Karnataka High Court

Smt T R Sathyavathi vs T H Ramesh on 8 December, 2021

Bench: B.Veerappa, K S Hemalekha

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 8TH DAY OF DECEMBER, 2021

                          PRESENT

            THE HON'BLE MR. JUSTICE B. VEERAPPA

                             AND

         THE HON'BLE Mrs. JUSTICE K.S. HEMALEKHA

          REGULAR FIRST APPEAL No.312/2016(PAR)

BETWEEN:

SMT. T. R. SATHYAVATHI,
D/O T.H.RAMESH,
W/O DR. KIRAN KUMAR,
AGED ABOUT 30 YEARS,
DAKSHA DENTAL CLINIC,
UPPARAHALLI CIRCLE,
UPPARAHALLI ROAD,
TUMKUR CITY 572102.
                                             ...APPELLANT

(BY SRI GANGADHARAPPA A. V., ADVOCATE)

AND:

1.     T. H. RAMESH
       S/O LATE T.H. HANUMANTHARAYAPPA,
       AGED ABOUT 60 YEARS,

2.     T.R. ANJAN
       S/O T.H. RAMESH
       AGED ABOUT 24 YEARS
                                  2




     BOTH ARE RESIDENTS OF THOVINAKERE,
     KORATAGERE TALUK,
     TUMKUR DISTRICT-572129.

3.   G.H. THIMMAIAH,
     S/O LATE G.HANUMANTHAIAH,
     AGED ABOUT 72 YEARS,
     RESIDING AT NO.3593,
     3RD MAIN ROAD,
     17TH "D" CROSS,
     BANASHANKARI II STAGE,
     BANGALORE-560070.
                                                   ...RESPONDENTS

(BY SRI B. C. SEETHARAM RAO, ADVOCATE FOR R3;
R1 AND R2 ARE SERVED BUT UNREPRESENTED)

                          *****
     THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
OF CPC., PRAYING TO SET ASIDE THE ORDER DATED 15.10.2015
PASSED IN O.S NO.2318/2009 BY THE XXXVIII ADDITIONAL CITY
CIVIL & SESSIONS JUDGE, BENGALURU, REJECTING THE PLAINT
FILED UNDER ORDER 7 RULE 11(b) AND (c) OF CPC.,

     THIS REGULAR FIRST APPEAL COMING ON FOR HEARING
THIS DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:


                         JUDGMENT

The appellant - plaintiff filed the present Regular First Appeal

against the judgment & decree dated 15.10.2015 made in O.S.

No.2318/2009 on the file of the XXXVIII Additional City Civil &

Sessions Judge, Bangalore, rejecting the plaint under Order VII

Rule 11(b) & (c) of the Code of Civil Procedure, on account of

failure on the part of the plaintiff to comply with the order dated

28.11.2014 i.e., to value the relief of partition under Section 35(1)

of the Karnataka Court-Fees & Suits Valuation Act ('KCF & SV Act'

for short) and to pay additional Court fee.

2. The present appellant, who is the plaintiff before the trial

Court filed the suit in O.S. No.2318/2009 against the defendants for

partition and separate possession in respect of the suit schedule

properties, contending that the suit schedule properties are the

joint family properties of the plaintiff and defendants 1 and 2 and

she is entitled to share. It is further case of the plaintiff that the

registered sale deed dated 1.6.2006 executed by the alleged

General Power of Attorney of the 1st defendant in favour of the 3rd

defendant is not within his knowledge and not binding on her share

in respect of item No.1 of the suit schedule properties.

3. The written statement came to be filed by the 3 rd

defendant, denying the plaint averments and contended that the 3 rd

defendant is in possession and enjoyment of item No.1 of the plaint

schedule properties by virtue of the registered sale deed dated

1.6.2006 executed by the General Power of Attorney holder of the

1st defendant for valuable sale consideration of Rs.2,80,000/- and

sought for dismissal of the suit in respect of Item No.1 of the suit

schedule properties.

4. Based on the aforesaid pleadings, the trial Court framed

seven issues on 29.1.2014. Issue No.4 is relating to the court fee

and it reads as under:

"Whether the Court fee paid by the plaintiff is sufficient?"

5. Having heard the learned counsel for the parties on Issue

No.4, the trial Court by the order dated 28.11.2014 relying upon

paragraph-6 of the plaint, has come to the conclusion that the

plaintiff has to pay Court Fee in respect of item No.1 of the suit

schedule properties under Section 35(1) of the KCF & SV Act and to

pay additional Court fee accordingly by 9.1.2015.

6. Subsequently, the plaintiff filed I.A. No.10 under Section

148 of the Code of Civil Procedure seeking for extension of time by

15 days to comply with the order dated 28.11.2014. In the

memorandum of facts accompanying the application, it is stated

that the plaintiff could not able to adjust the amount to pay Court

fee as per the order dated 28.11.2014 and moreover, she has filed

Writ Petition No.13160/2015 before this Court against the order

dated 28.11.2014 and the said writ petition is pending for

adjudication and therefore sought for extension of 15 days' time to

comply the order dated 28.11.2014.

7. By the impugned order dated 15.10.2015, the trial Court

rejected the application for extension of time so also rejected the

plaint for non-payment of court fee under Section 35(1) of the KCF

& SV Act. Hence, the present Regular First Appeal is filed.

8. It is also relevant to state at this stage that the appellant

filed Writ Petition No.13160/2015 against the order dated

28.11.2014 passed by the trial Court. Since the suit itself has

already been disposed off, this Court by the order dated 21.1.2016

dismissed the said writ petition as having become infructuous.

9. We have heard the learned counsel for the parties to the

lis.

10. Sri A.N. Gangadharappa, learned counsel for the appellant

contended with vehemence that the Court below erred in rejecting

the plaint in respect of all items of suit schedule properties even

though the dispute is only in respect of item No.1 of the suit

schedule properties and the Court fee required to be paid as per the

order dated 28.11.2014 only in respect of item No.1. Therefore,

the trial Court has exceeded in its jurisdiction in rejecting the plaint

in respect of other items, which is impermissible. He further

contended that the plaintiff is not seeking cancellation of the

registered sale deed dated 1.6.2006 stated to have been executed

by the 1st defendant in favour of the 3rd defendant and only sought

for a declaration that the sale deed is not binding on her share in

item NO.1 of the suit schedule properties. Therefore, the Court fee

paid on the plaint in respect of item No.1 was sufficient and there is

no question of paying court fee under Section 35(1) of KCF & SV

Act as pleadings, plaint averments specifically stated that the

plaintiff and defendant Nos.1 and 2 are members of the joint family

and the suit schedule properties are joint family properties. He

would further contend that though an order came to be passed on

28.11.2014 directing the plaintiff to pay Court fee in respect of item

No.1 under Section 35(1) of the KCF & SV Act, that was the subject

matter of Writ Petition No.13160/2015. However, the said writ

petition came to be dismissed as having become infructuous on the

ground that the suit itself has already been disposed off.

11. Learned counsel for the appellant further submits that in

view of the clear pleading and the material on record, the plaintiff

need not pay Court fee under Section 35(1) of the KCF & SV Act

and court fee paid under Section 35(2) of the KCF & SV Act on the

plaint is sufficient and valid and therefore, he sought to set aside

the impugned order passed by the trial Court rejecting the plaint in

its entirety, by allowing the present Regular First Appeal.

12. In support of his contentions, learned counsel for the

appellant relied upon the following judgments:

1. Nanjamma -vs- Akkayamma - (2015)3 Kar.LJ 357 (DB) (paragraphs 12, 68, 70 and 71)

2. Venkatesh R. Desai -vs- Smt. Pushpa Hosmani and others - 2018(2) Kar.LR 714 (FB)

13. Per contra, Sri B.C. Seetharama Rao, learned counsel for

Respondent No.3 fairly submits that the order passed by the trial

Court rejecting the plaint is in respect of all items of suit schedule

properties, is contrary to the original order passed by the trial Court

dated 28.11.2014, wherein the learned trial Judge directed the

plaintiff to pay Court fee only in respect of item No.1. To that

extent, he submits that the order passed by the trial Court may not

be justified.

14. He further contended that in view of paragraph Nos.6

of the plaint, in categorical terms it is stated by the plaintiff that

one Smt. K.C.Sowbhagya having sold suit item No.1 in favour of

defendant no.3 under a registered sale deed dated 01/06/2006 as a

General Power of Attorney Holder of defendant No.1 registered as

document No.BAS-1-05311-2006-07 in Book No.1, stored in

C.D.No.BASD245, dated 01/06/2008 in the office of the Senior Sub-

Registrar, Bangalore South Taluk, without the knowledge of the

plaintiff and neither defendant No.1 nor anybody else are having

independent right over the said property either to sale or to

alienate in any manner and hence, the above said sale deed

executed by the General Power of Attorney Holder of the defendant

No.1 in respect of property in suit schedule item No.1 is liable to be

declared as not binding on the plaintiff. Therefore, the trial Court

was justified in directing the plaintiff to pay a Court fee under

Section 35(1) of the Karnataka Court-Fees and Suits Valuation Act,

1958 in respect of suit item No.1.

15. He would further contend that it is not the case of the

plaintiff that in the entire plaint averments that either the plaintiff

or her father is in possession of the property, thereby, in the

absence of possession of any coparcener or the plaintiff the trial

Court is justified in invoking the provisions of Section 25(1) of the

said Act. Therefore, he sought dismissal of the appeal, confirming

the order passed by the trial Court in respect of suit item No.1 of

the suit schedule properties.

16. In view of the aforesaid rival contentions urged, the

only points that arise for our consideration in this regular first

appeal are:

(i) Whether the trial Court is justified in rejecting the plaint in respect of suit item Nos.1 to 35 as

suit schedule properties in view of the order passed by the trial Court dated 28/11/2014?

(ii) Whether the case of the plaintiff attracts either under the provisions of Section 35(1) or 35(2) of the Karnataka Court Fees & Suits Valuation Act, 1958 in the facts and circumstances of the preset case?

17. We have given our anxious consideration to the

averments advanced by the learned counsel for the parties and

perused the material on record carefully.

18. It is an undisputed fact that the plaintiff filed the suit

claiming the suit schedule properties as the joint family properties

of plaintiff and defendant Nos.1 and 2 and there is no partition and

separate possession in the joint family properties and the sale deed

executed by defendant No.1-her father in favour of defendant No.3

through General Power of Attorney dated 01/06/2006 in respect of

suit item No.1 is not binding on the plaintiff's share. Admittedly,

the suit is filed for partition and separate possession.

19. It is relevant to consider the provisions of Section 35 of

the Karnataka Court Fees and Suits Valuation Act, 1958, which

reads as under:

"Section 35. Partition suits.- (1) In a suit for partition and separate possession of a share of joint family property or of property owned, jointly or in common, by a plaintiff whose title to such property is denied, or who has been excluded from possession of such property, fee shall be computed on the market value of the plaintiff's share.

(2) In a suit for partition and separate possession of joint family property or property owned, jointly or in common, by a plaintiff who is in joint possession of such property, fee shall be paid at the following rates:-

Rupees fifteen if the value of plaintiff's share is Rs. 3,000 or less;

Rupees thirty if the value is above Rs. 3,000 but not more than Rs. 5,000;

Rupees one hundred if the value is above Rs. 5,000 but below Rs. 10,000 and Rupees two hundred if the value is Rs. 10,000 and above.

(3) Where, in a suit falling under sub-section (1) or sub-section (2), a defendant claims partition and separate possession of his share of the property, fee

shall be payable on his written statement computed on half the market value of his share or at half the rates specified in sub-section (2), according as such defendant has been excluded from possession or is in joint possession.

(4) Where, in a suit falling under sub-section (1) or sub-section (2), the plaintiff or the defendant seeks cancellation of decree or other document of the nature specified in Section 38 separate fee shall be payable on the relief of cancellation in the manner specified in that section."

A careful reading of the provisions of Section 35(1) and (2) of

the Act clearly depicts that in a suit for partition and separate

possession of a share of joint family property or of property owned,

jointly or in common, by a plaintiff whose title to such property is

denied, or who has been excluded from possession of such

property, fee shall be computed on the market value of the

plaintiff's share. Sub-section (2) of Section 35 of the Act

contemplates that in a suit for partition and separate possession of

joint family property or property owned, jointly or in common, by a

plaintiff who is in joint possession of such property fee shall be paid

at the following rates: Rupees fifteen if the value of plaintiff's share

is Rs. 3,000 or less; Rupees thirty if the value is above Rs. 3,000

but not more than Rs. 5,000; Rupees one hundred if the value is

above Rs. 5,000 but below Rs. 10,000 and Rupees two hundred if

the value is Rs. 10,000 and above.

20. In the present case, though the plaintiff submitted in

general that defendant No.1 has sold the suit schedule item No.1

property in favour of defendant No.3, which is a joint family

property, in paragraph No.6 of the plaint, it is specifically stated as

under:

"6. The plaintiff submits that one Smt.K.C.Sowbhagya by stating herself as the General Power of Attorney Holder of the defendant No.1 has sold the schedule Item No.1 property in favour of the defendant No.3 under a registered sale deed dated 01.06.2006 registered as document No.BAS-1-05311-2006-07 in Book No.1, stored in C.D.No.BASD245 dated 01.06.2008 in the office of the Senior Sub-Registrar, Bangalore South Taluk, with out the knowledge of the plaintiff and neither the defendant No.1 nor any body else are having independent right over the said property either to sale or alienate in any manner and hence the above said sale deed executed by the

General Power of Attorney Holder of the defendant No.1 in respect of the suit schedule item No.1 property is liable to be declared as not binding on the plaintiff."

By a careful reading of the said paragraph clearly depicts that

Smt. K.C.Sowbhagya is the power of attorney holder of defendant

No.1 (plaintiff's father) sold suit schedule item No.1 in favour of

defendant No.3 under a registered sale deed dated 01/06/2006

without her knowledge and the same is not binding on the share of

the plaintiff. A careful reading of plaint averments, nowhere it is

stated that either the plaintiff or her father was in possession of

item No.1 of the suit schedule property as on the date of filing of

the suit. Thereby, the provisions of Section 35(1) of the Act

attracts in the facts of the present case.

21. Though Sri Gangadharappa, learned counsel for the

appellant relied upon the dictum of the Division Bench of this Court

in the case of Nanjamma vs. Smt. Akkayyamma & others

[RFA. No.287/2008 disposed of on 30/04/2014] (Nanjamma

vs. Smt. Akkayyamma), held that it was a case for partition filed by

the sisters against their brothers. The contention was that one of

the brothers who was in possession of the joint family property and

there was no need for the plaintiff to come to the Court for partition

and also to put in possession. The Division Bench of this Court held

that since the plaintiff was not found to be in possession of the suit

schedule properties, while declining to grant the relief of permanent

injunction, the trial Court directed the plaintiff to file fresh valuation

slip under Section 35(1) of the Karnataka Court Fees and Suits

Valuation Act and to pay deficit court fee. Thereafter, the

purchasers have got the lands converted, formed lay-outs,

constructed multistoried shopping complexes after obtaining the

sanctioned plan and sold the same. As on the date of the suit,

neither the plaintiff nor her brother Kalappa was in possession of

the property and therefore, the suit ought to have been valued

under Section 35(1) of the Karnataka Court Fees and Suits

Valuation Act and not under Section 35(2) of the Act and directed

the plaintiff to value the suit under Section 35(1) of the Act and pay

the deficit Court fee.

22. The said judgment, in fact, supported the case of

defendant No.3. Admittedly, in the present case, in the entire

pleadings, it is no where stated either the plaintiff was in possession

nor her father was in possession of the property as on the date of

the suit filed. When she has specifically sought the prayer that the

alienation made by her father in respect of suit item No.1 in favour

of defendant No.3 is not binding, inter alia, the plaintiff permits her

father who sold the property was not in possession as on the date

of the suit. Thereby, the trial Court was justified in directing the

plaintiff the pay the Court fee in respect of item No.1 by order

dated 28/11/2014. It is also not in dispute that I.A.No.10 was filed

by the plaintiff under Section 148 of the Code of Civil Procedure

seeking extension of time by 15 days to comply with order dated

28/11/2014 passed by the trial Court. The trial Court, while

considering the said application, recorded a finding that sufficient

time was granted to comply with the said order. Since the plaintiff

failed to comply with the order, I.A.No.10 was dismissed. Of

course, the said order passed by the trial Court was subject matter

of the writ petition filed by the plaintiff in W.P.No.13160/2015

before this Court. This Court, while disposing of the writ petition

permitted the plaintiff to take one of the grounds to be urged in this

appeal. The said order passed by the learned single Judge would

no way assist the case of the plaintiff.

23. Insofar as the judgment of the Full Bench relied upon

by the learned counsel for the appellant in the case of Venkatesh

R.Desai vs. Smt. Pushpa Hosmani & others [2018 (2)KLR

714], this Court, while considering the provisions of Section 11 of

the Karnataka Court Fees and Suits Valuation Act, 1958 read with

Order XIV Rule 2 of the CPC, held that when an issue of valuation

and/or Court fees is raised in a civil suit on the objection of the

defendant, the same is not invariably required to be tried as a

preliminary issue and before taking evidence on other issues; but

could be tried as a preliminary issue if it relates to the jurisdiction

and the Trial Court is of the view that the suit or any part thereof

could be disposed of on its determination. Admittedly, the said

issue is not before us. Therefore, the Full Bench judgment relied

upon by the appellant would not be applicable to the facts of the

present case. The issue before this Court is, whether the

appellant/plaintiff has to pay the Court fee on suit item No.1 under

Section 35(1) of the Act or the Court fee already paid under Section

35(2) is sufficient on all other suit items or not.

24. We have already stated above that in the entire

pleadings of the suit there is no averments to show either the

plaintiff or her father was in possession of suit item No.1 of the suit

schedule property. If there was a plea that the plaintiff's father is

one of the share holder in respect of the suit schedule property was

in possession, there was no need for the plaintiff to be in

possession also as held by this Court in the case of Nanjamma vs.

Smt. Akkayyamma stated supra. But in the present case, the

plaintiff and her father, defendant No.1 have been excluded from

the possession of suit item No.1 by virtue of registered sale deed

dated 01/06/2006, thereby the court fee shall be computed on the

market value as contemplated under Section 35(1) of the Act and

the Court fee paid in respect of Section 35(2) of the Act is not

applicable in respect of item No.1. It is also not in dispute that

when the learned trial Court Judge passed the order on

28/11/2014, directing the plaintiff to pay the Court fee under

Section 35(1) of the Act in respect of suit item No.1, the learned

Judge was not justified in dismissing the suit in its entirety in

respect of suit item Nos.2 to 35 where the plaintiff has specifically

stated that they are in joint family and are in joint possession and

the defendant has no way concern with the other properties.

25. The Hon'ble Supreme Court, while considering the

provisions of Section 149 and Order VII Rule 11(b) and (c) of the

CPC in the case of Manoharan vs. Sivarajan & others [(2014) 4

SCC 163], in paragraph Nos.7, 8, 9, 11, 12 and 18 held as under:

"7. 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 2 (ii)

8. In the case of State of Bihar v. Kameshwar Prasad Singh, 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 the 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

(LA), Anantnag v. Mst. Katiji 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.

12. After referring to the various judgments reported in New India Insurance Co. Ltd. v. Shanti Misra, Brij Indar Singh v. Kanshi Ram, Shakuntala Devi Jain v. Kuntal Kumari, Concord of India Insurance Co. Ltd. v. Nirmala Devi, Lala Mata Din v. A. Narayanan, State of Kerala v. E.K. Kuriyipe, Milavi Devi v. Dina Nath, O.P. Kathpalia v. Lakhmir Singh, Collector (LA) v. Katiji, Prabha v. Ram Parkash Kalra, G. Ramegowda,

Major v. Land Acquisition Officer, Scheduled Caste Co- op. Land Owning Society Ltd. v. Union of India, Binod Bihari Singh v. Union of India, Shakambari & Co. v. Union of India, Ram Kishan v. U.P. SRTC and Warlu v. Gangotribai, this Court in State of Haryana v. Chandra Mani held:

'11. ......The expression "sufficient cause" should, therefore, be considered with pragmatism in justice- oriented approach rather than the technical detection of sufficient case for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice 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 down 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 Tehsildar, (LA) v. K.V. Ayisumma.

13. In Nand Kishore v. State of Punjab 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 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 N.Balakrishna v. M. Krishnamurthy:

9. 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."

9. 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 the Sub-Judge in the light of the directive principle laid down in Article 39-A 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.

xxx xxx xxx

11. Further, in State of Maharashtra V. Manubhai Pragaji Vashi, it has been held that:

"17. ...... we have to consider the combined effect of Article 21 and Article 39-A 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 39-A 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 39-A 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 39-A 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."

12. 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.

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18. In view of the reasons assigned while answering Points (i), (ii) and (iii) 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."

For the reasons stated above, we are of the considered

opinion that the plaintiff has to pay the Court fee on item No.1

under Section 35(1) of the Karnataka Court Fees & Suits Valuation

Act, 1958 and it shall be computed on the market value of his share

in respect of item No.1 as on the date of the suit.

26. It is also well settled that while payment of Court fee,

the Courts to ensure substantial justice to be done to the parties.

Merely non-payment of Court fee, the plaint cannot be rejected and

an opportunity should be given to the plaintiff to pay the Court fee.

Admittedly, in the present case, an application was filed for

extension of time which came to be rejected by the trial Court

holding that sufficient time was granted to the plaintiff to comply

with the order, but he has not availed the opportunity.

27. At this stage, learned counsel for the appellant fairly

submitted that the plaintiff will pay the Court fee in respect of item

No.1 under the provisions of Section 35(1) of the said Act as on the

date of the suit.

28. His submission is placed on record.

29. For the reasons stated above, the points arose for our

consideration in this appeal is answered in the affirmative holding

that the trial Court is justified in rejecting the plaint in respect of

suit item No.1 for non-payment of Court fee under the provisions of

Section 35(1) of the said Act and accordingly, we answer point No.2

in the negative holding that the trial Court is not justified in

rejecting the plaint in respect of the other suit items of the suit

schedule property.

30. In view of the specific order dated 28/11/2014 passed

by the trial Court, we pass the following:

ORDER

(i) The Regular First Appeal is allowed in part.

(ii) The impugned judgment and decree dated 28/11/2014

passed by the trial Court in respect of suit item No.1 for

non-payment of Court fee under Section 35(1) of the

Act is hereby confirmed and the order in respect of

other items is hereby set aside.

(iii) The plaintiff is directed to pay the Court fee in respect

of item No.1 as contemplated under Section 35(1) of

the Act and the fee shall be computed on the market

value of the plaintiff's share within a period of one

month from the date of receipt of the copy of this

order.

(iv) If such Court fee is paid in respect of suit item No.1, the

trial Court shall proceed and decide the matter as

expeditiously as possible, but not later than one year

from today subject to co-operation of the parties.