Delhi High Court
J.L. Gugnani vs M/S Krishna Estate & Ors. on 21 July, 2011
Author: Gita Mittal
IN THE HIGH COURT OF DELHI
IA No. 12009/2002 & IA No.12012/2002 in CS(OS)
No.2110/2002
Date of decision: July 21, 2011
J.L. GUGNANI. ... Plaintiff
through: Mr. Anil Kher, Sr. Adv.with Mr.
Ankur Bansal and Mr. D.R. Bhatia, Advs.
VERSUS
M/S. KRISHNA ESTATE & ORS. .... Defendants
through: Ms. Mukta Sharma, Adv.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
1. Whether reporters of local papers may be
allowed to see the Judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the
Digest? Yes
GITA MITTAL, J
1. I hereby propose to decide IA No.12012/2002 filed by the
plaintiff seeking condonation of delay in refiling the suit returned
by the registry with office objections after its initial presentation.
At first blush, this application gives an impression that it is an
innocuous application and the prayer made therein deserves to
be granted. However, the vehemence of the opposition and a
little deeper probe brings certain important issues which bear
consideration, to the fore.
2. The plaintiff/applicant brought a suit for specific
performance of an agreement dated 6th June, 1996 executed
between the parties to sell and purchase land admeasuring 110
bighas situated in Village Wizarbad in District Gurgaon, Haryana.
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 1 of 32
The plaintiff has claimed that out of the total consideration of
Rs.1,40,000/- it had paid an amount of Rs.1 crore vide cheques
which were replaced by four pay orders, each for the sum of
Rs.25 lakhs. The plaintiff contends that the defendant was
unable to transfer the said land for the reason that it was not able
to obtain title in its favour from the owners of the village. The
defendants also refused to return the amount of Rs.1 crore
received as earnest money with interest necessitating the suit.
It may be noted here that the defendant strongly contests
the above assertions and has even filed a defence to the same.
3. The plaint dated 10th June, 2002 seeks the following
prayers:-
"a) pass a decree for specific performance of the
agreement to sell dated 06.10.1996 against the
defendants and the said defendants be directed to
transfer and convey the right, title, interest and
possession of the property being land measuring 16
bighas 18 biswas comprised in Mustil No. 182, Killa
No. 12/1 [3-6], 19/2 [3-6], 21/2 [1-14], 22/1 [3-4]
and Mustil No. 181, Killa No. 7/2 [0-16], 24 [4-12]
situated at Villae Dera Mandi, Tehsil Kauz Khas, New
Delhi;
b) direct the defendants to produce the original title
deeds of the property being land measuring 16
bighas 18 biswas comprised in Mustil No. 182, Killa
No. 12/1 [3-6], 19/2 [3-6], 21/2 [1-14], 22/1 [3-4]
and Mustil No. 181, Killa No. 7/2 [0-16], 24 [4-12]
situated at Villae Dera Mandi, Tehsil Kauz Khas, New
Delhi;
or in the alternative, direct the defendants to pay
a sum of Rs.1,40,00,000/- to the plaintiffs;
c) direct the defendants to pay interest @ 18% per
annum from 10.06.1999 till the actual payment is
made to the plaintiffs;
d) direct the defendants to pay costs of the suit;"
4. The plaint was signed and verified on 10th June, 2002. The
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 2 of 32
accompanying affidavit of Sh. J.L. Gugnani (the plaintiff) was
sworn on 6th June, 2002. The plaint was presented in the
Registry on 6th of July, 2002.
5. In para 14 of the plaint, it was stated that the value of the
subject matter of the suit for the purposes of court fee and
jurisdiction is Rs.1.40 lakhs and accordingly court fee is appended
thereon.
6. Apart from the signatures and verification by the plaintiff,
the plaint was signed by learned counsel as well.
7. Alongwith the suit, the plaintiff filed two applications being
IA No. 12009/2002 under Order 39 Rule 1 & 2 of the CPC seeking
interim injunction, as well as IA No. 12010/2002 under Section
149 of the CPC praying for exemption from filing the court fee.
8. The suit was returned by the Registry of this court to the
plaintiff on the 6th of July, 2002 with office objections. Thereafter,
the suit came to be refiled only on 19th December, 2002. Apart
from the two previously filed applications, this time the plaintiff
also filed IA No. 12012/2002 (the application under consideration)
under "the High Court Rules read with Section 151 of the Code of
Civil Procedure" praying for condonation of the delay in refiling.
This application is under consideration.
9. The result of this application rests on the answer to two
questions, the first being whether the plaintiff has explained the
delay in removing the defects and refiling of the suit by reasons
and circumstances which are bonafide and reliable, entitling him
to the condonation thereof. The second question which has
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 3 of 32
arisen is as to whether the failure on the part of the plaintiff to
make good the deficiency in the court fee within the time granted
by the court; or to explain the same or to seek condonation by
making an appropriate application, would disentitle him to
exclusion of the period for the purposes of limitation.
10. So far as the first question is concerned, learned counsel for
the defendant has vehemently opposed the condonation of delay
in refiling the suit, urging that the delay in the instant case is not
bonafide or by oversight but is purely on account of the
deliberate malafide acts and deeds of the plaintiff.
11. The application seeking condonation of delay in refiling the
suit is opposed on the ground that the plaintiff has failed to
explain the delay in refiling. The explanation propounded is
challenged on the ground that it is vague, false, negligent and
malafide. In this regard, reliance has been placed on the
pronouncement of this court reported at AIR 1987 Delhi 90
Smt. Parvati & Ors. vs. Sh. Anand Parkash and 38 (1989)
DLT 10 S.V. Khadekar vs. Shri Ram Scientific Inds.
Research.
12. Before examining these judicial precedents, reference may
be made to the rule position so far as scrutiny by the Registry of
papers which are filed is concerned.
13. The Delhi High Court Rules relating to the original side
framed in exercise of power conferred under section 122 and 129
of the Code of Civil Procedure, 1908 and Section 7 of the Delhi
High Court Act, 1967 came into force in 1967.
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 4 of 32
These rules were amended with effect from 1st December,
1988.
14. So far as scrutiny, return and refiling of the plaint, petition,
application or proceeding of the matters on the original side is
concerned, the same is governed by Rule 2 of Chapter 4 of the
Delhi High Court Original Side Rules which reads as follows :-
"Rule-2 Endorsement and scrutiny of documents.
"(a) The officer in-charge of the filing-counter shall
endorse the date of receipt on the plaint, petition,
application or proceedings and also on the duplicate
copy of the index and return the same to the party. He
shall enter the particulars of all such documents in the
register of daily filing and thereafter cause it to be sent
to the office concerned for examination. If on scrutiny,
the document is found to be defective, such document
shall, after notice to the party filing the same, be placed
before the Registrar. The Registrar may for sufficient
cause return the said document for rectification or
amendment to the party filing the same, and for this
purpose may allow to the party concerned such
reasonable time as he may consider necessary.
(b) Where the party fails to take any step for the removal
of the defect within the time fixed for the same, the
Registrar may, for reasons to be recorded in writing,
decline to register the document.
(c) Any party aggrieved by any order made by the
Registrar under this rule may, within fifteen days of the
making of such order, appeal against it to the Judge in
Chambers."
(underlining supplied)
15. Rule 5 in Chapter I Part A(a) of Volume V of the Delhi High
Court Rules and Orders dealing with judicial business including
the presentation and reception of appeals, petitions and
applications for review and revision was substituted to read as
under :-
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 5 of 32
"Rule 5(1) The deputy Registrar/Assistant Registrar, In-
charge of the Filing Counter, may specifiy the objections
(a copy of which will be kept for the Court Record) and
return for amendment and re-filing within a time not
exceeding 7 days at a time and 30 days in aggregate to
be fixed by him, any memorandum of appeal, for the
reason specified in Order XLI, Rule 3, Civil Procedure
Code.
Rule 5(2) If the memorandum of appeal is not taken
back, for amendment within the time allowed by the
Deputy Registrar/Assistant Registrar, in charge of the
Filing Counter under sub-rule (1), it shall be registered
and listed before the Court for its dismissal for non-
prosecution.
Rule 5(3) If the memorandum of appeal is filed beyond
the time allowed by the Deputy Registrar/Assistant
Registrar, in charge of the Filing Counter, under sub-rule
(1) it shall be considered as fresh institution.
Explanation: The period of seven days or thirty days
mentioned above shall commence from the date, the
objections are put on the notice board.
Note: The provisions contained in Rule 5(1), 5(2) and
5(3) shall mutatis mutandis apply to all matters, whether
Civil or Criminal."
16. It would appear from a reading of the rules that there is a
clear distinction between the rules for refiling on the original side
and the rules in appellate and other jurisdictions. A plaint is
presented at the filing counter whereupon the date of
presentation is endorsed by the Registry. If upon examination,
the papers which are presented are found defective, the same
after notice to the parties, are placed before the Registrar. The
Registry may cause return of the documents for rectification or
amendment to the party which filed the same and also allow such
reasonable time for this purpose as may be considered
necessary. In terms of rule 2(b) of Chapter 4 of the Original Side
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 6 of 32
Rules, upon delay in refiling or re-presentation on the original
side, the Registrar may decline registration of the document. In
such eventuality, an appeal would lie against the order.
In other jurisdictions, in terms of Rule 5(3) of Chapter I of
Volume V of the Rules, such re-presentation is to be treated as a
fresh institution.
17. In AIR 1987 Delhi 90 Smt. Parvati & Ors. vs. Sh.
Anand Parkash on the issue of refiling, the court observed as
follows :-
"20. The appellant in the said case had taken 85
days to refile the appeal after removing the defects
pointed out by the Registry. The position in the
instant case is still worse as the appellants took
nearly nine months in refiling the appeal and no
explanation for this inordinate delay except the
vague averment that the file was misplaced is
forthcoming. Indeed, the learned counsel for the
appellants did not try to justify the delay in re-
presenting the appeal and his main plank was that
the original order of the Deputy Registrar in
returning the appeal was not warranted by law.
xxx
22. The upshot of the whole discussion, therefore, is
that there is absolutely no reason for condoning the
delay in refiling this appeal. It is accordingly
dismissed."
18. The observations of this court in the judgment reported at
38 (1989) DLT 10 S.V. Khadekar vs. Shri Ram Scientific
Inds. Research may usefully be extracted and read as follows :-
"3. I do not agree with any of his submission. The
fact remains that the objections pointed by the
Registry were not only formal but substantive in
nature. One of the objections was that the certified
copy of the lower court was not duly stamped. Rule
13 of Chapter I (High Court Rules & Orders), Vol. V
specifically lays down that the improperly stamped
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 7 of 32
documents remain invalid unless filed through
mistake and time extended for making up the
deficiency. In this case, no such application was
moved nor any order from the court was sought.
4. Learned counsel for the respondent has relied
upon the Judgment of this Court Smt. Parvati & Ors.
v. Shri Anand Parkash Air 1987 Delhi 91', wherein
there was 8 months' delay in refiling the appeal. The
sum and substance of that Judgment reads as under;
"S. 5 of the Limitation Act would not be attracted to a
case where an appeal/objection has been initially
filed within the prescribed period of limitation and
the same does not suffer from any infirmity of a vital
nature but there is delay in refiling the appeal after
removing the defects as pointed out by the Deputy
Registrar. The rigours of law of limitation regarding
condonation of delay would not apply to such a
situation and the court has simply to satisfy itself
that there is a plausible explanation for the delay.
But it cannot be said 'that there is no sanction behind
R. 5(1) of Punjab High Court Rules and Orders and
the Court will be powerless to reject the
memorandum of appeal or impose any other
appropriate penalty if the appellant behaves in a
totally negligent, reckless or erratic manner in not
refiling the appeal after removing the defects within
a reasonable time. Thus where the appellants took
nearly nine months in refiling the appeal and no
explanation for this inordinate delay except a vague
averment that the file was misplaced was
forthcoming the appeal was liable to be rejected".
(Emphasis supplied)
19. It is noteworthy that these two judicial pronouncements
were rendered in appellate jurisdiction. However, an important
distinction has been drawn in these pronouncements between
defects of substantial nature and defects otherwise. It was
clarified that if the appeal/objection as was initially filed within
the prescribed period of limitation, did not suffer from any
infirmity of a vital nature but there was delay in re-filing the
appeal after removal of the defects, the rigors of the law of
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 8 of 32
limitation regarding condonation of the delay would not apply
and the court would simply satisfy itself that there was an
explanation for the delay. In such an eventuality, it was held that
appeal having been filed within limitation and the Registry
pointing only a formal defects in its presentation, refiling of the
appeal cannot entail dismissal as time barred if the compliance
had been made within the period assigned for the purpose. It
was further held that in case of a delay, and the defects which
were pointed out being only formal, the court would only consider
whether there was bona fide explanation for the delay.
20. A distinction was drawn between presentation of the plaint
and the admission of a plaint in AIR 1986 Bombay 353 Union
Bank of India Vs. M/s Sunpack Corporation wherein the
court held as follows:-
"After the presentation the plaint is
scrutinized. If there are any defects in the same,
the plaintiff is required to remove them. The
removal of defects is a matter of procedure. It is
only after the defects are removed that it
becomes eligible for any entry and a number in
the register of suits. So long therefore as the
plaint is not admitted and entered in the register
of suits all defects including that of the absence of
leave under the said clause can be removed
without returning the plaint. There is no question
of returning the plaint which is not admitted. It
simply remains under objection till it is admitted."
21. A similar objection that the suit was barred by limitation on
account of the failure of the plaintiff to remove the defects
pointed out by the Registry within the time granted and its re-
filing after the expiry of the period of limitation arose for
consideration before this court in the judgment reported at ILR
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 9 of 32
(1995) II Delhi 60 Shri Ashok Kumar Parmar Vs. D.C.
Sankhla. In this judgment, in para 10, it was held as follows:-
"10. Looking to the language of the Rules
framed by Delhi High Court, it appears that the
emphasis is on the nature of defects found in
the plaint. If the defects are of such character
as would render a plaint, a no-plaint in the eye
of law, then the date of presentation would be
the date of refiling after removal of defects. If
the defects are formal or ancillary in nature not
effecting the validity of the plaint, the date of
presentation would be the date of original
presentation for the purpose of calculating the
limitation for filing the suit."
22. An application of the above principles would show that it
may also require to be examined as to whether the defects which
were pointed out by the Registry were formal or otherwise;
whether the defects have been removed within the period fixed;
and, if not, whether there is a bonafide explanation for the delay.
23. In 1998 (V) AD (Delhi) 634 S.R. Kulkarni Vs. B. Birla
VXL Limited the principles have been laid down in para 8 & 9. It
has been held that the question of condonation of delay in refiling
of an application has to be considered from a different angle and
viewpoint as compared to consideration of condonation of delay
in initial filing. The court reiterated the above principle that delay
in refiling is not subject to the rigorous tests which are usually
applied in excusing the delay in a petition filed for condonation
under section 5 of the Limitation Act. The case related to
condonation of delay in refiling an application for leave to defend
in a summary suit. This application was rejected as belated by
the learned Single Judge. The Division Bench observed that the
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 10 of 32
appellant had been casual in his approach. However, there was
no mala fide intention on the part of the appellant to delay the
proceedings. On the facts of the case, the court took the view
that ends of justice would be met if the delay in refiling the
application for leave to defend is condoned on payment of costs
by the appellant to the respondent.
24. In the instant case, the delay of almost six months in refiling
is admitted. It has been urged by learned counsel for the
defendant that even if it were to be assumed for the sake of
arguments that the defects pointed out by the Registry were
formal, the plaintiff has completely failed to make out a case for
condonation of delay. It is, therefore necessary to examine the
reasons and explanation rendered by the plaintiff for the delay in
refiling in the light of the above principles.
25. It is noteworthy that after the plaint was returned with office
objections in July, 2002, the suit was refiled only on 19th
December, 2002. The plaintiff has stated therein that the suit
was earlier filed through a counsel, namely, Mr. S.K. Sahijpal,
Advocate which was received back in his office as certain
objections were raised by the Registry. It was further submitted
that since there were some renovation work going on in the office
of the said counsel, the file pertaining to the suit got misplaced
and it was only traced out some time in the middle of December,
2002 when the same was returned back to the plaintiff. In
support of this application, the plaintiff has enclosed an affidavit
of the clerk of Mr.S.K. Sahijpal, Advocate as well as of the court
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 11 of 32
clerk of the counsel who had filed the suit.
26. Learned counsel for the defendant has pointed out that
there is no reference to Mr. S.K. Sahijpal, Advocate anywhere on
the record of the case. The plaint was not signed by Mr. S.K.
Sahijpal, Advocate. The accompanying index does not bear his
name or signatures. Learned counsel for the defendants has
vehemently urged that there was no change in the counsel
between filing and refiling the suit. Mr. S.K. Sahijpal, Advocate
has never put in appearance in the matter on any date of hearing
at all.
27. Learned counsel for the defendant has urged at some
length that the application gives no dates between which the
renovation was going on; when the file was misplaced or when it
was traced out, other than a vague reference to the file being
traced out in the "middle of December, 2002".
28. The application and the affidavit of the clerk of Mr. S.K.
Sahijpal. Advocate are both dated 3rd December, 2002. The
application was obviously drafted in the beginning of December,
2002, in any case on or before 3rd December, 2002 (the date of
attestation of the affidavit) and therefore, the reason given in the
application that the file was traced out in the middle of 2002 is
clearly without any basis. The second affidavit of the clerk of the
counsel who filed the plaint, which has also been enclosed with
the IA No. 12012/2002 is dated 19th December, 2002. The
application fails to render any explanation for the delay between
3rd December, 2002, when the first affidavit was also attested, to
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 12 of 32
19th December, 2002, when the refiling was effected.
The plea that the file was traced out in the middle of
December, 2002 is clearly incorrect and without basis.
29. For the same reason, the reliance placed by Mr. Anil Kher,
learned senior counsel for the plaintiff on the pronouncement of
the Supreme Court in AIR 1978 SC 335 Indian Statistical
Institute vs. Associated Builders & Ors. is misplaced. No
absolute proposition has been laid down by the court that an
application for condonation of delay or extension of time for
taking statutorily mandated steps has to be allowed in every
case. The narration in this pronouncement shows that the court
had concluded that the counsel for the appellant was negligent
and was exerting illegal and unethical pressure upon the
appellant unjustifiably for more money. As such, the appellant
was completely helpless in taking steps for removing the
objections and refiling the same. In this background, the court
concluded that, on the facts disclosed in support of the plea for
condonation of delay and for extension of time, sufficient ground
was made out for condoning the delay in filing the objections and
the Supreme Court took the view that the attitude of the High
Court was unsympathetic. The court had specifically concluded
that the delay was not due to any want of care on the part of the
appellant but due to circumstances completely beyond his
control.
30. It cannot be disputed that the manner in which the plaintiff
has conducted the instant case is grossly negligent and there is
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 13 of 32
certainly substance in the contention of learned counsel for the
plaintiff that the reasons propounded for explaining the delay
inspire no confidence at all.
31. Even if it could be held that the delay in refiling was
bonafide and deserved to be condoned, the defendants have
raised yet another important issue. It is now necessary to
consider the second objection which has also been pressed by
learned counsel for the defendant. It is urged that the plaintiff
did not comply with the order dated 20th December, 2002
permitting him make good the deficiency in the court fee also
within the time permitted. The submission is that even if the
delay in refiling is condoned, the suit against the defendants has
become hopelessly barred by limitation, given the delay in
making good the deficiency in the court fee as well.
32. The suit and the applications were listed before the court for
the first time on 20th December, 2002. On IA No. 12010/2002
(under Section 149 of the CPC), a submission was made on behalf
of the plaintiff that the deficient court fee would be deposited
within two days and the court directed that the same should be
deposited accordingly.
33. It is pointed out that this submission was also contrary to
the averments in the application dated 6th June, 2002.
34. As per the stamp of the Registry, which is not clearly
legible, the court fee has been deposited either on the 3rd or 9th
January, 2003. Ms. Sharma, learned counsel for the defendants
contends that the court fee was not deposited even on reopening
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 14 of 32
of the court after the winter recess on 2nd of January, 2003, and
whereupon the suit is barred by limitation.
35. No explanation or prayer for condonation of the delay in
compliance with the order for making good the deficiency in the
court fee is made in the present proceedings.
36. Certain judicial precedents wherein the principles which
would govern an application seeking condonation of delay in
making good the deficiency in or payment of the court fee have
been considered, may be noticed. In this regard, reference can
usefully be made to the pronouncement of this court reported at
AIR 1968 Delhi 183 Custodian of Evacuee Property, New
Delhi vs. Rameshwar Dayal & Ors. In this case the appeal
was dismissed, holding it to be barred by limitation as the order
appealed against did not bear proper court fee. A revision
petition had been filed instead of an appeal. The learned Single
Judge referred the question to the Full Bench. The Full Bench
ruled that the revision was not maintainable and an appeal had to
be preferred. The revision petition pending before the Single
Judge was not converted to an appeal as it was felt that the
appeal was maintainable before the lower appellate court and not
in the High Court. It was contended that in view of the impugned
order not being affixed with the proper court fee, a valuable right
had accrued in favor of the opposite successful party as an
appeal preferred without requisite court fee was no appeal in the
eyes of law and the same had, therefore, become barred by
limitation. The appellant made an application under Section 149
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 15 of 32
CPC to make good the deficiency in court fee. The learned
additional district judge took the view that without a prayer to
extend limitation, he could not permit the deficiency to be made
good. He also did not consider the plea that the court fee as was
originally required to be paid in 1947, had been affixed. Chief
Justice I.D. Dua allowed the appeal holding that "The discretion
conferred on the court by Section 149 is normally expected to be
exercised in favor of the litigant except in cases of contumacy or
positive mala fides or reasons of a similar kind. The question of
bona fides has in this connection to be considered from the point
of view of its definition as contained in the General Clauses Act
and not as contained in the Limitation Act. A thing should be
presumed to be done bona fide if it is done honestly, whether it is
done negligently or not, for the purposes of judging whether the
discretion under Section 149 should or should not be exercised in
favor of the litigant."
37. On the same issue, the pronouncement of this court
reported at 1975 RLR 35 Parma Nand vs. Kamla Sethi
deserves to be usefully noticed. In this case, the landlady had
sought eviction of tenants on various grounds but not on default
of payment. The plea of fixation of standard rent raised by the
tenant was, therefore, an independent application, requiring
court fee of Rs.13/-. The appellant did not affix any court fee on
this application. The appellant was asked to pay court fee within
10 days. He paid it on the 14th day, seeking condonation of delay
by pleading that his clerk was under the impression that court fee
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 16 of 32
was required to be paid within 15 days. The Rent Controller
dismissed the application holding that he had failed to act with
due care and attention and sufficient cause was not made out.
The Rent Control Tribunal confirmed the order. The High Court in
second appeal observed as under and outlined the approach to
be adopted:-
"7. It is well settled that the matter of court fees,
whether of its non-payment, deficit payment or delay in
payment, is not a matter between the parties but is a
matter between the revenue on the one hand and the
party, which had made default in the payment of court
fees, on the other. It is equally well settled that the
provisions of Sections 148 and 149 are much wider in
their ambit and have to be liberally construed and any
default or delay in the payment of court fee should
ordinarily be condoned. Reference may be made in this
connection to the observations of the Supreme Court in
the case of Mahanth Ram Dass Vs . Ganga Das-
[1961]3SCR763 and of this Court in the case of
Custodian of Evacuee Property, New Delhi Vs .
Rameshwar Dayal and others, : AIR1968Delhi183 . In the
latter decision, it had been held that the discretion
conferred on the Court by Section 149 is normally
expected to be exercised in favor of the litigant except in
cases of contumacy or positive mala fides or reasons of a
similar kind and that the question of bona fides has to be
considered from the point of view of its definition as
contained in the General Clauses Act and not as
contained in the Limitation Act so that a thing should be
presumed to be done bona fide if it is done honestly,
whether it is done negligently or not, for the purpose of
judging whether discretion under Section 149 should or
should not be exercised in favor of the litigant. The
aforesaid decisions of this Court was based on an earlier
decision of the Full Bench of the Lahore High Court in the
case of Jagat Ram Vs. Misra Ram and another AIR 1938
Lahore 361, in which it had been pointed out that the
discretion conferred on the Court by Section 149
was normally expected to be exercised in favor of
the litigant except in cases of contumacy or
positive mala fide or reasons of a similar kind and
that the question of bona fies in this connection had to
be considered in the sense that word is used in the
General Clauses Act and not as used in the Limitation
Act. The same principle would apply in the
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 17 of 32
administration of Section 148 of the Code of Civil
Procedure.
8. It is thus clear that when confronted with the plea that
the delay of four days in the payment of court fees
should or should not condoned, the proper approach
of the Courts below ought to have been to put
themselves to an enquiry, if in dealing with the
matter the appellant was acting bona fide, that is,
honestly and without any mala fide motive or
whether he was acting contumaciously, in that, it
persisted in non-payment of the court fees in spite
of a number of opportunities having been granted
for the purpose. It was not disputed before me that the
plea for condonation was at no stage resisted on the
ground of mala fide. It was irrelevant, in that view of the
matter, for the Courts below to embark upon an enquiry
if in dealing with the matter, the appellant or his agent
or his counsel or counsel's agent acted diligently or
negligently. This wrong approach to the problem on the
part of the Courts below has clearly vitiated both the
orders and the same must, Therefore, be set aside."
(Underlining furnished)
38. A similar issue had arisen before the High Court of Kerala in
the judgment reported at AIR 1994 Kerala 405 V.O. Devassy
vs. Periyar Credits & Anr. In this case, the suit was based on a
promissory note dated 9th March, 1984 and it had been presented
on 9th March, 1987. It was returned on the same date day for
representation after curing the defect, viz., insufficiency of court
fee. The plaint was re-presented on 24th March, 1987 with the
deficit court fee. It was contended that the suit had become
barred by limitation and a valuable right had accrued to the
defendant of the suit being barred by the date on which the
deficit court fee was paid. The High Court of Kerala in this case
considered the case law as also the effect of order permitting
making up of the deficiency under Section 149 of the CPC, on the
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 18 of 32
plea of limitation. Principles governing the sound exercise of
discretion were enumerated. The Court also considered the
provisions of Order VII Rule 11 CPC, which enjoins upon the Court
to grant opportunity or time to make up the deficiency under
Rule 11(c) of Order VII CPC, before the plaint can be rejected
under the said provision. The learned Single Judge has succinctly
summed up the legal position on this issue as under:-
"16. The principles emerging from the aforesaid
decisions can be stated thus: Section 149, CPC
empowers the Court to allow any person by whom court-
fee is payable to pay the whole or part, as the case may
be, of such court fee. Upon such payment the documents
in respect of which such fee is payable shall have the
same force and effect as if such fee had been paid in the
first instance. Section 149 has to be treated as an
exception to Sections 4 and 6 of the Court Fees Act,
19\870 and serves as a proviso to those sections by
allowing the deficit to be made good within the time
fixed by the court. But the power is subject to the
discretion of the court to be exercised in accordance
with judicial principles and cannot be claimed as of right.
If the court has received the deficit court-fee and
admitted the plaint or the court has impliedly extended
the period, the payment of deficit shall take effect from
the date of presentation of the plaint or appeal, as the
case may be. The words "at any stage" in Sec. 149
contemplates that the deficiency can be ordered to be
made good even after the period of limitation for filing
appeal or the suit has expired. The discretion can be
exercised even in the case of a plaint without any court-
fee. When the court allows the plaintiff or the appellant
time to pay deficit court-fee in exercise of its discretion,
the other party cannot attack the order on the ground
that it takes away his right to plead the bar of limitation;
nor can he claim to have derived a vested right by the
non-payment of the court-fee. Under the latter part of
Sec. 149 the defective plaint or appeal memorandum is
validated with retrospective effect if the deficit court-fee
is subsequently made up. The power to permit the party
to pay the deficit court-fee is not in any way affected by
any bar of limitation. The section is general in its terms
and applies to all documents chargeable with court fee
under the Court-fees Act including plaints, appeal
memorandum etc.
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 19 of 32
17. Under Order VII, Rule 11(c) the court is bound to
grant some time to supply the deficit court-fee on a
plaint insufficiently stamped. The plaint is liable to be
rejected under that sub-rule only if the plaintiff has failed
to supply the requisite stamp paper within the time as
required by the Court. The court has therefore an
obligation to require the party to make good the
deficiency in the case of a plaint. The discretion
conferred on the court under Sec. 149 is over and above
this obligation under Rule 11 of Order 7. In the case of
an appeal the discretion under S. 149 applies. The
proper provision under which time may be granted or
extended is Sec. 149 and not Order VII, Rule 11 which
only states the circumstances in which the plaint shall be
rejected. In other words, Rule 11 of Order VII is not an
enabling provision, but only a disabling one."
(Underlining furnished)
39. Mr. Anil Kher, learned senior counsel for the plaintiff has
placed reliance on the pronouncement of this court in 2003 (69)
DRJ 369 Sushil Kr. Raut vs. Virender Bhatnagar Sansathan
& Anr. This case is clearly distinguishable on facts. The court
has clearly noted that even though, the re-filing was delayed and
the plaintiff was negligent in not making an application for
extension of time in refiling and for condonation of delay and
extension of time for making good the deficit court fee, as on the
date of re-filing, the suit was still within a limitation. The suit had
been originally filed on 10th October, 2002 and it was concluded
that the suit could be filed up to 6th December, 2002. The plaintiff
had sought extension of time for making good the deficient court
fee which was granted.
To explain the delay in the case of Sushil Kumar Raut
(supra), the plaintiff had stated that it was his inability to
arrange for the requisite funds which has resulted in the delay in
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 20 of 32
deposit of the court fee. This explanation was accepted and in
para 17 of the pronouncement, the court observed as follows :-
"17. The rules of procedure fixing a stipulated period
within which defects are to be removed are intended
to avoid delay by litigants and to ensure
promptitude. These are not intended to be punitive
or to render the Court powerless upon expiry of
stipulated period, to do justice when required."
40. So far as Section 149 of the CPC is concerned, the binding
principles with regard thereto have been culled out in Sushil Kr.
Raut (supra) as follows :-
" i) Section 149 CPC has to be interpreted and given
effect to in a liberal manner; ii) the payment of deficit
court fee is a matter between the State i.e. Revenue and
the plaintiff; iii) the effect of allowing an application
under Section 149 CPC is as if the deficit court fee stood
paid on the date of initial presentation; iv) while judging
whether the application under Section 149 CPC should
be allowed or not the same has to be tested on the touch
stone of whether the plaintiff acted bona fide as per the
definition of expression in General Clauses Act and not
as per the Limitation Act; v) Relief is to be denied to the
plaintiff if he did not act bona fide or his conduct was
contumacious. Relief is not to be denied even though he
may not have been diligent or had even been negligent."
After considering the facts of the case including the
circumstances in which delay had occurred, in Sushil Kumar
Raut (supra) the court observed that there was no element of
malafide or contumacy in the plaintiff's conduct. However, there
was delay in moving the application for condonation of delay and
consequently, the court extended the time for making up the
deficiency in the court fee up to the date it was actually
deposited.
41. In the judgment reported at AIR (39) 1952 Vindhya
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 21 of 32
Pradesh 12 Sukhnandan Prasad vs. Baburam Maheshwar
Lal, the court had occasion to consider a similar objection when it
was observed as follows :-
"13. The proper way of ascertaining the date of
institution is to find out, whether, while tendering the
plaint the plaintiff has done all that he has to do in
compliance with Orders 4, 6 and 7. If he has done
this, and has nothing more to dos, then the tendering
of the plaint to the proper officer should be treated
as institution. Any delay in office, for no laches of
the plaintiff, should naturally not be put at his door.
If on the other hand, there is some defect to be
removed, or some deficiency in the Court-fee to be
made up, then it becomes an important question
whether the suit is instituted on the date of the
tender, or on the date the defect is remedied by the
plaintiff. When the Court grants time for the removal
of the defect, and the defect is remedied, then the
suit would normally be deemed to have been
instituted not on the latter day but the day of the
tendering itself, because the Court in its discretion
has, as it were, condoned the delay. The delayed
payment of the court-fee, S.149 of the Civil P.C., is
an instance to the point. This condonation of the
time taken to remove defects is at the discretion of
the Court; but it cannot exercise it 'ex-parte' so as to
deprive the defendant of any right he might have
acquired in this interval under the law of limitation.
At all events the other party should have the right of
urging that the court's granting time for removal of
defect has not affected the advantage he might have
gained in the interval."
(Underlining supplied)
42. Mr. Anil Kher, learned senior counsel for the plaintiff has
vehemently urged that this court was adequately empowered to
extend the time to comply with any direction made by the court.
In this regard, reliance has been placed on the pronouncement of
the Supreme Court reported at AIR 1961 SC 882 Mahanth
Ram Das vs. Ganga Das. In this matter, the court was
concerned with an order passed by a Bench of the High Court
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 22 of 32
while deciding an appeal in favour of the appellant by a
peremptory order premised on deficient court fee. The appellant
had made an application for extension of the time before the
time which was fixed had run out. However this application came
for hearing before the Division Bench after the period which has
been fixed had expired. The application was dismissed by the
High Court for the reason that the appeal had been already
dismissed as the amount was not paid within the time given. In
this background, the Supreme Court observed that Sections 148,
149 and 151 clothed the High Court with ample power to do
justice to the litigant if sufficient cause was made out for
extension of time. The court held that this provision does not
clothe the court with the power to exempt payment of court fee.
Further the power under Section 149 of the CPC cannot be
exercised contrary to the specific mandate contained in the Court
Fees Act and Order VII, Rule 11 CPC; that Section 149 is a sort of
transitory provision to take care of an interim period.
43. The principles laid down by the Supreme Court bind.
However, the same have no application to the instant case
inasmuch as this court has not been called upon to consider a
prayer for extension of time for complying with an order of the
court and no application is before this court for extending the
time in complying with the order dated 20 th December, 2002
granting time to the plaintiff to deposit the court fee.
44. Though the plaintiff has referred to the agreement to sell as
being dated 6th October, 1996 in the plaint, however, perusal of
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 23 of 32
the documents would show that the agreement to sell is dated
10th June, 1999. The plaintiff has also filed an application under
order 6 Rule 17 of the CPC being IA No. 7112/2004 seeking leave
to correct the date of the agreement to sell to read as 10th June,
1999 instead of 6th October, 1996 as has been originally
mentioned.
45. It has been pointed out by Ms. Mukta Sharma, learned
counsel for the defendant, that the statutory limitation of three
years for filing a suit for specific performance of the agreement
dated 10th June, 1999 expired on or about 10 th June, 2002. The
10th of June, 2002, a Saturday, was the last working day for the
registry of the court before the commencement of summer
vacations.
46. In this background, the suit was filed on the 6th of July, 2002
on reopening of the court after the summer vacations with
deficient court fee, the application under Section 149 of the CPC.
47. In support of the objection, Ms. Mukta Sharma, learned
counsel for the defendant has pointed out certain pleadings of
the plaintiff in its applications. The court's attention is drawn to
IA No. 12010/2002 (under Sections 149 and 151 of the CPC which
was dated 6th June, 2002 and accompanied by an affidavit sworn
on the same date) whereby the plaintiff sought exemption from
affixing the court fee. In para 2 and 3 of this application, the
plaintiff had stated as follows:-
"2. That the plaintiff has already applied for
obtaining the court fees before the Registry of this
court and undertakes to file the same as and when
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 24 of 32
the same is made available to the plaintiff.
3. That due to the urgency in the matter, the
plaintiff is filing the present suit without court fees
and undertakes to file the same within 3-4 days
before this court."
48. So far as the court fee on the plaint is concerned, the
plaintiff had originally affixed court fee of only Rs.6/-. Learned
senior counsel for the plaintiff urges that the plaintiff only sought
leave to make good the deficiency.
49. It is noteworthy that in IA No. 12010/2002 was filed by the
plaintiff along with the plaint, it was stated that the plaintiff had
already applied for the court fee and an undertaking was given to
file the court fee within three or four days of the filing of the suit.
This averment was also clearly false inasmuch as court fee has
been obtained only on 30th December, 2002. Despite the
aforenoticed averments, the plaintiff had failed to obtain the
court fee for almost seven months and the above request was
made.
50. Learned counsel submits that the 21st of December, 2002
was the last working day of the court before the winter vacations.
For this reason, the plaintiff refiled the case on the 19 th of
December, 2002 so that it was listed on the 21st, the last date.
As the plaintiff in the instant case had filed the application
for condonation of the delay in the plaint being re-presented, the
suit came to be listed before the court on the 21 st of December,
2002.
51. It has been noted above, that the plaintiff had made a false
averment in IA no.12010/2002 that court fee stood applied for. A
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 25 of 32
contradictory submission was made on 20th December, 2002
before Court.
52. So far as the discretion to grant an opportunity to make
good deficiency in court fee is concerned, the same was
exercised by this court on the 21 st of December, 2002 when
orders were passed on IA No. 12010/2002 and the plaintiff was
granted two days time to make good the deficiency.
53. My attention has been drawn to the pronouncement of this
court in AIR 2001 Delhi 30 State Bank of India vs. Indian
Utility Products & Ors. wherein the court held that if a plaint is
returned for removing defects, such as insufficient court fee, non-
signing of memo etc. and the said plaint was represented after
removal of defects after more than a year of time allowing
rectification, a subsequent order to register the plaint by the
Registry cannot deprive the right accruing to the defendant under
the law of limitation. It was held that the plaint would be deemed
to be presented on the date when it was re-presented. In this
behalf, placing reliance on the aforenoted pronouncement in AIR
(39) 1952 Vindhya Pradesh 12 Sukhnandan Prasad vs. Baburam
Maheshwar Lal, in para 11, 12 and 13, this court held as follows :-
"11. Indisputably, the amount of Court-fee initially
affixed on the plaint was Rs. 3.50 while the total
amount of Court-fee payable on suit amount was Rs.
3,419.30. In between 16th October, 1975 and 15th
November, 1976, no application whatsoever was
filed by the plaintiff-bank seeking extension of time
or rectification of the aforesaid objections. It may be
noticed that in terms of the order dated 5th
November, 1986 passed in is No. 5119/85 on which
great stress was laid on behalf of the plaintiff-bank,
said application was disposed of observing that the
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 26 of 32
plaintiff had already made up the Court-fee and,
Therefore, the question of condeonation of delay in
filing the application in making up the Court-fee, did
not arise. This order further notices that the
contention advanced on behalf of the defendants
that the plaint would be deemed to have been filed
when it was refiled for the purpose of limitation was
left open. Thus, the limb of argument referred to
above in regard to the issue of limitation having been
decided in bank's favor by the said order deserves to
be repelled being without merit. In my view, by
reason of representation of the plaint after more
than a year of the time allowed for rectification of
objections, a valuable right under the Law of
Limitation had accrued to the defendants and mere
admission of plaint by the Registrar by the order
dated 23rd December, 1976 of which no notice was
issued to the defendants, cannot deprive the
defendants of that right. In this view of mine, I am
supported by the decision in Sukh Nandan Parshad's
case AIR 1952 VP 12 (supra).
12. Let me turn to the aforementioned four decisions
relied on behalf of the plaintiff. In Mannan Lal's case
[1971]1SCR253 , deficiency in Court-fee on memo of
appeal was made good in terms of the order of Court
within time and in that context it was held by the
Supreme Court that though the curing of the defect
took place on the date of making good the
deficiency, the defect must be treated as remedied
from the date of its original institution, In Mahasay
Ganesh Prasad Ray's case AIR1953SC431 the High
Court in exercise of its discretion had allowed the
appellant to amend the memorandum of appeal and
granted time for payment of Court-fee under Section
149, CPC and in that background it was held that the
other party cannot attack that order on the ground
that it took away his valuable rights to plead the bar
of limitation as the question of payment of Court-fee
was primarily a matter between the Government and
the person concerned. In Mahanth Ram Das's case
[1961]3SCR763 , it was held that the Court can
extend time for payment of deficit Court-fee on an
application being made before the time fixed had run
out but the application comes up for hearing after
the period had run out under Sections 148, 149 and
151, CPC and the order extending time will operate
from the date on which the time fixed expired. In the
decision in M/s. Maltex Malsters (P) Ltd.'s case
AIR1975Delhi123 (supra), the observations
particularly made in para No. 11 of the report on
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 27 of 32
page 127 to which may attention was drawn, were
made while disposing of the application for
condonation of delay in affixing requisite stamp on
the order appealed from after the expiry of limitation
for filing the appeal.
13. Obviously, said decisions are clearly
distinguishable on facts and are of no help of the
plaintiff. In my opinion, in the facts and
circumstances of the present case, aforesaid defects
including deficit in Court-fee pointed out by the
Registry cannot be treated as having been remedied
from the date of original institution of suit and the
plaint would be deemed to have been presented on
15th November, 1976 instead of 26th September,
1975 for the purpose of counting the period of
limitation. Admittedly, as on 15th November, 1976,
the suit was barred by limitation. Issue is answered
against the plaintiff."
(Emphasis supplied)
54. The defendant has staunchly objected to the condonation of
the delay in filing the court fee. A reply to the present application
taking, inter alia, the above objection premised on limitation,
was filed on 24th of January, 2007 by the defendant. It is pointed
out that the plaintiff had made a false averment in its application
under Section 149 of the CPC. The court had accepted the oral
submissions made on behalf of the plaintiff and vide orders dated
20th December, 2002, the plaintiff was given time bound
directions to make good the deficiency. In this reply filed by the
defendant, a prayer is even made that this court initiate perjury
proceedings against the plaintiff for the false pleas urged in IA
No.12010/2002 under Section 149 of the CPC.
55. Despite the vehemence of the objections, the plaintiff has
not filed any application rendering any explanation for the
incorrect statement made in IA No.12010/2002 or for seeking
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 28 of 32
extension of the time for condonation of the delay in making
good the deficiency. The plaintiff has not filed even a rejoinder to
the reply of the defendant.
56. From the above, it would appear that whether it be 3rd or 9th
January, 2003, the plaintiff had failed to comply with the
directions made by the court on 20th December, 2002 for
depositing the court fee within two days as well.
57. It is trite that this court is adequately empowered to
consider and pass appropriate orders even extending the time to
comply with court orders or to make good the deficiency in the
court fee even though time granted may have expired. However,
some explanation for the same must be placed before the court.
58. It is also trite that so far as condonation of delay in refiling is
concerned, the same has to be liberally granted so as to advance
substantial justice. However, it is well settled that the applicant
has to disclose some grounds to enable the court to hold that the
delay deserves to be condoned.
59. Before this court, the plaintiff has failed to make good the
deficiency in the court fee within the time granted by the court.
He suggests no explanation at all for the delay in complying with
the court order. No application or prayer for condonation of delay
in making good the deficient court fee has been filed or made. In
the given facts and in the light of the principle laid down in the
above judgments, as on the 3rd of January, 2003 the suit of the
plaintiff had become barred by limitation.
60. It may be mentioned that even if the plaintiff was given
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 29 of 32
extension of time and the delay in depositing the court fee was
condoned, given the legal principles laid down in the judicial
pronouncement noticed above, the institution of the suit would
have to relate to the date on which the court fee was deposited
on 3rd (or 9th) January, 2002. The above discussion would show
that by this date the relief claimed by the plaintiff had become
barred by limitation. Looked at from any angle, there is,
therefore, substance in the defendants' objection that valuable
rights have enured to the defendant and the present application
for condonation of delay cannot be considered lightly or allowed
as a matter of course.
61. It would be expected that having filed a case involving such
a large sum of money, accompanied by the application seeking
interim injunction, the plaintiff himself would have made at least
a minimal inquiry from his counsel as to the orders passed
therein or the fate thereof. Having regard to the nature of the
case, any prudent and diligent litigant would be reasonably
expected to ascertain the progress in his case. In the instant
case, the plaintiff does not even suggest an explanation as to
why he himself made no enquiries and took no steps at all in the
matter. A period of almost seven months between 10 th June,
2002 and 19th December, 2002 is permitted to pass. There is not
even a remotest suggestion that the plaintiff ever inquired from
his counsel as to what was the fate of his case after he signed the
plaint and the application for interim relief. He does not disclose
or explain why he did not enquire as to whether any interim
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 30 of 32
protection was granted on his stay application for this long
period. The conduct of the plaintiff would be unreasonable and
negligent to say the least. It exhibits sheer arrogance in his
belief that attribution of fault to the office of a counsel is
sufficient for condoning delays and deficiency, irrespective of the
correctness of the reasons put forth to explain the same.
62. At the same time, as noticed above, the explanation
tendered for the delay in the refiling is completely unreliable.
The same is not supported by the record of the instant case and
does not inspire any confidence. No tenable grounds are
disclosed by the plaintiff and it has to be held that the
explanation given by the plaintiff for the delay in refiling is not
bonafide. It is accordingly held that the plaintiff has failed to
explain the reasons for the delay which has been occasioned.
63. So far as the prayer in IA No. 12010/2002 for exemption
from payment of court fee is concerned, reliance has been placed
on the pronouncement of the Division Bench of this court in 68
(1997) DLT 891 Sahara India Airlines vs. R.A. Singh & Anr.
In view of the above discussion, this issue does not need to
detain this court any further.
The present application is devoid of merit and is hereby
dismissed.
IA No. 12009/2002 (Under Section 38 Rule 5 of the CPC)
64. This application was filed by the plaintiff under Order 38
Rule 5 read with Order 39 Rule 1 and 2 and Section 151 of the
Code of Civil Procedure praying for interim orders of injunction
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 31 of 32
and attachment by the plaintiff.
65. An ex-parte ad-interim protection was granted to the
plaintiff by this court when the suit was first listed on 20 th
December, 2002.
66. It is trite that interim protection would be granted only if the
suit was not prohibited by any statutory provisions. In the instant
case, it has been held in IA No. 12012/2002 that the suit is barred
by limitation. In view of such prohibition by prescription, the
present application would not be maintainable and has to be
rejected.
This application is consequently dismissed.
(GITA MITTAL)
JULY 21, 2011 JUDGE
aa/kr
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 32 of 32
