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This article is written by Adv. Vijay Shekhar Jha (BA.LLB(H), LLM). In this article, the author describes the power of the Supreme Court under Article 142 in extending the limitation period during COVID-19.

On 23rd March 2020, the Hon’ble Supreme Court through a bench presided over by the Chief Justice S. A. Bobde,  Justice L. N. Rao and Justice Surya Kant in the case of In Re in Suo Motu Writ Petition No. 3 of 2020 (hereinafter will be referred as “the Order”) has taken ‘suo-moto’ cognizance of the precarious situation springing out of the outbreak of Covid-19 Virus in our country and consequential hassles and difficulties that may be faced by litigants across the country in filing their petitions/applications/suits/appeals within the period of limitation prescribed under the general law of limitation or under Special Laws (both Central and/or State).

This order of the Hon’ble Court has come after its order dated 20th March 2020, in the case of Union of India vs. P. D. Sunny & Ors, wherein Hon’ble Court granted a stay on the orders of the Hon’ble High Court of Allahabad and High Court of Kerala precluding recovery of tax & dues.

Though on various occasions Hon’ble Supreme Court has extended the statutory time limit (e.g. Directorate of Enforcement vs Ashok Kumar Jain AIR 1998 SC 631), however, it is the very first time when the Hon’ble Court has passed such a blanket order extending the limitation period regarding all proceedings whether under state law/central law or general law/special law.

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This commendable order has been passed by the Hon’ble Supreme Court in exercise of its powers under Article 142 & 141 of the Constitution of India. Article 142 of the Constitution, confers on the Hon’ble Supreme Court a plenipotentiary power to pass any order so as to do complete justice in any cause or matter pending before it. Further, the phrase ‘complete justice’ is quintessential, as the existence of the same shows the amplitude and the all-pervasive nature of the power vested on the Hon’ble Court to ensure that ‘complete justice’ is done and this has to be viewed in contradistinction to the word ‘justice’.

Pertinently, on various occasions, Hon’ble Supreme Court has expounded meaning of the expression “complete justice”. In K. Veeraswami v. Union of India, the Supreme Court held that: 

“it has always been a law maker and its role travels beyond merely dispute settling. It is a ‘problem solver in the nebulous areas”. 

Recently, the Hon’ble Supreme Court in Nidhi Kaim & Anr vs State Of MP And Others, observed that:

“there cannot be any defined parameters, within the framework whereof, this Court would exercise jurisdiction under Article 142 of the Constitution. The complexity of administration, and of human affairs, would give room for the exercise of the power vested in this Court under Article 142, in a situation where clear injustice appears to have been caused, to any party to a lis. In the absence of any legislation to the contrary, it would be open to this Court, to remedy the situation”.

Such order was not only necessary to safeguard interest of the parties entangled in a suit/appeal/proceeding, but also, to protect courts/tribunals from the flood of applications that parties would have filed seeking condonation of delay in their respective cases on account of outbreak of Covid-19 irrespective of the fact that whether or not such application can be made under the law concerning their case. This view gets reinforced by perusal of Section 29(2) of the Limitation Act, 1963. Section 29(2) of the Limitation Act, 1963 reads as under:

“(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.”
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Therefore, for attracting section 29(2) of the Limitation Act, 1963 three conditions are necessary to be satisfied:

  • There must be a provision for period of limitation under any special law or local law in connection with any suit, appeal for application.
  • The said prescription of period of limitation under such special or local law should be different from the period prescribed by the Schedule to the Limitation Act.
  • There should not be any express provision in the special or local law contrary to the provisions in sections 4 to 24 of the Limitation Act.

If these three conditions are satisfied, section 4 to section 24 will be applicable in view of section 29(2).

The provisions of section 29(2) of the Limitation Act creates a statutory presumption of express inclusion of the provisions of section 4 to 24 of the Limitation Act into the provisions of the Special or Local law. Such a statutory presumption cannot be displaced or rebutted by a mere assumption. In view of the law laid down by the Supreme Court such a statutory presumption can be displaced, rebutted or refuted by an inference of express exclusion, in the absence of a clear and specific statutory provision, only in case it is evident or is established that the provisions of section 4 to 24 of the Limitation Act when read into or as part of the special or local law cannot exist or stand together in the same statute on account of apparent conflict and contradictions.

In light of above discussion, it becomes essential to peruse following provisions of Limitation Act,1963, which parties mired in different cases would have taken support to justify their application for condonation of delay:

4. Expiry of prescribed period when court is closed

“Where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens.

Explanation.— A court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day.”

5. Extension of prescribed period in certain cases

“Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the 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. 

Explanation.— The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.”

Here, it will be worthwhile to take stock of Hon’ble Supreme Court’s take on the phrase “substantial cause”. Hon’ble Supreme Court in G.Ramagowda vs Special Land Acquisition officer observed that:

“The expression “sufficient cause” in Section 5 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of delay.

Understanding the Power of Hon’ble Apex Court in the light of the said Order

Article 142 of the Constitution of India reads as under

“142. Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.

(1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.

(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.”

From the bare perusal of the above-mentioned article it is amply clear that the power conferred by this Article on Hon’ble Supreme Court is plenary, untrammeled and unbridled power not inhibited by any constraints or limitations so much so that it can get its order enforced without depending on the executive for the implementation of its order. It can also be considered a panacea for the public at large to have justice done in any cause’ or ‘matter’ pending before it. The Article clothes the Hon’ble Court to pass orders that holds the field as a law, until the Legislature acts upon the same.

The problem caused by the phrase ‘pending before it’ gets obviated by the decision of  Hon’ble Supreme Court in UOI v M. Bhaskar, wherein Hon’ble Supreme Court interpreted this article to mean that benefits of a judgment, where appropriate, can even be extended “to all similarly placed persons” irrespective of the fact whether they are party to the proceedings or not. 

At this juncture, it is very pertinent to note that even the Hon’ble Supreme Court in  the case of State of Maharashtra vs Sarva Sangh Sangli has observed

“this authority under Article 142 of the Constitution will also have to be read as coupled with a duty to do complete justice in a given case.”

Therefore, if situation so arises which demands the invocation of Article 142 of the Constitution, Hon’ble Supreme Court being the custodian of the Constitution has to exercise this plenary power, as not doing so will certainly be seen as dereliction of its duty.

Further, Article 141 of the Constitution binds all the Courts within the territory of India to the law declared by the Supreme Court.

  1. Law declared by Supreme Court to be binding on all courts.

The law declared by the Supreme Court shall be binding on all courts within the territory of India.

Therefore, Article 142 and 141 are by design made comprehensive to enable the Supreme Court to declare the law and to give such directions or pass such orders as are necessary to do complete justice.

Further, it must be borne in mind that the Hon’ble Supreme Court has passed this order with a view to remove hardships which would have arisen from lapse of proceedings on account of the same being time-barred or delayed.

Para 1 of the Order is usefully reproduced as under:

“This Court has taken Suo Motu cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 Virus and resultant difficulties that may be faced by litigants across the country in filing their petitions/applications/suits/ appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under Special Laws (both Central and/or State).”

However, the very next paragraph is important in the interpretation of the order:

To obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunals across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings”

Lastly, the order explained about its binding effect all courts/tribunals and authorities in the following manner:

“We are exercising this power under Article 142 read with Article 141 of the Constitution of India and declare that this order is a binding order within the meaning of Article 141 on all Courts/Tribunals and authorities. This order may be brought to the notice of all High Courts for being communicated to all subordinate Courts/Tribunals within their respective jurisdiction. Issue notice to all the Registrars General of the High Courts, returnable in four weeks”

The pervasive effect of this order can be best understood when one peruses Section 15(1) of the Limitation Act, 1963, which reads as under:

15. Exclusion of time in certain other cases

“(1) In computing the period of limitation of any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.” 

It is therefore apparent that the relief under the Order extends to all proceedings including proceedings initiated under Special laws, viz. Income Tax Act, 1961; GST Act, 2017; Companies Act 2013; Customs Act, 1962 etc. being Central-Special laws.

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