The Limitation Act, 1908 does not give a right where none exists but specifies a period of enforceability of an existing right. Enacting periods of limitation is necessary to ensure that actions are commenced within a designated time frame, firstly, to give effect to the principle that law does not assist a person who is indolent and sleeps over his rights, and secondly, to ensure that evidence is available for the defendant to contest the claim against him. The statute of limitations is based on public policy since an endless period of time to enforce a right could result in perpetual uncertainty and consequential anarchy. Therefore, statutes of limitation are sometimes correctly referred to as ‘statutes of peace’.
Section 5 of the Limitation Act, 1908 provides for extension of period i.e. condonation of delay in the following 5 cases, i.e. appeal, application for a revision, review of judgment, leave to appeal and any other application to which this may be made applicable by or under any enactment for the time being in force. The condition precedent for condonation of delay under section 5 is the proof of sufficient cause. The term ‘sufficient cause’ encompasses any legitimate, equitable, impartial, rightful, or lawful reason that a Court deems adequate to justify the absence or failure on the side of the party seeking to utilize the assistance of section 5, based on the specific facts and circumstances of the case.
The issue of whether the Government can claim any special latitude in an application for condonation for delay has been one of the most ponderous topics before the Courts. There are two trends that the Supreme Court of Bangladesh and the Courts of the subcontinent follow. The first trend is to grant the Government some special latitude in consideration of the inherent delay caused by the slow-moving bureaucratic machinery. The second trend is to deny any special treatment on the basis that the government is expected to function even more efficiently than a person due to the increased manpower.
While the Government is equal to any other private citizen in terms of being a litigant, it faces unique challenges. The decisions made by the Government are collective in nature and differ from the decisions made by private persons. If the Government’s appeals are unsuccessful due to the failure to condone the delay, it does not directly impact any individual, but what suffers is public interest. Therefore, when determining what qualifies as ‘sufficient cause’ under Section 5, it would be unrealistic to disregard the peculiar and distinctive problems of the Government. For example, Governmental decisions are proverbially slow encumbered, due to the extensive bureaucracy and procedural formalities they must navigate.
The most common ground for condoning delay by Government is that owing to the inherited bureaucratic methodology imbued with the note-making and file-pushing ethos, a certain amount of latitude within reasonable limits is permissible. Given that the Limitation Act of 1908 is grounded in public policy, it is crucial to prioritize public interest while considering the condonation of delays.
Following this line of reasoning, in many instances the Supreme Court of Bangladesh has shown leniency when the Government has filed applications after the expiry of the limitation period. In the case of Government of Bangladesh represented by the Deputy Commissioner Rangpur v Hasrat Mohani and Others, delay of 4578 days was condoned. The suit involved a vast amount of land for which the decision of the Ministry of land to prefer the appeal was necessary. However, because the necessary file was also misplaced, the Government was held to have sufficient explanation of delay. Further, in Sonar Bangla Service Station v Government of Bangladesh, represented by the Secretary, Ministry of Works, Bangladesh Secretariat, Dhaka and other, 207 days’ delay was condoned on the ground that when on the part of the Government there has been no gross negligence in prosecuting the matter and since the Government represents the ‘collective cause of the community’, the prayer from Government for condonation of delay should be considered with somewhat leniency. In A.D.C (Rev) Vs. Mohammad Kftairullah & Ors, a large delay of 1302 days was condoned where the Court noted that the Government’s difficulty should be decided more closely and carefully as to condonation of delay to give relief to the Government which is a mere concept and it has to depend on others in making the decision of taking action. The delay was condoned because the Government, as a litigant, was found to be very active and it had no negligence in pursuing the matter.
In the recent case of Government of the People’s Republic of Bangladesh, represented by the Deputy Commissioner, Jashore and others. v Md. Abdul Karim and others, delay of 1038 days by the Government on the ground that Government machineries moves or functions through so many agencies and that it is not always possible to file a revisional application within the statutory period of limitation and as such, the delay should be condoned. Further in another recent case of the Government of Bangladesh, represented by the Divisional Forest Officer, Mymensingh and others v Mark A.U. Enterprise, delay of 690 days in filing the revisional application was condoned on the ground that delay has occurred due to the unforeseen challenges of the COVID-19 situation, factors outside the petitioners’ control.
The doctrine of equality before law demands that all litigants including the State as a litigant are accorded the same treatment and the law is administered in an even-handed manner. Condonation of delay is an exception, hence it should not be used as an anticipated benefit for the Government. Given the usage of current technologies, the Court in an Indian case (Bhuvaneswari v R.Maragatham) was reluctant to accept the claim that on account of impersonal machinery and inherited bureaucratic approach of making several notes, the Government ought to be given special latitude regarding condonation of delay. The Court noted in another Indian case (Municipal Corporation v Voltas Limited And Etc.) that the Government should now wake up soon and devise some methodology to see that papers for appeals are processed quickly and vigorously at all stages and scope for delay minimized to the bare minimum.
The Supreme Court of Bangladesh has also been refusing to condone delay in filing application by the Government where there is proof of negligence on part of the government functionaries. In Court of Wards Bhawal Raj Estate v Eastern Housing Ltd. and Others, delay of 191 days was not condoned on the ground that the entire statements of the application for condonation of delay with supplementary affidavit reflected the appellant’s callousness, negligence, slothful manner and indolent attitude. In Deputy Commissioner & Ors. Vs. Md. Aswab Ali & Ors., the government’s explanation attributed the delay of 1038 days to the negligence of the learned government pleader, who allegedly failed to notice the pronouncement of the judgment and inform the appellants. The government’s application for condonation of a 1038-day delay in filing an appeal was rejected due to insufficient explanation and evidence of negligence. Further, delays of 510 days were not conconed in A.D.C.(Rev) & Ors Vs. Sofir Ahmed Mia & Ors. Petition was rejected because delays, especially in the offices of the Solicitor, Ministry of Law and Attorney General, who are presumed to be well aware of the consequence of the delay, are reprehensible. Condonation of delay in such cases was considered a premium for the excessive laches and recklessness of the government officials.
In order to make the condonation of delay an exception rather than a presumed advantage for the government, section 5 of the Limitation Act, 1908 should be amended to limit the government’s ability to claim it except in exceptional circumstances demonstrating an absence of negligence. Such provisions may also stipulate that routine administrative delays are not ‘sufficient cause’ for the government to obtain delay condonation. It is also essential that clear procedures be establisshed to guarantee that delay condonation petitions from government entities undergo a more rigorous scrutiny. Supreme Court directives may require a formal affidavit of responsibility for each government appeal/application seeking delay condonation which should explain the delay, its causes, and the person/s responsible for the delay. The supervisory authority of the High Court Division, as delineated in Article 109 of the Constitution, is crucial for guaranteeing that subordinate courts adhere to this principle, thereby minimizing unwarranted delays. Lastly, rather than depending on post-facto condonation, preventive measures should be established to minimize delays. This may involve internal coordination to expedite filings and enhancing the use of existing Alternative Dispute Resolution (ADR) mechanisms to resolve disputes involving government entities.
About the author :
Oishe Rahman is an LL.M. student at the University of Dhaka. Her research interests include human rights law, civil law, public international law, and comparative law.