N. Balakrishnan vs M. Krishnamurthy on 3 September, 1998
9] In N. Balakrishnan vs. M. Krishnamurthy - (1998)
7 SCC 123, the Supreme Court has held that it is axiomatic
that condonation of delay is a matter of discretion of the
court. Section 5 of the Limitation Act does not say that such
discretion can be exercised only if the delay is within a
certain limit. Length of delay is no matter, acceptability of the
explanation is the only criterion. Sometimes delay of the
shortest range may be uncondonable due to want of
acceptable explanation whereas in certain other cases delay
of very long range can be condoned as the explanation
thereof is satisfactory. Once the court accepts the
explanation as sufficient it is the result of positive exercise of
discretion and normally the superior court should not
disturb such finding, much less in revesional jurisdiction,
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unless the exercise of discretion was on wholly untenable
grounds or arbitrary or perverse. But it is a different matter
when the first Court refuses to condone the delay. In such
cases, the superior court would be free to consider the cause
shown for the delay afresh and it is open to such superior
court to come to its own finding even untrammeled by the
conclusion of the lower court. The Supreme Court has then
proceeded to state reason for such a different stance.
10] In the aforesaid case, the Supreme Court has also
noted that in every case there can be some lapse on the part
of the litigant concerned. That alone is not enough to turn
down his plea and to shut the door against him. If the
explanation does not smack of mala fides or it is not put
forth as part of a dilatory strategy the court must show
utmost consideration to the suitor. But when there is
reasonable ground to think that the delay was occasioned by
the party deliberately to gain time then the court should lean
against acceptance of the explanation. While condoning delay
the Could should not forget the opposite party altogether. It
must be borne in mind that he is a loser and he too would
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have incurred quiet a large litigation expenses. It would be a
salutary guideline that when courts condone the delay due to
laches on the part of the applicant the court shall
compensate the opposite party for his loss.
11] Applying the aforesaid principles to the facts of the
present case, there is really no case made out to interfere
with the impugned order to the extent such order condones
the delay in the institution of an appeal against the partition
decree. However, the amount of costs of Rs.2000/- in the
facts and circumstances of the present case is too meagre
and therefore, the same deserves to be enhanced.
12] Taking into consideration the financial status of the
parties, the amount of costs are required to be enhanced
from Rs.2000/- to Rs.10,000/-.