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Tuesday, November 26, 2013

Apex court allowed the appeal and condoned the delay and remand the matter to lower court for payment of deficit court fee = Bona fide financial constraint is a valid ground for seeking extention of time for payment of court fee - If the plaintiff is unable to pay court fee, 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. = Delay can be condoned not on pure technical points but on equity of justice = When nothing is there to find a fault on the affidavit of the petitioner, it can be considered as a valid ground for allowing the petition = MANOHARAN …APPELLANT Vs. SIVARAJAN & ORS. …RESPONDENTS = http://judis.nic.in/supremecourt/imgst.aspx?filename=40990

    Apex court allowed the appeal  and condoned the delay and remand the matter to lower court for payment of deficit court fee =      Bona fide financial constraint is a valid ground for seeking extention of time for payment of court fee - If the plaintiff is unable to pay court fee, 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.  =
Delay can be condoned not on pure technical points but on equity of justice =
When nothing is there to find a fault on the affidavit of the petitioner, it can be considered as a valid ground for allowing the petition = 

   1. Whether the learned sub Judge was justified in rejecting  the  suit
        for non- payment of court fee?
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 fide  of  such  discretionary  power.  
Concealment  of
material fact while filing 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.

 2. Was the appellant entitled to condonation of delay for non- payment
        of court fee by the learned sub Judge?
 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.
3. Whether the High Court was right in rejecting the  application  for
        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?
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.=

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 as provided under 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.


                    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                                 …APPELLANT

                                     Vs.

SIVARAJAN & ORS.                        …RESPONDENTS







                               J U D G M E N T



V.Gopala Gowda J.

      Leave granted.

2.    This appeal is filed by the appellant questioning the  correctness  of
the judgment and final Order dated 21.03.2012 passed by the  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 [pic]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  of
respondent  no.1.  
The  respondent  no.  1  executed  an  agreement  of  re-
conveyance deed in favour of the appellant  regarding  the  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 [pic]3,03,967/- and  the
court fee was valued at [pic]28,797/-. 
The appellant paid  1/10th  of  the
court fee i.e., [pic]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 appellant  has  not  given  any
ground for delay in filing the  Regular  First  Appeal  is  not  sustainable
since the appellant has 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 High Court was right in rejecting the  application  for
        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 fide  of  such  discretionary  power.  Concealment  of
material fact while filing 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 the Courts to enable them  to  do  substantial
justice to parties by disposing 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  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.


                      XXX          XXX              XXX


      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 Kishore v. State of Punjab  (1995)6  SCC  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, subject to the submission of an affidavit  of  his  income,
the court fee of 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 Others[2], 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 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  produced
by them in support of their contention is totally based on the merit 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 as provided under 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
-----------------------
[1]    (2000) 9 SCC 94
[2]    (1995) 5 SCC 730
[3]    2013 (9) SCALE 640

                           -----------------------
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