Ex parte condonation does not foreclose limitation objections; delay must still be justified by sufficient cause.
An ex parte order admitting an appeal after condoning delay did not finally preclude the appellate court from reconsidering limitation at the hearing, because the absent respondent's accrued finality rights could be reopened on fairness grounds and in line with court practice. The court therefore held that the objection to jurisdiction failed and that it could examine whether sufficient cause existed. On the evidence, the appellant did not discharge the burden of proving a distinct and satisfactory explanation for the delay, so the delay was not excused. The dismissal of the appeal with costs therefore stood.
Issues: (i) Whether an ex parte order admitting an appeal after excusing delay precluded the appellate court from reconsidering the question of limitation at the hearing. (ii) Whether sufficient cause was shown to excuse the delay in presenting the appeal under the limitation law.
Issue (i): Whether an ex parte order admitting an appeal after excusing delay precluded the appellate court from reconsidering the question of limitation at the hearing.
Analysis: An order admitting the appeal was made without notice to the respondent and affected a valuable right arising from finality of the decree. In those circumstances, fairness required that the order be treated as open to reconsideration at the instance of the party prejudiced by it. The practice followed by the courts also supported reopening the question of limitation when the appeal came on for hearing. The appellate court therefore had jurisdiction to examine the sufficiency of the cause shown even at that stage.
Conclusion: The objection to jurisdiction failed.
Issue (ii): Whether sufficient cause was shown to excuse the delay in presenting the appeal under the limitation law.
Analysis: A litigant seeking indulgence for delay bears the burden of proving distinct and sufficient cause. On a careful appraisal of the affidavits and evidence, the court below disbelieved the explanation offered and held that the delay had not been satisfactorily accounted for. No error was shown in that appreciation of the evidence.
Conclusion: Sufficient cause was not established and the delay was not excused.
Final Conclusion: The appeal could not be sustained, as the limitation objection was open to reconsideration and the appellant failed to justify the delay; the dismissal of the appeal with costs stood.
Ratio Decidendi: An ex parte order admitting an appeal on the basis of excused delay does not finally conclude the limitation question against the absent respondent, and delay can be excused only on distinct proof of sufficient cause.
TaxTMI 
AI Drafter ✕
TaxTMI 
