M/S Kshitij Infraventures Pvt. ... vs Mrs. Khorshed Shapoor Chenai And 2 ...
2022 Latest Caselaw 80 Tel

                                     1


     IN THE HIGH COURT OF JUDICATURE FOR THE STATE OF
                        TELANGANA
                           ********

I.A. No. 1 OF 2020 And CCCA No. 66 OF 2020

Between:

M/s Kshitij Infraventures Pvt Ltd Formerly known as Ashish Developers and Builders P Ltd having its registered office at Plot No 136/A Road No 12 Banjara Hills Hyderabad rep by its Director Sri Rajkumar Malpani ..... appellants/ And

Mrs Khorshed Shapoor Chenai W/o late Shapoor Rasheed Chenai R/o 5-9-22/1 Shapoorwadi Adarshnagar Hyderabad and 2 Others

.....Respondent/

DATE OF JUDGMENT PRONOUNCED :07 .01.2022

THE HON'BLE SRI JUSTICE P.NAVEEN RAO & THE HON'BLE SMT JUSTICE P.SREE SUDHA

1. Whether Reporters of Local Newspapers : No may be allowed to see the Judgments ?

2. Whether the copies of judgment may be : Yes marked to Law Reporters/Journals

3. Whether Their Lordship wish to : No see the fair copy of the Judgment ?

PNR,J & PSS,J CCCA No.66 of 2020

* HONOURABLE SRI JUSTICE P.NAVEEN RAO & HONOURABLE SMT JUSTICE P.SREE SUDHA

+ I.A. No. 1 OF 2020 And CCCA No. 66 OF 2020

% 07.01.2022

# M/s Kshitij Infraventures Pvt Ltd Formerly known as Ashish Developers and Builders P Ltd having its registered office at Plot No 136/A Road No 12 Banjara Hills Hyderabad rep by its Director Sri Rajkumar Malpani ... Appellant Vs.

$ Mrs Khorshed Shapoor Chenai W/o late Shapoor Rasheed Chenai R/o 5-9-22/1 Shapoorwadi Adarshnagar, Hyderabad and 2 Others ... Respondents

!Counsel for the Appellant(s) : Sri Dammalapati Srinivas, Senior counsel for Sri Satyanarayana Rao Counsel for the Respondent No.1: Sri Venkatadri Raju Counsel for the Respondent No.2: Sri S Niranjan Reddy, Senior counsel for Sri Naresh Reddy Chinnolla Counsel for the Respondent No.3: Sri B Sree Hari

<Gist :

>Head Note:

? Cases referred:

(1961) 3 SCR 1015 1970 (1) SCC 769 (1998) 7 SCC 123 (2008) 8 SCC 321 (2012) 7 SCC 738 (2014) 4 SCC 163 (2007) 2 Gauhati Law Reports 479 (2006) 11 SCC 114 (2013) 14 SCC 81 (2011) 4 SCC 363 (2010) 8 SCC 685 AIR 1962 SC 361 RLW 2006 (1) Raj 275 = 2006 (1) WLC 51 (2012) 5 SCC 157 (2013) 12 SCC 649 (1970) 1 SCC 769 (2008) 12 SCC 481 (2010) 2 SCC 114 PNR,J & PSS,J CCCA No.66 of 2020

HONOURABLE SRI JUSTICE P. NAVEEN RAO & HONOURABLE SMT JUSTICE P SREE SUDHA

I.A. No. 1 OF 2020 And CCCA No. 66 OF 2020

ORDER: (Per Hon'ble Sri Justice P.Naveen Rao)

Heard Sri Dammalapati Srinivas learned senior counsel

representing Sri Satyanarayana Rao Adiraju learned counsel for

appellant, Sri Venkatadri Raju learned counsel for first

respondent, Sri S.Niranjan Reddy learned senior counsel

representing Sri Naresh Reddy learned counsel for second

respondent and Sri B.Sree Hari learned counsel for third

respondent.

2. This is an application filed to condone the delay of 1691 days

in preferring appeal against the judgment and decree dated

28.4.2015 in O.S. No. 69 of 2003 on the file of XIII Additional chief

Judge, City Civil Court, Hyderabad. Petitioner/appellant is the

plaintiff No.2 in O S No. 69 of 2003. The third respondent is

plaintiff No.1 and respondents 1 and 2 are defendants 1 and 2 to

the suit.

3. From the pleadings, to the extent relevant, the timeline of the

litigant leading to this application is noted hereunder. Respondent

no.3 claims that late Shapoorji Chenoy was the owner of the suit

schedule property (Acs.22.05 guntas) and she has succeeded to

the said property. The suit schedule property is Municipal House

bearing No. 1-2-630, Elchibegguda, Lower Tank Bund Road,

Hyderabad. It forms part of Sy.Nos.157/1 to 3, 158/1 & 2, 159 PNR,J & PSS,J CCCA No.66 of 2020

and 159/1 of Bakaram village, co-related to T.S.No.27, Block-B,

Ward No.76 of Bakaram village. The suit schedule property was

leased out in perpetuity by late Shapoorji Chenoy to Dewan

Bahadoor Ramgopal Mills Limited (DBR Mills) for the purpose of

running Textile Mills. According to DBR Mills, it has also

purchased Acs.4.00 guntas of adjacent land. In the said manner,

it has acquired in all Acs.26.05 guntas of land. In the said land,

DBR Mills was established.

4. Alleging that several terms of lease agreement were violated

by the lease holder resulting in lease becoming inoperative and

claiming that plaintiff is entitled to recovery of possession, to

recover arrears of rent and damages, legal proceedings were set in

motion and plaintiff no.1 instituted O.S.No.1201 of 1995,

renumbered as O.S.No.69 of 2003 on the file of XIII Additional

chief Judge (FTC), City Civil Courts, Hyderabad, praying to grant

decree of eviction of defendant No. 1 from the leased property and

to pay damages. On 03.12.1998, the appellant herein entered into

agreement of sale with the respondent no.3 herein in respect of the

suit schedule property. Thereafter, the appellant impleaded as

plaintiff no.2. DBR Mills Employees Union was later impleaded as

Defendant No.2 to the suit.

5. While so, plaintiffs 1 and 2 and first defendant sought to

resolve the inter se dispute and entered into compromise on

08.03.1999. In terms of this compromise, appellant gets full rights

on Acs.6.00 out of suit schedule land and 1st respondent owns

remaining land of Acs.16.00. The compromise memo was filed

into the Court through I.A.No.359 of 1999. Second defendant filed PNR,J & PSS,J CCCA No.66 of 2020

an affidavit seeking leave of the Court to allow him to join as a

party to the compromise memo and agreeing to record the

compromise and to pass judgment in terms thereof.

6. Though, initially agreed to resolve the dispute amicably and

entered into compromise when matter was considered by the trial

Court to record the compromise and to render judgment, the first

respondent opposed the compromise by contending that there was

huge delay in presenting the compromise memo causing financial

drain and sought to record fresh compromise before an Arbitrator.

Over-ruling the objection of 1st respondent taking recourse to

Order XXIII Rule 3 of CPC, by judgment dated 03.04.2003, the

Trial Court allowed I.A.No.359 of 1999 and decreed the suit in

terms of the compromise. The Trial Court also directed to pay the

Court fee if any required, as per the terms of compromise.

7. The respondent no.1 filed CCCA No. 350 of 2003 before

Hon'ble High Court challenging the compromise Decree dated

3.4.2003. The respondent No. 2 herein also preferred CCCA No. 74

of 2004. CCCA No. 329 of 2003 and CCCA No. 131 of 2004 were

filed by third parties. All the four appeals were clubbed and by a

common judgment dated 12.4.2004, the Division Bench of this

Hon'ble Court dismissed all the appeals, thereby confirming the

compromise decree dated 3.4.2003. However, for the limited

purpose to assess the value of the property relating to compromise,

and the Court fee payable thereon, the matter was remanded to the

trial Court.

8. Challenging the decision of this Court, Special Leave Petition

Nos. 13630 to 13633 of 2005 were filed and the same were PNR,J & PSS,J CCCA No.66 of 2020

dismissed by the Hon'ble Supreme Court by order dated

21.4.2005. Review Petitions filed against the dismissal of SLPs

were also dismissed by order dated 24.8.2005.

9. On remand, the suit underwent several adjournments to

secure the market value of the land in issue and thereafter for

payment of Court fee. Holding that even though several

adjournments were granted plaintiffs have not paid the court fee

they forfeited their right and finally dismissed the suit by judgment

dated 28.04.2015.

10. The first respondent filed O.S.No.293 of 2019 in the Court of

X Additional Chief Judge, City Civil Court praying to grant decree

of cancellation of the registered documents bearing document

no.1349 of 2009 dated 27.10.2009 and document no.1350 of 2009

dated 28.10.2009.

11. Appellant claims that he came to know about dismissal of

O.S.No.69 of 2003 only when he received summons in O.S.No.293

of 2019. Immediately thereafter he has obtained all the documents

and instituted the appeal suit. In preferring the appeal, there is a

delay of 1691 days. Therefore, appellant filed this I.A.No.1 of 2020

to condone the delay in filing the appeal.

12.1. Learned senior counsel for the appellant Sri Dammalapati

Srinivas contended that Order XLI Rule 26A of CPC per force

requires trial Court to issue notice to parties by fixing the date of

hearing on remand, but this Rule was not complied. After the

remand by this Court in CCCA Nos. 329 of 2003 and batch, no

notice was served on the appellant. Therefore, the appellant was PNR,J & PSS,J CCCA No.66 of 2020

not aware of the proceedings taken up by the trial Court. Before

suit was disposed of, first time, both plaintiffs were represented by

different Lawyers. After the remand, appellant was not represented

by a lawyer as no notice was given to the appellant on remand and

only lawyer for first plaintiff appeared. Appellant came to know

only for the first time when he received summons in O.S.No.293 of

2019 pending in the Court of the X Additional Chief Judge, City

Civil Court, Hyderabad instituted by the first respondent and

immediately he has taken steps to file this appeal.

12.2. He would further submit that as per the judgment and

decree passed by this Court in CCCA No. 329 of 2003, payment of

Court fee would arise only after assessing the value of the property

and after the assessment the plaintiffs had two months time to pay

the Court fee. The suit underwent several adjournments only for

the purpose of ascertaining valuation of the suit schedule property.

The valuation was furnished only on 01.12.2014. No reasonable

opportunity was given to the appellant to pay additional court fee

after valuation of the suit schedule property was furnished by the

Registration Department.

12.3. He would further submit that the suit was disposed of in

terms of the compromise. The decree granted by the trial Court

was affirmed by this Court and by the Hon'ble Supreme Court.

The remand by this Court was only with reference to determination

of Court fee payable in terms of the compromise recorded by the

trial Court and therefore the trial Court grossly erred in dismissing

the suit and is thus per-se illegal.

PNR,J & PSS,J CCCA No.66 of 2020

12.4. He would further submit that the trial Court went beyond

the scope of remand. The suit was remanded only for the purpose

of determining the additional court fee payable, therefore the trial

Court could not have dismissed the main suit when the decree

granted by the trial Court was affirmed by this Court and Hon'ble

Supreme Court. The rights accrued by virtue of a compromise

which were affirmed by decree of the trial Court cannot be taken

away on mere ground of not paying the Court fee.

12.5. He would further submit that payment of appropriate Court

fee is between the plaintiffs and the State. Therefore, 'inter-partes'

the compromise entered into is binding and said compromise

cannot be nullified on mere ground of non payment of the

appropriate Court fee. It is a curable defect and even at this stage

it can be cured. This Court should permit the appellant to deposit

the balance Court fee and to confirm the decree as originally

granted by the trial Court and affirmed by this Court and Hon'ble

Supreme Court. The said course would be just and equitable. The

substantive right created and vested in the appellant by virtue of

compromise cannot be nullified on the specious ground of not

paying the appropriate court fee.

12.6. In support of his submissions, learned senior counsel

placed reliance on the following decisions:

Sri Rathnavarmaraja Vs Vimla1; Madanlal Vs MST

Chhotaka Bibi2; N.Balakrishnan Vs M.Krishnamurthy3;

(1961) 3 SCR 1015

1970 (1) SCC 769

(1998) 7 SCC 123 PNR,J & PSS,J CCCA No.66 of 2020

Perumon Bhagvathy Devaswom Vs Bhargavi Amma4; A.Nawab

John and others Vs V.N.Subramaniyam5; Manoharan Vs

Sivarajan and others6; State/CBI (SPE) Vs Subrate

Bhattacharjee and another7.

13.1. Per contra, learned senior counsel Sri S.Niranjan Reddy,

appearing for first respondent submitted that per-se suit is not

maintainable unless proper court fee is paid. It is the duty of the

plaintiffs to comply with the mandate given by the trial Court and

affirmed by this Court regarding payment of Court fee. He would

submit that order XLI Rule 26A of the CPC has no application to

the facts of this Case. The trial Court is required to issue notices

by fixing the date of next hearing only when the appellate Court

remands a case on aspects falling under Rule 23, 23A and 25.

According to learned senior counsel, none of the three

contingencies provided in Order XLI Rule 26A of CPC are attracted

to the case on hand. He would submit that except Order XLI Rule

26A there is no other provision in CPC which requires issuance of

notice to the parties to the suit on remand.

13.2. According to learned senior counsel, if Court fee is not paid

the suit is liable to be dismissed and in spite of affording due

opportunity, as plaintiffs failed to pay the court fee, the trial Court

has rightly dismissed the suit.

13.3. He would submit that there are no bona fides in

prosecuting the litigation. The appellant is only trying to drag on

(2008) 8 SCC 321

(2012) 7 SCC 738

(2014) 4 SCC 163

(2007) 2 Gauhati Law Reports 479 PNR,J & PSS,J CCCA No.66 of 2020

the litigation and frustrate the fruits of the decree granted in

favour of the defendants by dismissing the suit.

13.4. He would submit that the delay of 1691 days in instituting

the appeal, per-se, is on the very high side and no case is made out

for condoning the delay. The appellant failed to explain each day's

delay. When the delay is huge, it is his bounden duty to assign

cogent reasons. He would further submit that the delay of 1691

days cannot be seen in isolation. The appellant was silent for 16

years and no explanation is offered on his conduct in prosecuting

the case before the trial Court from the year 2004/2005 till 2015.

It was the bounden duty of the appellant to prosecute the suit and

to comply with the mandate of the trial Court as affirmed by the

appellate Court to pay the balance court fee. Knowing fully well

that unless the balance court fee is paid, the decree recording the

compromise cannot survive, he deliberately avoided payment of

additional court fee. He would submit that the appellant is trying

to play game of hide and seek by not appearing before the trial

Court and not complying with the directions of this Court to pay

the additional court fee and coming to this court to set aside the

decree granted by the trial Court dismissing the suit after a long

delay of 1691 days. He would submit that as per the valuation of

the property determined by the registration department, the

appellant was required to pay Court fee as per valuation of the

suit schedule property as applicable in the year 2004. If what is

contended by the appellant is accepted, he is required to pay the

same court fee even after 17 years whereas the valuation of the

suit property as of now is far higher. Thus, no indulgence can be PNR,J & PSS,J CCCA No.66 of 2020

shown by this Court to permit the appellant to pay the same Court

fee as payable in the year 2004 after 17 years.

13.5. He further submitted that it cannot be said that appellant

was not aware of the mandate of this Court for payment of Court

fee and pendency of suit before the trial Court. By referring to

paragraphs 9, 10,12 and 13 of the affidavit filed in support of

I.A.No.1 of 2020, he would submit that what is stated therein is a

blatant lie. He would submit that as can be seen from the affidavits

filed in CCCAMP No.331 OF 2006 of 2006 in CCCA No.329 of 2003

and CCCAMP No.332 of 2006 in CCCA No.350 of 2003, deponent

to the affidavit filed in support of this application was also

deposing on behalf of both the plaintiffs in the suit. In CCCAMP

No.331 of 2006 in CCCA No.329 of 2006 and CCAMP No.332 of

2006 in CCCA No.350 of 2003 deponent sought for listing of the

appeal suits under the caption "for being mentioned" for seeking

clarification with regard to observation made as to calculate the

court fee. It was pleaded that the value of the subject matter of the

compromise was Rs.4 crores, and plaintiffs offered to pay court fee

on amount of Rs.4 crores and accordingly this Court was pleased

to remand to the trial Court, for limited purpose of calculation of

the Court fee by treating the value of the suit schedule property as

Rs.4 crores only. It was pleaded that there was ambiguity on this

aspect and it requires clarification. He would further submit that

as evident from the record CCCAMP No.11963 of 2004 (I.A.No.2 of

2004) was filed seeking extension of three months time for

assessing the value of the property. Said I.A. was disposed of on

2.2.2006. Therefore, appellant cannot plead ignorance of

proceedings pending before the trial Court. Further, even PNR,J & PSS,J CCCA No.66 of 2020

according to this appellant, at least the first plaintiff was

represented by an advocate before the trial Court.

13.6. He would further submit that during this period he was

pursuing with the registration department to register the deed

sought to be registered by the first plaintiff, in favour of the second

plaintiff when registering authority refused to register,

W.P.No.25181 of 2006 was filed. Alleging disobedience of the order

of this Court C.C.No.1344 of 2007 was filed. The deponent herein

deposed to the affidavit filed in support of W.P.No.23123 of 2012

filed by the first plaintiff challenging the endorsement given by the

registering authority on 12.1.2012 insisting to secure 'no objection

certificate' for the purpose of registration of the document sought

to be registered by plaintiff No.1 in favour of plaintiff No.2. Based

on the directions issued by this Court, he got the document

registered in his favour. Again he was also deponent to the affidavit

filed in WP 11314 of 2014. This writ petition was filed challenging

the decision of the Municipal Commissioner rejecting the building

plans submitted by the appellant for construction of commercial

complex on the very same land. During this period, he filed two

applications before this Court in the year 2006. All these aspects

clearly point out that appellant was aware of the proceedings

before the trial Court, watching from side lines and therefore what

is pleaded is a blatant lie and amounts to playing fraud on the

Court.

13.7. He would further submit that the Division Bench of this

Court in judgment dated 12.4.2004 while remanding the suit for

determination of valuation of the property and calculation of PNR,J & PSS,J CCCA No.66 of 2020

additional court fee clearly observed that the judgment rendered by

the trial Court in O.S.No.69 of 2003 has binding effect only on

payment of Court fee. Thus, the appellant was aware of the

consequences of non payment of court fee and therefore assertion

that the rights accrued to them by virtue of a compromise arrived

between the parties and recorded by the trial Court is erroneous.

The limited right accrued to the appellant by virtue of compromise

decree is subject to payment of court fee.

13.8. He would further submit that Section 23 of the Indian

Registration Act requires registration of the decree within four

months of the date of decree. Unless the compromise decree is

registered it has no legal sanctity. No steps were taken to seek

registration of the decree as required by section 23 of the

Registration Act, 1908. He would further submit that even

otherwise deed of compromise also requires registration within four

months from the date of compromise but no endeavour was made

by the appellant. The appellant can claim to have acquired right

as per the compromise deed only if the payment of court fee was

made as mandated by this Court in paragraph 72 of judgment in

CCCA No.329 of 2003 and batch and registered as required by

Section 23 of the Registration Act, 1908.

13.9. In view of the time limit specified by this Court and having

regard to the provisions in Section 23 of the Registration Act, 1908,

Article 137 of the Limitation Act, 1963 and no application seeking

extension of time is filed. Having regard to history of litigation it is

not just and equitable to treat such delay as reasonable and

justified.

PNR,J & PSS,J CCCA No.66 of 2020

13.10. He would further submit that consequent to the remand

with specific observations in paragraph 72 of the judgment of this

Court, the suit was brought back to life before the trial Court and

affirmation of the earlier judgment and decree is subject to

payment of additional Court fee. Since suit was brought to life and

plaintiffs did not prosecute their suit, trial Court could dismiss the

suit on that ground, therefore, no error was committed by the trial

Court.

13.11. In support of his contentions, learned senior counsel

placed reliance on the following decisions:

Rama Narang Vs Ramesh Narang and Another8;

Basawaraj and another Vs Special Land Acquisition Officer9;

Lanka Venkateswarlu Vs State of Andhra Pradesh10; Balwant

Singh Vs Jagdish Singh and others11 ; Ramlal and others Vs

Rewa Coalfields Ltd12; Srinagar Kanwar Vs Hari Singh13.

14. Issue for consideration is whether petitioner/appellant is

entitled to condone delay of 1691 days in filing the CCCA No. 66 of

2020?

15. It is made clear at the outset that as the issue is at the stage

of consideration of application to condone the delay in preferring

the appeal, the court is not dwelling into merits of the case.

(2006) 11 SCC 114

(2013) 14 SCC 81

(2011) 4 SCC 363

(2010) 8 SCC 685

AIR 1962 SC 361

RLW 2006 (1) Raj 275 = 2006 (1) WLC 51 PNR,J & PSS,J CCCA No.66 of 2020

16. Section 96 of CPC vests right in an aggrieved party to avail

remedy of appeal. Against the decision of the District Court,

appeal shall lie to the High Court. Remedy of appeal has to be

availed within 90 days from the date of decree in the suit. Section

514 of the Limitation Act vests discretion in the High Court to

entertain an appeal filed after 90 days by condoning the period of

delay. Such condonation is subject to the appellant showing

sufficient cause for not availing the remedy of appeal within 90 days.

17. Scope of Section 5 of the Limitation Act and scope of power

of Court to condone the delay in filing an appeal was subject of

consideration in plethora of precedent decisions of this Court and

the Hon'ble Supreme Court. Suffice to note few land mark

decisions to understand the concept of sufficient cause.

17.1. In Perumon Bhagvathy Devasom (supra) and

N.Balakrishnan (supra), the Supreme Court considered what is

meant by 'sufficient cause' and the scope of exercising of discretion

in condoning delay.

17.2. In Maniben Devraj Shah v. Municipal Corporation of

Brihan Mumbai15, the Hon'ble Supreme Court held as under:

"14. ...The law of limitation is founded on public policy. The Limitation Act, 1963 has not been enacted with the object of destroying the rights of the parties but to ensure that they approach the court for vindication of their rights without unreasonable delay. The idea underlying the concept of limitation is that every remedy should remain alive only till the expiry of the period fixed by the legislature. At the same time, the courts are empowered to condone the delay provided that sufficient cause is shown by the applicant for not availing the remedy within the prescribed period of limitation.

S.5. Extension of prescribed period in certain cases.--Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation.--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.

(2012) 5 SCC 157 PNR,J & PSS,J CCCA No.66 of 2020

15. The expression "sufficient cause" used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which serves the ends of justice. No hard-and-fast rule has been or can be laid down for deciding the applications for condonation of delay but over the years this Court has advocated that a liberal approach should be adopted in such matters so that substantive rights of the parties are not defeated merely because of delay.

16. In Ramlal v. Rewa Coalfields Ltd. [AIR 1962 SC 361] this Court while interpreting Section 5 of the Limitation Act, laid down the following proposition: (AIR pp. 363-64, para 7)

"7. In construing Section 5 (of the Limitation Act) it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice."

17. In Collector (LA) v. Katiji [(1987) 2 SCC 107] this Court made a significant departure from the earlier judgments and observed: (SCC pp. 108-09, para 3)

"3. The legislature has conferred the power to condone delay by enacting Section 5 of the Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on 'merits'. The expression 'sufficient cause' employed by the legislature 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 is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such 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.

PNR,J & PSS,J CCCA No.66 of 2020

(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 legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so....."

18. In N. Balakrishnan v. M. Krishnamurthy [(1998) 7 SCC 123], the Court went a step further and made the following observations: (SCC pp. 127-28, paras 9, 11 & 13)

"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 uncondonable 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.

xxx

11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

xxx

13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of PNR,J & PSS,J CCCA No.66 of 2020

the applicant, the court shall compensate the opposite party for his loss."

(emphasis supplied)

17.3. On review of precedent decisions in Esha Bhattacharjee v.

Raghunathpur Nafar Academy16 the Supreme Court summarized

the principles to be applied while deciding a condonation of delay

petition as under:

"21. From the aforesaid authorities the principles that can broadly be culled out are

21.1. (i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

21.2. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation.

21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

21.7. (vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

(2013) 12 SCC 649 PNR,J & PSS,J CCCA No.66 of 2020

21.12. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: -

22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

22.3 (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

22.4. (d) The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be exhibited in a non- challant manner requires to be curbed, of course, within legal parameters."

(emphasis supplied)

18. From the precedent decisions, it is discernible that the Court

is vested with power to condone the delay in filing an appeal if

sufficient cause is shown by the litigant. While assessing the

reasons for delay and the quantum of delay, Court should adopt

liberal approach. It is not necessary that person should explain

every day's delay in literal sense. When substantial justice and

technical considerations are pitted against each other cause of

substantial justice should be preserved. Any course of action

adopted by the Court must serve the ends of justice. Once the

Court is convinced that delay is properly explained and is non-

deliberate, court must lean in favour of condoning the delay.

19. However, while exercising its discretion to condone delay,

the Court is required to see whether delay is satisfactorily

explained; there was no deliberate, wanton delay in prosecuting

the litigation; litigant was not resorting to dilatory tactics; whether PNR,J & PSS,J CCCA No.66 of 2020

explanation lacks bona fides of litigant. The Court should also

keep in mind the prejudice that may be caused to decree holder.

The right accrued to decree holder by lapse of time due to his own

failure to prosecute legal remedy within reasonable time cannot be

lightly ignored. When the delay is long, as in this case, the

scrutiny is rigid and burden is heavy on the litigant to explain

every aspect of his conduct and behaviour, fairly and freely during

the interregnum. Such assertions should not be fanciful.

20. In the above backdrop, it is necessary to consider, whether

the appellant has furnished sufficient cause for the delay of 1691

days in filing this appeal. Further, conduct of appellant must also

stand the test of bona-fides, fair and frank submissions, not

resorting to false hood, misrepresentation and suppression. To

condone the delay of 1691 days in preferring the appeal, petitioner-

appellant in his affidavit filed in support of the I.A. deposed that he

did not receive notice in the suit after its remand and till he

received summons in O.S.No.293 of 2019 instituted in the

X Additional Chief Judge, City Civil Court, he was not aware of

dismissal of the suit and therefore delay is not deliberate and

willful. On the contrary, if delay is not condoned grave prejudice

would be caused to him.

21. To appreciate this assertion of petitioner/appellant, it is

necessary to note few landmarks in the journey petitioner/

appellant has undertaken in his pursuit to own the suit property,

and to develop the same, till this application is filed.

PNR,J & PSS,J CCCA No.66 of 2020

21.1. On 03.11.2004 the XIII Additional Chief Judge, City Civil

Court, addressed letter to the High Court Registry to grant 3

months to assess the value of the property. In the said letter

learned Judge was complaining that advocates to parties were not

cooperating. It is interesting to note that the learned Judge

records that except advocate for plaintiff no.2 (the appellant

herein), other parties or counsel did not appear. The same was

registered as CCCA MP No.11963 of 2004. Taking note of the

content in the said letter, by order dated 25.11.2004 time was

extended by three months.

21.2. Again a letter was written by the XIII Additional Chief

Judge, City Civil Court, dated 24.10.2005, seeking extension of

time complaining that Advocates to the parties were not attending

and not cooperating to ascertain the value of the property. This

letter was registered as CCCA MP No.816of 2005. On 06.02.2006,

Division Bench directed the lower court to pass orders within a

period of one month. In both occasions orders of this Court were

passed in the presence of all the parties.

21.3. CCCA MP No.331 of 2006 in CCCA No.329 of 2003 and

CCCAMP No. 332 of 2006 in CCCA No. 350 of 2003 were filed by

the plaintiff no.2 in the suit (appellant herein) seeking to list the

appeals under the caption "for being mentioned" to clarify the

effect of the order in paragraph-12 of the judgment. In this

clarification petitioner-appellant contended that the value of the

property was shown as Rs.4 crores only and the matter was

remanded only to pay the required court fee on the said amount.

The said applications were dismissed as withdrawn on 01.08.2007.

PNR,J & PSS,J CCCA No.66 of 2020

21.4. After the remand and when suit was pending in the trial

Court, between 2006 to 2016, several writ petitions were filed in

this court concerning the very same property. These writ petitions

were filed either by the appellant or by the plaintiff no.1, but

authorized person to depose the affidavits, petitions and to enter

appearance is same in all the writ petitions, Sri Raj Kumar

Malpani. Few are noted hereunder:

(i) Appellant filed W.P.No.25181 of 2006 against rejection

to register the development agreement-cum-GPA dated 27.10.2006

and subsequent sale deed dated 28.10.2006 on Acs.6.00 of land,

which is traceable to the settlement arrived between the parties,

by the Sub Registrar. The averments in the affidavit in support of

the writ petition also disclose that the plaintiff no.1 (in O.S. No. 69

of 2003 ) executed GPA on 19.09.2005 in favour of the deponent to

this application as Managing Director of the plaintiff no.2, (in O.S.

No. 69 of 2003) to represent plaintiff no.1 in all legal proceedings.

Based on the directions of the Court, those two documents were

registered.

(ii) Appellant filed W.P.No.2731 of 2012 seeking direction

to respondents not to insist No Objection Certificate from the

revenue authorities to apply for construction of commercial

complex.

(iii) W.P.No.23132 of 2012 was filed challenging the

rejection of No Objection certificate (NOC) for construction of

commercial complex by the District Collector.

PNR,J & PSS,J CCCA No.66 of 2020

(iv) Appellant filed W.P.No.11349 of 2014 alleging that

there is an attempt made by the revenue authorities to dispossess

the appellant from the suit schedule land.

(v) Appellant filed W.P.No.13158 of 2016 praying to direct

the Greater Hyderabad Municipal Corporation to release building

plan applied by the appellant to construct commercial complex in

the suit schedule land.

(vi) Appellant also filed C.C.No.1344 of 2007 and

C.C.No.829 of 2014 alleging non-compliance of the orders of the

Court in respective writ petitions. In CC No. 1344 of 2007 by order

dated 8.4.2007 this Court gave further directions. In compliance

of the directions of this Court in W P No. 25188 of 2006 and CC

No. 1344 of 2007 the documents were registered on 27.10.2006

and 28.10.2006.

(vii) In all the writ petitions mentioned above, the narrative

is same and issue in one writ petition was flowing into another writ

petition. Over all, the litigation process on the writ jurisdiction

side, in all the above cases concerns the development activity

sought to be taken up by the appellant on the suit schedule

property flowing out of compromise dated 8.3.1999 entered into

between the parties to the suit which was recorded while disposing

of the O.S. No. 69 of 2003 on 3.4.2003.

21.5. Appellant sought to raise a strange plea that after the case

was reopened, trial Court ordered notice on 19.12.2009 but no

notice was served on the appellant. Taking this submission on its

face value, it is not stated how prejudice is caused to him.

PNR,J & PSS,J CCCA No.66 of 2020

Dismissal of suit results in dissolving the earlier decree. Therefore,

restoration of a suit dismissed for non-prosecution is to the

advantage of the plaintiffs. There can be some justification if a

defendant complains that on restoration notice was not served but

not by plaintiff. Further, if appellant did not receive notice after

suit was reopened, it would mean that for him suit was not

restored. If that is so and decree granted earlier was dissolved,

it is not stated why appellant kept quiet for more than a decade. It

is apparent that this assertion is made without sense of

responsibility and more intended to divert attention from his

lethargy and to gain sympathy by showing as if trial Court

committed grave error.

21.6. Appellant further asserts that two different lawyers were

engaged by plaintiffs 1 and 2 in the first round of suit and on

remand and on reopening Advocate for plaintiff No.2 did not have

notice. This is again a misleading statement. As averred in the

several writ petitions noted above, plaintiff No.1 executed General

Power of Attorney to Sri Raj Kumar Malpani, who is Managing

Director/Director of appellant company authorizing him to

represent plaintiff No. 1 in all legal proceedings and has been doing

so. Thus, plaintiff No.1 and plaintiff No.2 are not separate and in

the facts of the case, it cannot be said that both are not abreast of

stages of cases in various Courts. Thus, what is asserted is

falsehood, a misleading statement.

22. The chronology of dates and events clearly point out that

appellant was abreast of happenings in the civil Court. It is also

apparent that appellant has been actively, dealing with very same PNR,J & PSS,J CCCA No.66 of 2020

property and pursuing the litigation at various stages in his

craving to develop the property. From CCCA MP No.11963 of 2004

taken up by the court based on the letter written by the XIII

Additional Chief Judge, City Civil Court, Hyderabad, dated

03.11.2004 seeking extension of time, it is apparent that his

counsel was appearing in the trial Court.

23. On remand, the trial court has taken up the O.S.No.69 of

2003 to determine the Court fee payable by the plaintiffs, the trial

Court called for information on the value of the subject property

from the Sub-Registrar of Registration Department. The suit

underwent several adjournments awaiting report. Holding that

plaintiffs were not prosecuting the suit, it was dismissed for default

on 13.11.2009 but was restored suo-moto by order dated

19.12.2009. It appears from the docket proceedings of the trial

Court, on 01.12.2014 trial Court recorded receiving market value

certificate and on request adjourned the suit to 03.12.2014. On

18.12.2014 the Court directed the Superintendent of the Court to

fix the court fee. From 30.12.2014 case was adjourned on several

occasions to pay court fee. Further, docket proceedings disclose

that there was representation on behalf of the appellant. Suit

underwent adjournments at the request of plaintiffs on several

occasions but from 20.02.2015 there was no representation on

behalf of the plaintiffs.

24. On 09.03.2015 after recording, 'No representation, Court fee

not paid, no further time will be granted', Court adjourned the suit

to 30.03.2015. On 30.03.2015, docket proceedings read as, "No PNR,J & PSS,J CCCA No.66 of 2020

representation by plaintiff till evening hours. Hence, the right of the

plaintiff is forfeited. Defendants arguments request time -

07.04.2015". Even after value of the suit schedule property was

determined, the plaintiffs did not evince interest in paying the

Court fee. It is thus apparent that plaintiffs were not cooperating

with the Court. Having no other go, the trial court forfeited the

right of plaintiffs by order dated 30.3.2015. As Court fee was not

paid, by judgment dated 28.4.2015 the trial Court dismissed the

suit.

25. The compromise petitions filed in the suit disclose that on

03.12.1998 plaintiff no.1 and plaintiff no.2 entered into agreement

in respect of suit property. In terms thereof, plaintiff no.2 agreed

to pay Rs.60,00,000/- (Rupees sixty lacks) to plaintiff no.1 to

construct 40,000 square feet commercial building on 3000 square

yards and to get the dispute between plaintiff no.1 and defendants

settled. In terms thereof, plaintiff no.2 stepped into the shoes of

plaintiff no.1. The terms of compromise also disclose that Acs.6.00

of land demarcated in green colour in the map would be the

absolute property of plaintiff no.2, subject to terms of agreement

with plaintiff no.1 and the defendants would be the absolute

owners and possessors of balance Acs.16.00 of land shown in

yellow and red colours in the map. It is thus apparent that the

appellant herein is beneficiary of compromise decree entered

between the plaintiffs and defendants in O.S.No.69 of 2003. It

cannot be assumed that appellant was not conscious that his

interest flowing out of compromise recorded in O.S. No. 69 of 2003

get extinguished, if Court fee is not paid.

PNR,J & PSS,J CCCA No.66 of 2020

26. At this stage, it is necessary to consider the decisions cited

by learned senior counsel for appellant to contend that delay in

paying Court fee can have no impact on the decree already passed

in the suit. We note hereunder the summary of said decisions:

26.1. In the case of Mannan Lal v. Chhotaka Bibi,17 the appeal

in question was a Special Appeal granted by certificate and its

maintainability with regards to the U.P. Act abolishing such

appeals. It was also noted in the judgment that the deficiency in

court fees was made good later.

26.2. In Manoharan v. Sivarajan (supra), Court held that the

High Court ought to have taken a more compassionate view in

light of the appellants inability to pay balance court fees due to

financial constraints while refusing to condone delay in filing of

application. This has no bearing on the matter in hand as

appellant has not taken any such specific stance of financial

constraint.

26.3. In A.Nawab John (supra), the Court held that the power to

condone delay in payment of court fee, although discretionary, is

conditional upon an acceptable explanation for such delay in

payment.

27. Though suit was decreed recording the compromise, the

trial Court having noticed that in terms of the compromise memo

valuation of the suit increased, observed that difference of Court

fee is required to be paid. In the appeals preferred against the

judgment and decree of the trial Court this issue was also raised

(1970) 1 SCC 769 PNR,J & PSS,J CCCA No.66 of 2020

before this Court. This Court having affirmed the decision of the

trial Court on reasons for judgment and decree, remanded the

matter to the trial Court for determination of appropriate value of

the suit schedule property and court fee payable by the plaintiffs.

28. Being a party to the appeal suit, the scope of remand is

known to the appellant. It is useful to extract paragraph-72 of the

judgment in CCCA No.329 of 2003 and batch. It reads as under:

"72. Finally, it is the arguments of the appellants that the plaintiffs did not pay the court fee and hence the judgment and decree cannot be passed. It is true that in the decree itself, the trial court with regard to payment of court fee held as follows:

"It is hereby directed to pay the court fee if any required to pay". Therefore, it goes to show that the said judgment will have the binding effect only on payment of the court fee. As the trial Court in its decree did not assess the value of the property relating to compromise and payment of court fee thereon, the matter is remanded to the trial court with a direction to assess the value of the property relating to compromise and the court fee payable thereon within a period of three months from the date of receipt of a copy of this order. On such assessment, the respective parties are directed to pay the same within a period of two months thereafter in the court below.

29. As seen from paragraph-72 of the judgment of this Court in

the appeals, this Court held that the judgment of the trial Court

will have binding effect only on payment of Court fee. It cannot be

said that appellant was not aware of the consequences of not

prosecuting the suit on remand in order to secure benefits of

compromise decree. No right accrues to him to deal with Acs.6.00

covered by compromise unless the court fee was paid. Therefore,

it is his responsibility and in his own interest to ensure that

appropriate value of the suit schedule property was determined

and court fee was paid thereon within the time stipulated by the

Division Bench of this Court. Further, as seen from CCCA MP PNR,J & PSS,J CCCA No.66 of 2020

No.331 of 2006 and CCCA MP No.332 of 2006, which were filed to

take up CCCA No.329 of 2003 and CCCA No.350 of 2003 as 'for

being mentioned' the appellant was conscious that the plaintiffs

were required to pay high amount of court fee and therefore was

praying to restrict the valuation of the property.

30. Further, from the operative direction of the Division Bench,

after the determination of the valuation, the plaintiffs were

required to pay court fee within a period of two months. From the

docket proceeding sheet before the trial Court filed by the

plaintiffs, it is noticed that by 01.12.2014, market value was

determined. Thus, from 01.12.2014 plaintiffs were required to pay

court fee within two months. Even after expiry of two months from

that date, trial Court accommodated the plaintiffs till 30.03.2015

i.e., for four months. No application was filed before this Court

seeking extension of time for payment of court fee nor Court fee

was paid within the time granted by the trial Court.

31. It is apparent that even though adequate time was available

and trial Court accommodated, for the reasons best known, the

plaintiffs did not choose to pay the court fee. Further, Section 11

of the Andhra Pradesh Court Fees and Suit Valuation Act, 1956

the plaint is liable to be rejected if the deficit fee is not paid.

In the facts of this case, the decisions relied by the senior counsel

for the appellant do not come to his rescue.

32. Furthermore, even after he received summons in another

suit on 02.05.2019 he kept quiet for about 17 months before

instituting this appeal. In paragraph-10 he vaguely avers that he

approached his Advocate and instructed him to apply for docket PNR,J & PSS,J CCCA No.66 of 2020

proceedings and was under bona fide impression that his Advocate

was pursuing the matter but to his utter shock and surprise there

was no progress and fed up with the inaction of the Advocate, he

applied for docket proceedings on 08.09.2020 and then instituted

the appeal. The pleadings in paragraph 10 are very vague. He has

not stated as to who was his Advocate, when he approached his

Advocate and how he was pursuing with the Advocate and why he

kept quiet for more than an year after informing the Advocate to

secure the certified copies. Having regard to delay of 17 months

even from 2.5.2019 appellant owes a responsibility to explain to

the court how he was prosecuting his legal remedies even from the

date of alleged knowledge to show his bona fides.

33. Thus, the conduct of the appellant would clearly show he

was only watching from the side lines and not intending to

prosecute the litigation as a bona fide person in asserting his right

before the trial Court after the remand and after the suit was

dismissed. More so, all through he was prosecuting the litigation

before this Court on the appellate side and under Article 226 of the

Constitution of India and with various statutory authorities

concerning the very same property.

34. We see no merit on reliance on Order XLI Rule 26-A of CPC.

Except in three contingencies mentioned in order XLI Rule 26-A of

CPC covered by Rules 23, 23-A and 25, Civil Procedure Code do

not envisage notice to the plaintiff on remand. The case is not

covered by those three contingencies. In no other circumstance of

remand, Civil Procedure Code envisages notice to parties. More

particularly in payment of appropriate Court fee. It is the duty of PNR,J & PSS,J CCCA No.66 of 2020

plaintiffs to pay proper court fee. Therefore, plaintiffs were

required to persuade the trial court to determine the value of the

property and to fix the court fee and pay the court fee as assessed.

Shelter under this provision is resorted only to cover up his

conduct. At any rate, this plea is not available to appellant as he

was represented by a counsel before the trial Court after remand.

Thus, what is contended amounts to speaking falsehood and

suppressing true and correct facts.

35. Further, the Appeal suit was disposed of in the presence of

parties to the suit. The Appellant was aware of reason for remand.

He being the plaintiff No.2 he is also aware of his duty to pay

additional Court fee.

36. In this background, it cannot be said that appellant was not

aware of the proceedings pending before the trial Court and the

orders passed therein even before the suit was finally decreed.

Since 24.8.2005, the day on which Supreme Court dismissed the

review petitions till filing of this appeal, appellant was watching the

progress of litigation from the side lines. The assertion of the

appellant that he was not aware till the summons were received in

O.S.No.293 of 2019 is only a lame excuse.

37. A litigant knocking the doors of justice is expected to be fair

and frank in his pleadings. Should disclose all relevant facts

which constitute cause of action on the issue raised and relief

sought and leave it to the Court to decide. Should not mislead the

Court or suppress true facts deliberately to gain undue advantage.

Burden is heavy on the litigant who seeks equity/discretionary

jurisdiction of the Court. Litigant cannot play 'hide and seek', 'pick PNR,J & PSS,J CCCA No.66 of 2020

and choose' the facts he likes to disclose and to suppress/keep

back/conceal other facts which are germane to plea urged in the

case.

38. It is apt to note the view expressed by Hon'ble Supreme

Court in K.D.Sharma Vs Steel Authority of India Limited18 and

Dalip Singh Vs State of Uttar Pradesh19 .

38.1. In paragraphs 36, 37 and 39 of K.D.Sharma, the Supreme

Court affirmed the view of the Kings Bench of United Kingdom in

R Vs Kingston Income Tax Commissioner, in the context of

prerogative writ. They read,

36....... If the applicant makes a false statement or suppresses material fact or attempts to mislead the court, the court may dismiss the action on that ground alone and may refuse to enter into the merits of the case by stating, "We will not listen to your application because of what you have done." The rule has been evolved in the larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it.

37. In Kensington Income Tax Commrs. Viscount Reading, C.J. observed: (KB pp. 495-96)

".... Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court conies to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the Court as to the true facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits. This is a power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived. Before coming to this conclusion a careful examination will be made of the facts as they are and as they have been stated in the applicant's affidavit, and everything will be heard that can be urged to influence the view of the Court when it reads the affidavit and knows the true facts.But if the result of this examination and hearing is to leave no doubt that the Court has been deceived, then it will refuse to hear anything further front the applicant in a proceeding which has only been set in motion by means of a misleading affidavit."

38.2. In Dalip Singh, the Supreme Court noted the trend in

litigation that was sweeping across the country even by the year

2010. It has noted,

(2008) 12 SCC 481

(2010) 2 SCC 114 PNR,J & PSS,J CCCA No.66 of 2020

"1. For many centuries Indian society cherished two basic values of life i.e. "satya" (truth and "ahimsa" (nonviolence), Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-Independence era and the people used to feel proud to tell truth in the Courts irrespective of the consequences. However, post-Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.

2. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of with tainted hands, is not entitled to any relief, interim or final."

(emphasis supplied)

39. There is deliberate suppression of facts. Statements are

made to mislead the Court to believe as if injustice is inflicted on

him. The assertion of the appellant is not bona fide. Appellant

resorted to speak falsehood. He was neither fair nor frank. His

hands are tainted, he abused the process of Court, for selfish ends.

There is no iota of doubt that appellant deceived the Court. The

actions of appellant amounts to polluting the stream of justice. As

held by the Hon'ble Supreme Court in Esha Bhattacharjee (supra)

the conduct, behaviour and attitude relating to inaction/negligence

by the appellant disentitle him to seek discretionary relief.

40. Further, it is the appellants assertion that a substantive

right has been created and vested in the appellant by virtue of the

compromise and it cannot be nullified merely due to the delay in

payment of court fee. To appreciate this submission, it is

important to note here paragraph 72 of the Division Bench order of

this Court in CCCAs disposed of on 12.4.2004. While remanding PNR,J & PSS,J CCCA No.66 of 2020

the matter back to the trial court, this Court specifically observed,

'Therefore it goes to show that the said judgment will have the

binding effect only on the payment of the court fee...'. This

conclusively points to the fact that no right accrues to the

appellant from the trial Court decree, substantive or otherwise

unless proper court fee is paid.

41. The issue of prejudice to other side is also a crucial factor to

be looked into while considering the application to condone the

delay. Though, appellant's interest in the property and subsequent

claim to acquire the land is traceable to the compromise entered

on 08.03.1999 which was the basis to grant decree dated

03.04.2003 in O.S.No.69 of 2003, appellant did not evince interest

to prosecute the suit on remand for determination of valuation of

the suit schedule land and to pay the court fee. He allowed the

proceedings before the trial court to drag-on, did not cooperate

with the court for early payment of court fee and did not appear in

the case when his presence was required the most. Even after the

dismissal of the suit he took his own time to prosecute appeal

remedy. By his conduct, he allowed the rights crystallize in favour

of the 1st respondent. Accepting the plea of appellant would mean

reopening the healed wound after six years and protracting the

litigation. For his lethargy, the Court can not cause hardship to

the opponent. More so, when the appellant to blame for the

present state of affairs.

PNR,J & PSS,J CCCA No.66 of 2020

42. For all the afore stated reasons this application is liable to be

dismissed. It is accordingly dismissed. Consequently, CCCA No.

66 of 2020 stands dismissed. No costs. Miscellaneous

Applications, if any pending stand closed.

__________________________ JUSTICE P.NAVEEN RAO

_________________________ JUSTICE P.SREE SUDHA

Date: 07.01.2022 Tvk/kkm

Note :LR copy to be marked.

PNR,J & PSS,J CCCA No.66 of 2020

HONOURABLE SRI JUSTICE P. NAVEEN RAO

&

HONOURABLE SMT JUSTICE P SREE SUDHA

I.A. No. 1 OF 2020

And

CCCA No. 66 OF 2020

Date :07-01-2022