procedural law, and the Supreme Court's approach has moved between liberality and strictness. This note covers the text and scope of section 5, what it excludes, how condonation is sought, its operation under special laws, and the leading cases, ending with the 2024 restatement in Pathapati Subba Reddy.

1. The Provision

Figure 1: How condonation works

• Text, s.5. Any appeal or any application, other than an application under any of the provisions of Order XXI of the CPC, may be admitted after the prescribed period if the appellant or applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within that period.
• Explanation. The fact that the appellant or applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause.
• Change from 1908. Section 5 of the 1908 Act covered only appeals, applications for review or revision, leave to appeal and applications specified by other laws. The 1963 Act extended it to any application, except those under Order XXI.
• Nature. A power to extend the prescribed period, exercised at the court's discretion. Proof of sufficient cause is a condition, but it does not create a right to condonation.

2. Scope and Exclusions

Figure 2: What section 5 covers

• Suits excluded. Delay in filing a suit can never be condoned. A plaintiff can rely only on the exclusion, extension and fresh-period provisions in ss.4 and 6 to 24.
• Order XXI excluded. Applications in execution, such as an application to set aside a sale under Order XXI Rule 90, cannot be admitted late under s.5. Other sections, such as ss.4, 12 and 14, still apply.
• Criminal proceedings. Section 5 applies to criminal appeals and revisions governed by the Schedule. Limitation for taking cognizance of offences is under the BNSS and has its own extension provision (Topic 26)
• Mela Ram and Sons v CIT (1956). An appeal presented out of time is still an appeal; an order dismissing it as time-barred is an order passed in appeal.

3. Procedure

• Application and affidavit. The party files an application for condonation with the late appeal or application, supported by an affidavit and documents explaining the delay.
• Hearing the other side. The opposite party is heard, since condonation takes away a benefit that had accrued to it.
• Decided first. The delay is decided before the merits. In Pathapati Subba Reddy (2024) the Court held that the merits are irrelevant at the condonation stage.
• Costs and conditions. The court may condone on payment of costs, but costs cannot replace the requirement of sufficient cause.
• Re-filing. Delay in re-filing after a timely filing returned for defects is viewed more leniently than delay in the original filing.

4. Section 5 and Special Laws

• Section 29(2). Section 5 applies to periods fixed by special or local laws unless they expressly exclude it. Exclusion may also follow from the scheme of the statute (Topic 24)
• Union of India v Popular Construction (2001). Section 34(3) of the Arbitration Act, which allows only 30 further days 'but not thereafter', excludes s.5.
• Commissioner of Customs and Central Excise v Hongo India (2009). The fixed periods in s.35H of the Central Excise Act exclude s.5; the High Court cannot condone delay beyond them.
• Government of Maharashtra v Borse Brothers (2021). Section 5 applies to appeals under s.13 of the Commercial Courts Act, but delay is condoned only by way of exception, given the object of speedy disposal.

5. Leading Cases

Figure 3: The development of the law

• Katiji (1987). The Court set out the liberal approach: a litigant does not ordinarily benefit by filing late; refusal may defeat a meritorious matter; 'every day's delay must be explained' does not mean a pedantic approach; substantial justice prevails over technicality; there is no presumption that delay is deliberate; and the State is to be treated like any other litigant.
• State of MP v Bherulal (2020). Delay of 663 days by the State was not condoned. The Court imposed costs, to be recovered from the officers responsible, and criticised the filing of appeals only to record that the matter had been closed.
• Sheo Raj Singh v Union of India (2023). The Court upheld condonation of a delay by the Government, distinguishing between an explanation, which may be accepted, and an excuse, which may not.
• Pathapati Subba Reddy (2024). Limitation rests on public policy; s.3 is construed strictly and s.5 liberally; a liberal approach cannot defeat the substantive law; condonation may be refused even when cause is shown if there is inordinate delay or negligence; relief to others gives no parity; merits are irrelevant; and condonation on costs alone disregards the statute.

6. Frequently Asked Questions

Can a court condone delay in filing a suit?

No. Section 5 applies only to appeals and applications. A late suit must be dismissed under s.3 unless the plaintiff can bring the case within an exclusion or extension in ss.4 and 6 to 24, such as legal disability, time spent in a wrong court, or an acknowledgment.

Does section 5 apply to execution applications?

No. Section 5 expressly excludes applications under any of the provisions of Order XXI of the CPC. An execution petition must be filed within the period in Article 136, and applications under Order XXI, such as to set aside a sale, cannot be admitted late.

7. Related Topics

• Topic 6: Doctrine of Sufficient Cause. What counts as sufficient cause.
• Topic 24: Limitation and Special or Local Laws. When s.5 is excluded.