Delhi High Court
Shri Balbir Singh vs Shri Pehlad Singh on 29 March, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 29.03.2011
+ RSA No.240/2007
SHRI BALBIR SINGH ...........Appellant
Through: Mr.Ramesh Chandra, Sr. Advocate
with Ms. Geeta Malhrotra, Advocate.
Versus
SHRI PEHLAD SINGH ..........Respondent.
Through: Mr. R.P. Vats and Ms.Puja Dewan,
Advocates.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1. This appeal has impugned the judgment and decree dated
22.05.2007 which had endorsed the findings of the trial Judge
dated 05.04.2005 whereby the suit filed by the plaintiff Narain
Singh seeking a declaration to the effect that the sale deed
executed by him dated 15.09.1984 be declared null and void had
been decreed in his favour. The trial Judge had held that the sale
deed is vitiated by fraud, mis-representation and undue influence,
the plaintiff was entitled to the relief as prayed for by him. This
finding as already noted was affirmed in the impugned judgment.
2. This is a second appeal. The thrust of the arguments of
learned counsel for the appellant is that suit had initially been filed
in forma pauperis i.e. a petition under Order XXXIII of the Code of
Civil Procedure (hereinafter referred to as the „Code‟). This
application had been filed by Narain Singh in the year 1986. On
17.09.1987, this application under Order XXXIII of the Code had
been withdrawn. This is evident from the record. The Court had
dismissed this application on the averment of the plaintiff that he
was not pressing this application; liberty had been granted to the
plaintiff to file any such further application if the need so arises.
On the same day i.e. on 17.09.1987, issues were framed in the suit
and the matter was fixed for evidence. Record shows that the
matter proceeded thereafter. On 16.09.2004, an application had
been filed by the plaintiff under Section 149 of the Code which was
thereafter listed for arguments after notice to the defendant. On
05.11.2004, the said application under Section 149 of the Code had
been allowed and the plaintiff had been granted two weeks time to
pay the court fee. Court fee has since been paid.
3. Vehement argument of leaned counsel for the appellant
before this Court is that at the time when the application under
Order XXXIII of the Code had been withdrawn, there was no
proceeding left before the Court and as such no orders could have
been given by the Court granting extension of time to the plaintiff
to pay the court fee; the entire proceedings are non-est and a
nullity. Reliance has been placed upon (1994) 4 SCC 370 Jaipur
Development Authority Vs. Radhey Shyam & Another to
substantiate the submission that a decree which is nullity can be
challenged even at the execution stage. There is no dispute to this
proposition. However, facts of each case have to be deciphered
before the proposition sought to be urged can be applied.
4. Record shows that on 23.01.1986, the plaintiff had filed the
present suit. Along with the suit, an application under Order XXXIII
of the Code had also been filed. On the first date of hearing i.e.
24.01.1986, the suit had been directed to be registered. Petition
under Order XXXIII of the Code for permission to sue as forma
pauperis had been taken on record and the statement of the
plaintiff had been recorded; thereafter the proceedings as noted
hereinabove are admitted. On 17.09.1987, application under Order
XXXIII of the Code had been withdrawn; admittedly the court fee
had not been paid till 05.11.2004 when the application preferred
by the plaintiff under Section 149 of the Code had been allowed
and the time of two weeks had been granted to the plaintiff to pay
the said court fee. It is also not in dispute that in the entire
proceedings before the trial court as also the first appellate court,
this argument had never been urged. This argument had been
urged for the first time in the second appellate court. However,
being a pure question of law, this Court deems it fit to hear
arguments on this application.
5. Section 149 of the Code reads as under:-
"149. Power to make up deficiency of court-fees-.Where the whole or any part of
any fee prescribed for any document by the law for the time being in force
relating to court-fees has not been paid, the Court may, in its discretion, at any
stage, allow the person, by whom such fee is payable, to pay the whole or part,
as the case may be, of such court-fee; and upon such payment the document, 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"
6. This provision gives ample powers to the court to grant time
to a party to pay the court fee; this may be either in whole or in
part; this discretion was fairly and judicially exercised by the Court
on the application preferred by the plaintiff and the order of the
Court granting two weeks time to the plaintiff to pay the court fee
on 05.11.2004 does not suffers from any infirmity on this count.
This is especially so in view of the fact that the defendant had all
along participated in the proceedings and there was no demur on
his part challenging the said proceedings. Powers under Section
149 of the Code are also not restricted.
7. This is the only argument urged before this Court.
Substantial questions of law have been embodied at page 9 of the
body of appeal. Although they are 8 in number, yet no argument
had been addressed on any other count. No substantial question of
law has arisen. Appeal is dismissed in limine.
INDERMEET KAUR, J.
MARCH 29, 2011
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