Collector, Land Acquisition, Anantnag v Mst Katiji (1987)

Section 5 gives no definition of sufficient cause. This case supplies the approach, in six numbered propositions which are quoted in nearly every later decision on condonation of delay, and it settles a question that arises constantly in practice: whether the State is to be treated differently from a private litigant when it seeks condonation.

The answer is that it is not — but for a reason that cuts both ways, and candidates should be able to state both sides of it.

An appeal by the State of Jammu and Kashmir arose out of a decision enhancing compensation for land acquired for a public purpose. The enhancement was of the order of 800 per cent, from Rs 1,000 per kanal to Rs 8,000 per kanal, amounting to nearly 14 lakhs of rupees, and the appeal also raised important questions on the principles of valuation.

The appeal was four days out of time. The High Court rejected the application for condonation of delay and dismissed the appeal as time-barred. The State appealed by special leave.

The opening sentence sets out two questions, and the second is the real one: to condone or not to condone is not the only question; whether or not to apply the same standard in applying the sufficient cause test to all litigants regardless of their personality is another.

Sufficient cause existed. The order of the High Court dismissing the appeal as time-barred was set aside and the matter remitted for disposal on the merits after a reasonable opportunity of hearing to both sides.

The court explains that the legislature conferred the power to condone delay by s. 5 in order to enable courts to do substantial justice by disposing of matters on their merits, and that the expression sufficient cause is adequately elastic to enable courts to apply the law in a meaningful manner which subserves the ends of justice. The liberal approach is adopted on principle, for six reasons:

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 the cause of justice being defeated. 3. As against that, when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 4. The maxim that every day's delay must be explained does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational, common sense, pragmatic manner. 5. 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 a vested right in injustice being done because of a non-deliberate delay. 6. 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.

The passage that follows is the one most often quoted: the judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

The fact that it was the State and not a private party seeking condonation was held altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State, are accorded the same treatment and that the law is administered in an even-handed manner. There is no warrant for according step-motherly treatment when the State is the applicant.

The court then makes the observation that later cases have picked up in both directions: experience shows that on account of an impersonal machinery — no one in charge of the matter being directly hit or hurt by the judgment appealed against — and the inherited bureaucratic methodology of note-making, file-pushing and passing on the buck, delay on the State's part is less difficult to understand though more difficult to approve. In any event the State, which represents the collective cause of the community, does not deserve the status of a litigant non grata.

Set out s. 5 exactly, including its two limits — it applies to an appeal or an application, never to a suit, and it excludes applications under any of the provisions of Order XXI of the Code — and its Explanation about being misled by an order, practice or judgment of the High Court. Then give the six propositions, and the equality point about the State.

Then take the answer forward in time, because a question on s. 5 that stops at Katiji is incomplete. State of Nagaland v Lipok AO (2005) applies the liberal approach to a State appeal while cautioning against certified inaction; State of Madhya Pradesh v Bherulal (2020) refuses condonation on a routine plea of governmental procedure and inordinate unexplained delay. The three together give the modern position: the construction is liberal, but liberality is not a substitute for an explanation.

The liberal approach is not a rule that delay is always condoned. It is a rule about how to read the words sufficient cause — pragmatically rather than pedantically — and it is expressly conditioned on the absence of deliberate delay, culpable negligence and mala fides. Where the record shows inaction rather than misfortune, none of the six propositions assists the applicant.