Difference between Delay in Filing and Delay in Re-presentation (Delay in Re-filing) (Section 5, Limitation Act, 1963)

Introduction: 

In India, law imposes strict time limits for instituting litigation. Section 5 of the Limitation Act, 1963 permits courts to condone delay in filing appeals or certain applications if the appellant or applicant shows “sufficient cause”. However, a separate concept arises when a plaint or petition was originally presented within time but returned by the court for defects; the litigant then re-presents the same case. This is referred to as “delay in representation.” The key distinction is that delay in filing occurs when an action is filed after the statutory period has lapsed, whereas delay in representation occurs when re-presentation is delayed after an initial timely filing that was returned for formal or substantive defects. The principles governing each are not identical, as Section 5 directly authorizes extension of time for filing new proceedings but does not explicitly address re-presentation of returned cases.

Delay in Filing vs Delay in Representation: Definitions

• Delay in Filing: This arises when a suit, appeal or petition is instituted after the prescribed period under the Limitation Act has expired. For example, filing a revision or appeal beyond the date of limitation. Under Section 5, such delays may be condoned if sufficient cause is shown. Strict rules apply: the applicant must explain the entire period of delay and the court typically issues notice to the opposite party before granting relief. Important cases like Popular Construction Co. v. Union of India (2001) stressed that even under Section 5 there are statutory limits (e.g. appeals under special Acts often cannot extend beyond 30 days past limitation)

• Delay in Representation: This arises when a petition or plaint was filed within limitation but the court returned it for technical objections (such as inadequate court fees or improper jurisdiction), and the litigant delays in curing the defects and re-presenting it. Under the Civil Procedure Code, for example, Order IX Rules 7 and 11 (for suits) or Order II Rule 3 (for appeals in some High Courts) allow a court to return pleadings for compliance. The key issue is whether Section 5 applies to such re-presentations. Traditionally, courts have observed that once a plaint has been returned and re-presented, it is considered a fresh filing unless the defects were purely formal. If the defect is substantial (“non-plaint”), the limitation period may run from the date of re-presentation.

Legal Framework: Section 5 and Condonation of Delay

Section 5 of the Limitation Act states that “Any appeal or application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, 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 such period.” This relief is discretionary, and the courts have generally adopted a liberal approach to interpreting “sufficient cause”. Landmark judgments like Improvement Trust, Ludhiana v. Ujagar Singh (2010) reiterate that the ends of justice favor deciding cases on merits if delay is explained and not due to mala fide or gross negligence. The Supreme Court has held that the Legislature intended flexibility for appeals and applications, but also recognized that even this power has reasonable limits (for example, not extending statutory maximums beyond fixed extensions).

Importantly, Section 5 applies to new filings (appeals or applications for directions, reviews, etc.) and not to re-presentation by way of mere procedural compliance. Courts often distinguish a petition to condone delay in filing an appeal (Section 5 relief) from an application to condone delay in re-presentation of a returned petition (often dealt with under Section 151 CPC or inherent powers). In effect, delay in filing is measured against the statutory period, whereas delay in representation arises after an original filing that is deemed incomplete for formal reasons.

Judicial Approach to Delay in Filing

• Scope and Liberal Interpretation: The courts, especially at the apex level, emphasize that Section 5 should be given a liberal, justice-oriented construction. In Improvement Trust v. Ujagar Singh, the Supreme Court observed that unless there is clear mala fide, delay should be condoned to enable adjudication on merits. Similarly, judgments like State of Nagaland v. Lipok AO have urged that Section 5 be construed favorably to avoid denial of justice due to technical delays. The burden remains on the party to explain the delay fully. In statutory appeals (e.g., under tax or arbitration law), the courts allow up to 30 days beyond limitation but generally no more, as underscored in Popular Construction Co. v. UOI.
• Elements of “Sufficient Cause”: Case law has identified factors to consider when condoning delay in filing. These include illness of the litigant or counsel, genuine mistake, or unavoidable hindrances. Courts also weigh whether the plaintiff prosecuted the case with reasonable diligence otherwise, and balance the prejudice to the other side. Importantly, the courts are slow to attribute delay to mere negligence of counsel if some satisfactory explanation is provided. However, undoubted delays of unreasonable length or those suggesting mala fide can be grounds for refusal, even under Section 5.
• Non-Interference on Merits: Once an appellate or revisional authority exercises its discretion under Section 5 and condones delay, higher courts generally do not disturb that decision on merits. For example, the Supreme Court in Bhagmal v. M.P. Co-operative Marketing held that if an appellate forum condoned delay after hearing both sides, the High Court cannot lightly interfere under Article 226 or 227. This underscores that the decision whether to condone delay is one of judicial discretion, not a question of substantive law.

Judicial Approach to Delay in Representation

Courts recognize that representation of a returned petition or plaint is fundamentally different from filing a new proceeding. Key principles from case law include the following:

• Nature of Re-Presentation: The apex court in Hanumanthappa v. Chandrashekarappa (1997) held that presentation of a plaint and its re-presentation after return are separate acts. In that case, the Supreme Court treated a re-presented plaint as the institution of a fresh suit if the initial filing was invalid. Thus, if the defect was so serious as to make the plaint a “non-suit” initially, the limitation would run anew from the date of re-presentation. Conversely, if the returned defect was merely formal (for example, a misdirection or minor omission), the courts have sometimes held that re-presentation can relate back to the original presentation date, effectively preserving the original limitation. The Delhi High Court in DSA Engineers v. HUDCO (2003) explicitly distinguished these situations: it ruled that when defects are formal or ancillary, the original filing date stands; but where the plaint itself was not maintainable as presented, the re-presentation is a new filing.
• No General Statutory Condonation: Unlike delay in filing appeals (for which Section 5 applies), there is no statute expressly empowering condonation of delay in re-presentation. Courts often treat such petitions as applications made under Order IX, Rule 13 CPC (for suits) or under inherent jurisdiction (Section 151 CPC) to recall a return order. In S.R. Kulkarni v. Birla VXL Ltd. (1998, Delhi) and other decisions, the high courts noted that the stringent tests of Section 5 should not be mechanically applied. Nevertheless, the dominant theme is that condonation of representation delay is an exception and not a matter of course. For instance, the Andhra Pradesh High Court in Krishnaiah v. Meduri (2011) emphasised that a court will not condone lengthy delays in representation “just for asking”.
• “Matter Between Court and Litigant”: Several judgments describe condonation of delay in representation as essentially between the party and the court alone. Once a plaintiff has been properly notified of defects (or a party has been given notice to comply) and fails to act, courts have required a strong justification for any further delay. Some High Courts have held that opponents to a suit cannot complain if delay in representation is condoned, because it is within the trial court’s discretion to allow it. The standard is often whether the applicant “pursued the case with reasonable diligence” after removal of defects. Any hint of mala fide or evasion (for example, submitting false excuses) has led courts to refuse such condonation.
• Notice Requirements: In practice, an application to condone delay in representation is usually heard without issuing notice to the other side. The rationale is that the defect was not raised by the opposite party; returning the petition was a ministerial act. Thus, when the plaintiff petitions to re-present, courts often consider it suo motu. However, this does not mean the court will freely condone time; reasons must be recorded. For example, the Telangana High Court has pointed out that representation delays cannot be accorded blanket indulgence.

Key Differences and Consequences

• Causation and Scope: Delay in filing is measured from the accrual of cause of action and triggers Section 5. Delay in representation is measured from the date the petition became complete and ready for re-institution. Section 5 directly applies only to the former. Courts may invoke inherent powers or equitable principles for the latter.
• Requirement of “Sufficient Cause”: For delay in filing, “sufficient cause” is the statutory test under Section 5. In contrast, for delay in representation, the courts have looked at analogous concepts (diligence, excuse, prejudice), but often emphasize that routine neglect of formalities is insufficient. A learned counsel’s inadvertence for an extended time may not be a valid cause.
• Prejudice and Balancing: While both forms of delay consider prejudice to the other party, courts may be stricter with representation delay. For instance, if re-presenting a returned plaint years later uproots settled rights (such as an ex parte decree on record), courts have denied condonation. In M. N. Shanmugam v. Chokkalingam (2009), the Madras High Court refused indulgence where the applicant’s affidavit was found false in condonation papers.
• Illustrations: If a party files an appeal one year late, Section 5 applies; notice is given, and the court may condone delay if there is genuine cause. If a plaintiff files a suit on time but the court returns it for a minor defect, and the plaintiff re-files three months later, technically Section 5 is not invoked – it is a re-presented suit. The courts have generally required that the defect be remedied within the original limitation period (or that the plaintiff show reason for any excess). Cases exist on both sides: some courts have condoned even very long representation delays where explained (especially in earlier judgments), but the modern trend is to insist that the representation occur promptly after return.
• Recent Trends: High Courts continue to grapple with the issue. Recent Madras High Court rulings reiterate that condoning delay in representation is within its discretion but is not automatic. For example, in a 2020 Madras case Trilochan Singh Chadha v. Harita Seating, the court held that even a 1,012-day representation delay could be condoned if satisfactorily explained and without prejudice. On the other hand, in execution proceedings or special contexts (like appeals under SARFAESI Act), tribunals have sometimes refused to allow representation after e-filing deadlines.

Conclusion Reference Judgements 

In sum, delay in filing and delay in representation are two distinct situations under the procedural law. Delay in filing falls squarely within the ambit of Section 5 of the Limitation Act, 1963, and courts have a well-established framework (developed by Supreme Court rulings) for its condonation. Delay in representation, by contrast, arises only after an original submission is returned, and no express provision like Section 5 covers it. The courts have treated it on a case-by-case basis: if the procedural defect was minor, they may treat the case as if originally filed; if major, the re-presentation may be deemed a new filing requiring careful justification of the delay. Overall, courts tend to condone representation delays sparingly encouraging litigants to act diligently in curing defects  whereas delay in filing appeals or petitions has more latitude for indulgence if “sufficient cause” is shown. Both types of delay raise the broader policy balance between strict adherence to limitation statutes and the interest of deciding genuine disputes on merits. Ultimately, litigants must be vigilant: a technical mistake is forgivable, but taking years to correct it invites the courts’ disfavor.

R. Gopalakannan Advocate, Supreme Court of India & High Court of Madras 

Reference Judgements 

1. Limitation Act, 1963 - Section 5.
2. Popular Construction Co. v. Union of India (2001)
3. Trust, Ludhiana v. Ujagar Singh (2010)
4. Improvement Trust v. Ujagar Singh
5. State of Nagaland v. Lipok
6. Popular Construction Co. v. UOI
7. Bhagmal v. M.P. Co-operative Marketing
8. Hanumanthappa v. Chandrashekarappa (1997)
9. DSA Engineers v. HUDCO (2003)
10. S.R. Kulkarni v. Birla VXL Ltd. (1998, Delhi)
11. Krishnaiah v. Meduri (2011)
12. M. N. Shanmugam v. Chokkalingam (2009)
13. Trilochan Singh Chadha v. Harita Seating