A. Civil Procedure Code, 1908 – S. 149 and Or. 7 Rr. 11(b) & (c) – Discretionary power of court to allow party to
make up deficiency of court fee within stipulated time and to retrospectively validate insufficiency of stamp
duty, etc. – Scope – Ordinarily discretion to be exercised in favour of litigating parties unless there are mani-
fest grounds of mala fides – Concealment of material fact while making application for extension of date for
payment of court fee can be ground for dismissal of plaint – On facts held, rejection of appellant’s applica-
tion by Court fee which he was unable to pay due to financial constraints, held, erroneous and liable to be
set aside – Court Fees Act, 1870, S. 12
B. Limitation Act, 1963 – S. 5 – Condonation of delay – Non-condonation of delay for non-payment of court fees
– Propriety – Appellant-plaintiff approaching court claiming substantive right to property, but unable to pay
balance court fee due to financial constraints; his application for grant of extension of time for remitting bal-
ance court fee rejected, consequent to which his original suit was dismissed – High Court dismissing appli-
cation for condonation of delay in filing appeal – Held, appellant deserved more compassionate attention in
light of directive principle laid down in Art. 39-A of Constitution which is equally applicable to district judi-
ciary – Duty of courts is to see that justice is meted out to people irrespective of their socio-economic and
cultural rights or gender identity – Appellant deserved waiver of court fee subject to submission of affidavit
of income or legal aid by District Legal Service Authority so that he could contest his claim on merits which
involved his substantive right – Court of Sub-Judge erred in rejecting appellant’s suit for non-payment of
court fees
C. Limitation Act, 1963 – S. 5 – Condonation of delay – Non-condonation of delay – Propriety – Sufficient
cause, if established – Dismissal of appeal against order of Court of Sub-Judge rejecting appellant’s suit for
non-payment of court fee – Appellant categorically stating that he had gone to his advocate’s office to en-
quire about status of his suit, when he was informed that his suit was rejected for non-payment of balance
court fee – His advocate claiming that he had sent said information to appellant through postal card, but ap-
pellant stating that he had not received it and hence, was under impression that his application for exten-
sion of time for payment of court fee was allowed – On facts held, since delay in payment of court fees has
been condoned, delay in filing appeal also needs to be condoned – Impugned judgment rejecting appellant’s
application for condonation of delay in filing appeal set aside
D. Constitution of India – Art. 39-A – Scope – Held, Art. 39-A provides for holistic approach in imparting justice
to litigating parties – It not only includes providing free legal aid via appointment of counsel for litigants, but
also includes ensuring that justice is not denied to litigating parties due to financial difficulties
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10581 OF 2013
(Arising out of SLP(C) NO. 23918 OF 2012)
MANOHARAN
Vs.
SIVARAJAN & ORS.
V.Gopala Gowda J.
Date of Judgment : 25.11.2013
Citation;(2014) 4 Supreme Court Cases 163
Leave granted.
2.
This
appeal
questioning
final
Order
the
is
filed
correctness
dated
21.03.2012
by
of
the
the
passed
appellant
judgment
by
the
and
High
Court of Kerala at Ernakulam in RFA No. 678 of 2011
urging
various
facts
and
legal
contentions
in
justification of his claim.
3. Necessary relevant facts are stated hereunder to
appreciate the case of the appellant and also to
find out whether the appellant is entitled for the
relief as prayed in this appeal.
The appellant approached the respondent no. 1 -
a
money
lender,
for
a
loan
of
2,20,000/-.
The
respondent no. 1 agreed to give him the loan in
return of execution of a sale deed with respect to 3
cents of land in re-survey No. 111/13-1 in Block No.
12 of Maranalloor village by the appellant in his
favour. It was agreed upon between the parties that
the respondent no. 1 will reconvey the property in
favour of the appellant on repayment of the loan.
The appellant accordingly executed sale deed No. 575
of 2001 at sub Registrar’s office at Ooruttambalam
with
respect
to
3
cents
of
land
in
Re-survey
No.111/13-1 in Block no.12 of Maranalloor village in
favour no.1.
of
executed
favour
respondent
an
of
agreement
the
of
The
respondent
re-conveyance
appellant
regarding
no.
deed
the
1
in
above
mentioned property on the same day.
4.
The
learned
senior
counsel,
Mr.
Basanth
R.
appearing on behalf of the appellant argued that the
appellant
approached
the
respondent
no.1
several
times with money for re-conveying the property in
favour of the appellant as was agreed upon between
them but the respondent no. 1 evaded from doing so.
5.
It
is
also
the
case
of
the
appellant
that
respondent no.1, instead of issuing a deed of re-
conveyance, sold the property to Respondent nos. 2
and 3 without the knowledge of the appellant. The
appellant sent a legal notice to the respondent no.1
requesting him to appear before the sub Registrar’s
office
for
the
execution
of
re-conveyance
deed
regarding the plaint schedule property to which the
respondent no. 1 did not oblige. The appellant then
filed a suit being OS No. 141/2007 before the Court
of sub Judge, Neyyattinkara for mandatory injunction,
for
declaration
of
the
sale
deed
executed
by
Respondent no.1 in favour of Respondent nos. 2 and 3
as null and void, for execution of re-conveyance deed
in his favour and also for consequential reliefs. The
suit was valued at
valued at
3,03,967/- and the court fee was
28,797/-. The appellant paid 1/10th of the
court fee i.e.,
2880/- at the time of filing the
suit. The Court of sub Judge, Neyyattinkara granted
injunction in favour of the appellant restraining the
respondents
from
carrying
out
new
construction
activities including the parts of the plaint schedule
property until further orders.
6. The court of sub Judge, Neyyattinkara heard the
application
for
extension
of
time
sought
by
the
appellant for paying the balance court fee. However,
the application was rejected and the file was closed
by the learned sub Judge. The appellant then filed
Regular First Appeal No. 678 of 2011 along with an
application for condonation of delay in filing the
appeal. The High Court dismissed the application for
condonation of delay on the ground that the delay in
filing the appeal was not explained by the appellant
and consequently, dismissed the Regular First Appeal
filed by the appellant. The High Court’s opinion
that
the
delay
in
appellant
filing
sustainable
since
has
the
the
not
Regular
given
any
First
appellant
has
ground
Appeal
is
for
not
categorically
claimed that he was not aware of the rejection of
the suit of the appellant for delayed payment of
court fee by the learned sub Judge.
7. In the light of the facts and circumstances of
the case, the following points would arise for our
consideration:
1.Whether the learned sub Judge was justified
in rejecting the suit for non- payment of
court fee?
2.Was the appellant entitled to condonation
of delay for non- payment of court fee by
the learned sub Judge?
3.Whether
the
rejecting
High
the
Court
application
was
for
right
in
condonation
of delay filed by the appellant against the
decision
of
the
learned
sub
judge
who
rejected the suit of the appellant for non-
payment of court fee?
4.What Order?
Answer to Point no. 1
8.
Section
149
of
the
Civil
Procedure
Code
prescribes a discretionary power which empowers the
Court to allow a party to make up the deficiency of
court fee payable on plaint, appeals, applications,
review of judgment etc. This Section also empowers
the Court to retrospectively validate insufficiency
of stamp duties etc. It is also a usual practice
that the Court provides an opportunity to the party
to pay court fee within a stipulated time on failure
of
which
the
Court
dismisses
the
appeal.
In
the
present case, the appellant filed an application for
extension of time for remitting the balance court
fee which was rejected by the learned sub Judge. It
is the claim of the appellant that he was unable to
pay
the
requisite
amount
of
court
fee
due
to
financial difficulties. It is the usual practice of
the court to use this discretion in favour of the
litigating parties unless there are manifest grounds
of mala fide. The Court, while extending the time
for or exempting from the payment of court fee, must
ensure
bona
Concealment
fide
of
of
such
material
discretionary power.
fact filing
while
application for extension of date for payment of
court fee can be a ground for dismissal. However, in
the present case, no opportunity was given by the
learned sub Judge for payment of court fee by the
appellant
which
he
was
unable
to
pay
due
to
financial constraints. Hence, the decision of the
learned sub Judge is wrong and is liable to be set
aside and accordingly set aside.
Answer to Point no.2
9. In the case of State of Bihar & Ors. v. Kameshwar
Prasad Singh & Anr.1, it was held that power to
condone the delay in approaching the Court has been
conferred
upon
substantial
the
justice
Courts
to
to
parties
enable
by
them
to
disposing
do
the
cases on merit. The relevant paragraphs of the case
read as under:
“11. Power to condone the delay in
approaching the Court has been conferred
upon the Courts to enable them to do
substantial
justice
to
parties
by
disposing of matters on merits. This Court
in Collector, Land Acquisition, Anantnag
v. Mst. Katiji (1987)ILLJ 500 SC held that
the expression 'sufficient cause' employed
by the legislature in the Limitation Act
is adequately elastic to enable the Courts
to apply the law in a meaningful manner
which subserves the ends of justice-that
being the life purpose for the existence
of the institution of Courts. It was
further observed that a liberal approach
1
(2000) 9 SCC 94
is adopted on principle as it is realised
that:
1. Ordinarily a litigant does not stand
to benefit by lodging an appeal late.
2. Refusing to condone delay can result
in a meritorious matter being thrown
out at the very threshold and cause of
justice being defeated. As against this
when delay is condoned the highest that
can happen is that a cause would be
decided on merits after hearing the
parties.
3.
'Every
day's
delay
must
be
explained'
does
not
mean
that
a
pedantic approach should be made. Why
not every hour's delay, every second's
delay? The doctrine must be applied in
a
rational
common
sense
pragmatic
manner.
4.
When
substantial
justice
and
technical
considerations
are
pitted
against
each
other,
cause
of
substantial justice deserves to be
preferred for the other side cannot
claim to have vested right in injustice
being done because of a non-deliberate
delay.
5. There is no presumption that delay
is
occasioned
deliberately,
or
on
account of culpable negligence, or on
account of mala fides. A litigant does
not stand to benefit by resorting to
delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is
respected not on account of its power
to legalize injustice on technical
grounds but because it is capable of
removing injustice and is expected to
do so.
12.
After
referring
to
the
various
judgments reported in New India Insurance
Co. Ltd. v. Shanti Misra [1976] 2 SCR 266,
Brij Inder Singh v. Kanshi Ram (1918)ILR
45 P.C. 94, Shakuntala Devi Jain v. Kuntal
Kumari [1969]1 SCR 1006, Concord of India
Insurance Co. Ltd. v. Nirmala Devi [1979]
118 ITR 507(SC), Lala Mata Din v. A.
Narayanan
[1970] 2 SCR 90,
State of
Kerala v. E.K. Kuriyipe 1981 (Supp)SCC 72,
Milavi Devi v. Dina Nath (1982)3 SCC 366a,
O.P. Kathpalia v. Lakhmir Singh AIR 1984
SC
1744,
Collector,
Land
Acquisition
v. Katiji (1987) ILLJ 500 SC, Prabha
v. Ram Parkash Kalra 1987 Supp(1)SCC 399,
G.
Ramegowda,
Major
v. Sp.
Land
Acquisition Officer [1988] 3 SCR 198,
Scheduled Caste Co-op. Land Owning Society
Ltd. v. Union of India AIR 1991 SC 730,
Binod Bihari Singh v. Union of India
AIR
1993 SC 1245, Shakambari & Co. v. Union of
India AIR 1992 SC 2090, Ram Kishan v. U.P.
SRTC
1994
Supp(2)SCC
507 and
Warlu
v. Gangotribai AIR 1994 SC 466, this Court
in
State
of
Haryana
v. Chandra
Mani
2002(143) ELT 249(SC) held ;
‘......The
expression
'sufficient
cause'
should, therefore, be considered with
pragmatism
in
justice-oriented
process
approach
rather
than
the
technical
detention
of
sufficient
case
for
explaining every day's delay. The factors
which are peculiar to and characteristic
of the functioning of pragmatic approach
injustice oriented process. The Court
should decide the matters on merits unless
the case is hopelessly without merit. No
separate standards to determine the cause
laid
by
the
State
vis-a-vis
private
litigant could be laid to prove strict
standards
of
sufficient
cause.
The
Government at appropriate level should
constitute legal cells to examine the
cases whether any legal principles are
involved for decision by the Courts or
whether
cases
require
adjustment
and
should authorize the officers to take a
decision to give appropriate permission
for settlement. In the event of decision
to file the appeal needed prompt action
should
be
pursued
by
the
officer
responsible to file the appeal and he
should be made personally responsible for
lapses, if any. Equally, the State cannot
be
put
on
the
same
footing
as
an
individual. The individual would always be
quick in taking the decision whether he
would pursue the remedy by way of an
appeal or application since he is a person
legally
injured
while
State
is
an
impersonal machinery working through its
officers or servants.’
To the same effect is the judgment of this
Court
in
Special
Tehsildar,
Land
Acquisition, Kerala v. K.V. Ayisumma
AIR
1996 SC 2750.
13. In Nand
(1995)6 SCC
Kishore v. State of Punjab
614 this Court under the
peculiar
circumstances
of
the
case
condoned the delay in approaching this
Court
of
about
31
years.
In
N.
Balakrishnan
v. M.
Krishnamurthy
2008(228)ELT 162(SC) this Court held that
the purpose of Limitation Act was not to
destroy the rights. It is founded on
public policy fixing a life span for the
legal remedy for the general welfare. The
primary
function
of
a
Court
is
to
adjudicate disputes between the parties
and to advance substantial justice. The
time limit fixed for approaching the Court
in different situations is not because on
the expiry of such time a bad cause would
transform into a good cause. The object of
providing legal remedy is to repair the
damage caused by reason of legal injury.
If the explanation given does not smack
mala fides or is not shown to have been
put forth as a part of a dilatory
strategy, the Court must show utmost
consideration to the suitor. In this
context it was observed in 2008(228) ELT
162(SC) :
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 uncontainable due to a
want
of
acceptable
explanation
whereas in certain other cases,
delay of a 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 revisional jurisdiction, 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
untrammelled by the conclusion of
the lower Court.”
10.
In
the
case
in
hand,
it
is
clear
from
the
evidence on record that the appellant could not pay
court fee due to financial difficulty because of
which his suit got rejected. It is also pertinent to
note that the appellant had moved the Court claiming
his substantive right to his property. The appellant
faced with the situation like this, did not deserve
the dismissal of the original suit by the Court for
non- payment of court fee. He rather deserved more
compassionate attention from the Court of sub Judge
in the light of the directive principle laid down in
Article 39A of the Constitution of India which is
equally applicable to district judiciary. It is the
duty of the courts to see that justice is meted out
to people irrespective of their socio economic and
cultural rights or gender identity.
11. Further, Section 12(h) of the Legal Services
Authorities Act, 1987 provides that every person who
has to file or defend a case shall be entitled to
legal services under this Act if that person is:
“in receipt of annual income less than
rupees nine thousand or such other higher
amount as may be prescribed by the State
Government if the case is before a court
other than the Supreme Court, and less
than rupees twelve thousand or such other
higher amount as may be prescribed by the
Central Government, if the case is before
the Supreme Court”
Further,
Section
12
of
the
Kerala
State
Legal
Services Authorities Rules, 1998 states that:
“12. Any person whose annual income from
all sources does not exceed Rupees Twelve
Thousand
shall
be
entitled
to
legal
services under clause (h) of Section 12 of
the Act”.
Therefore,
affidavit
of
subject
his
to
income,
the
the
submission
court
fee
of
of
an
the
appellant could have been waivered or provided by
the District Legal Services Authority, instead of
rejection of the suit.
12. Further, in the case of State of Maharashtra V.
Manubhai Pragaji Vashi and Others2, it has been held
that:
“17. ...... we have to consider the combined
effect of Article 21 and Article 39A of the
Constitution of India. The right to free
legal aid and speedy trial are guaranteed
fundamental rights under Article 21 of the
Constitution.
The
preamble
to
the
Constitution of India assures 'justice,
social, economic and political'. Article
39A of the Constitution provides 'equal
justice' and 'free legal aid'. The State
shall secure that the operation of the
legal system promotes justice. It means
justice according to law. In a democratic
polity, governed by rule of law, it should
be the main concern of the State, to have a
proper legal system. Article 39A mandates
that the State shall provide free legal aid
by suitable legislation or schemes or in
any other way to ensure that opportunities
for securing justice are not denied to any
citizen by reason of economic or other
disabilities. The
principles
contained
in Article 39A are fundamental and cast a
duty on the State to secure that the
operation of the legal system promotes
justice,
on
the
basis
of
equal
opportunities
and
further
mandates
to
provide free legal aid in any way-by
legislation or otherwise, so that justice
is not denied to any citizen by reason of
economic or other disabilities. The crucial
words are (the obligation of the State)
to provide free legal aid 'by suitable
legislation or by schemes' of 'in any other
way', so that opportunities for securing
justice are not denied to any citizen by
reason of economic or other disabilities.
(Emphasis supplied).......”
13.
Further,
Article
39A
of
the
Constitution
of
India provides for holistic approach in imparting
justice
to
the
litigating
parties.
It
not
only
includes providing free legal aid via appointment of
counsel
for
the
litigants,
but
also
includes
ensuring that justice is not denied to litigating
parties due to financial difficulties. Therefore, in
the light of the legal principle laid down by this
Court, the appellant deserved waiver of court fee so
that
he
could
contest
his
claim
on
merit
which
involved his substantive right. The Court of sub
Judge erred in rejecting the case of the appellant
due to non- payment of court fee. Hence, we set
aside the findings and the decision of the Court of
sub Judge and condone the delay of the appellant in
non-payment of court fee which resulted in rejection
of his suit.
Answer to Point no. 3
14. Having answered Point nos. 1 and 2 in favour of
the appellant, we are inclined to answer point no. 3
as well in his favour.
In
the
case
of
Muneesh
Devi
v.
U.P.
Power
Corporation Ltd. and Ors.3, it was held as under:
“15. In the application filed by her for
condonation of delay, the Appellant made
copious references to the civil suit, the
writ
petition
and
the
special
leave
2013 (9) SCALE 640
petition filed by her and the fact that
the complaint filed by her was admitted
after considering the issue of limitation.
She also pleaded that the cause for
claiming compensation was continuing. The
National Commission completely ignored the
fact that the Appellant is not well
educated and she had throughout relied
upon the legal advice tendered to her. She
first filed civil suit which, as mentioned
above, was dismissed due to non payment of
deficient court fees. She then filed writ
petition before the High Court and special
leave petition before this Court for issue
of a mandamus to the Respondents to pay
the amount of compensation, but did not
succeed. It can reasonably be presumed
that substantial time was consumed in
availing these remedies. It was neither
the pleaded case of Respondent No. 1 nor
any material was produced before the
National
Commission
to
show
that
in
pursuing remedies before the judicial
forums, the Appellant had not acted bona
fide. Therefore, it was an eminently fit
case
for
exercise
of
power
under
Section 24-A(2) of the Act. Unfortunately,
the
National
Commission
rejected
the
Appellant's prayer for condonation of
delay on a totally flimsy ground that she
had not been able to substantiate the
assertion
about
her
having
made
representation to the Respondents for
grant of compensation.”
15. In the case in hand, the High Court, vide its
impugned
judgment
dated
21.03.2012
held
that
the
appellant has not provided sufficient grounds for
delay in filing the appeal. This decision of the
High Court is unsustainable in law. The appellant
has
categorically
stated
that
he
went
to
his
advocate’s office at Neyyattinkara on 24.05.2011 to
enquire about the status of the suit. His advocate
informed him that the learned sub Judge has rejected
the suit on 11.8.2008 for non-payment of balance
court fee. The advocate claimed that he has informed
the same to the appellant through a postal card but
the appellant claims that the same has not reached
him
and
he
was
under
the
impression
that
his
application for extension of time for payment of
court fee will be allowed by the learned sub Judge.
He
further
claimed
that
he
had
applied
for
procurement of the certified copy of the decision of
the learned sub Judge on the same day.
16. The learned senior counsel Mr. K.P. Kylasantha
Pillay,
appearing
on
behalf
of
the
respondents
alleged that the appeal of the appellant before this
court is based on wrong and frivolous grounds. The
material
contention
produced
is
by
totally
them in support
based on the
of
merit
their
of
the
case. Since, we are not deciding the merit of the
case, the material produced by the respondents in
support of their contention becomes irrelevant. We
have condoned the delay in paying the court fee by
the appellant while answering point nos. 1 and 2. We
see no reason in rejecting the application filed by
the appellant for condonation of delay in filing the
appeal before the High Court as well.
17. In view of the aforesaid reasons, the impugned
judgment passed by the High Court is not sustainable
and is liable to be set aside as per the principle
laid down by this Court in as much the High Court
erred in rejecting the application for condonation
of delay filed by the appellant. We accordingly,
condone the delay in filing the appeal in the High
Court as well.
Answer to Point no. 4
18. In view of the reasons assigned while answering
point nos. 1,2 and 3 in favour of the appellant, the
impugned judgment passed by the High Court is set
aside and the application filed by the appellant for
condonation of delay is allowed. Therefore, we allow
the appeal by setting aside the judgments and decree
of
both
the
trial
court
and
the
High
Court
and
remand the case back to the trial court for payment
of court fee within 8 weeks. If for any reason, it
is not possible for the appellant to pay the court
fee, in such event, he is at liberty to approach the
jurisdictional district legal service authority and
Taluk Legal Services Committee seeking for grant of
legal aid for sanction of court fee amount payable
on
the
suit
before
the
trial
court.
If
such
application is filed, the same shall be considered
by such committee and the same shall be facilitated
to the appellant to get the right of the appellant
adjudicated by the trial court by securing equal
justice under
as
provided
Article
39A
of
the
Constitution of India read with the provision of
Section 12(h) of the Legal Services Authorities Act
read with Regulation of Kerala State. We further
direct the trial court to adjudicate on the rights
of the parties on merit and dispose of the matter as
expeditiously as possible.
19.
The
appeal
is
allowed
in
terms
of
the
observations and directions given as above to the
trial court. There will be no order as to costs.
.................................................................................J.
[SUDHANSU JYOTI MUKHOPADHAYA]
.................................................................................J.
[V. GOPALA GOWDA]
New Delhi,
November 25, 2013
No comments:
Post a Comment