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.
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
-----------------------
- 22-
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.=
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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