MANOHARAN vs. SIVARAJAN .

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 10581 OF 2013 (Arising out of SLP(C) NO. 23918 OF 2012) MANOHARAN …APPELLANT Vs. SIVARAJAN & ORS. …RESPONDENTS J U D G M E N T JUDGMENT V.Gopala Gowda J. Leave granted. 2. This appeal is filed by the appellant questioning the correctness of the judgment and final Order dated 21.03.2012 passed by the High Court of Kerala at Ernakulam in RFA No. 678 of 2011 Page 1 C.A.@ SLP© No.23918 of 2012 - 2- urging various facts and legal contentions in justification of his claim.

find out whether the appellant is entitled for the relief as prayed in this appeal. The appellant approached the respondent no. 1 - a money lender, for a loan of 2,20,000/-. The respondent no. 1 agreed to give him the loan in return of execution of a sale deed with respect to 3 cents of land in re-survey No. 111/13-1 in Block No. 12 of Maranalloor village by the appellant in his JUDGMENT favour. It was agreed upon between the parties that the respondent no. 1 will reconvey the property in favour of the appellant on repayment of the loan. The appellant accordingly executed sale deed No. 575 of 2001 at sub Registrar’s office at Ooruttambalam with respect to 3 cents of land in Re-survey No.111/13-1 in Block no.12 of Maranalloor village in Page 2 C.A.@ SLP© No.23918 of 2012 - 3- favour of respondent no.1. The respondent no. 1 executed an agreement of re-conveyance deed in favour of the appellant regarding the above

4. The learned senior counsel, Mr. Basanth R. appearing on behalf of the appellant argued that the appellant approached the respondent no.1 several times with money for re-conveying the property in favour of the appellant as was agreed upon between them but the respondent no. 1 evaded from doing so. 5. It is also the case of the appellant that respondent no.1, instead of issuing a deed of re- JUDGMENT conveyance, sold the property to Respondent nos. 2 and 3 without the knowledge of the appellant. The appellant sent a legal notice to the respondent no.1 requesting him to appear before the sub Registrar’s office for the execution of re-conveyance deed regarding the plaint schedule property to which the respondent no. 1 did not oblige. The appellant then Page 3 C.A.@ SLP© No.23918 of 2012 - 4- filed a suit being OS No. 141/2007 before the Court of sub Judge, Neyyattinkara for mandatory injunction, for declaration of the sale deed executed by

as null and void, for execution of re-conveyance deed in his favour and also for consequential reliefs. The suit was valued at 3,03,967/- and the court fee was th 28,797/-. The appellant paid 1/10 of the valued at court fee i.e., 2880/- at the time of filing the suit. The Court of sub Judge, Neyyattinkara granted injunction in favour of the appellant restraining the respondents from carrying out new construction activities including the parts of the plaint schedule JUDGMENT property until further orders. 6. The court of sub Judge, Neyyattinkara heard the application for extension of time sought by the appellant for paying the balance court fee. However, the application was rejected and the file was closed by the learned sub Judge. The appellant then filed Regular First Appeal No. 678 of 2011 along with an Page 4 C.A.@ SLP© No.23918 of 2012 - 5- application for condonation of delay in filing the appeal. The High Court dismissed the application for condonation of delay on the ground that the delay in

and consequently, dismissed the Regular First Appeal filed by the appellant. The High Court’s opinion that the appellant has not given any ground for delay in filing the Regular First Appeal is not sustainable since the appellant has categorically claimed that he was not aware of the rejection of the suit of the appellant for delayed payment of court fee by the learned sub Judge. 7. In the light of the facts and circumstances of JUDGMENT the case, the following points would arise for our consideration: 1.Whether the learned sub Judge was justified in rejecting the suit for non- payment of court fee? Page 5 C.A.@ SLP© No.23918 of 2012 - 6- 2.Was the appellant entitled to condonation of delay for non- payment of court fee by the learned sub Judge?

rejecting the application for condonation of delay filed by the appellant against the decision of the learned sub judge who rejected the suit of the appellant for non- payment of court fee? 4.What Order? Answer to Point no. 1 8. Section 149 of the Civil Procedure Code JUDGMENT 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 Page 6 C.A.@ SLP© No.23918 of 2012 - 7- 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

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. JUDGMENT 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 Page 7 C.A.@ SLP© No.23918 of 2012 - 8- learned sub Judge is wrong and is liable to be set aside and accordingly set aside. Answer to Point no.2 9. In the case of State of Bihar & Ors. v. Kameshwar 1 Prasad Singh & Anr. , it was held that power to condone the delay in approaching the Court has been conferred upon the Courts to enable them to do substantial justice to parties by disposing the cases on merit. The relevant paragraphs of the case read as under: “11. Power to condone the delay in approaching the Court has been conferred upon the Courts to enable them to do substantial justice to parties by disposing of matters on merits. This Court in Collector, Land Acquisition, Anantnag v. Mst. Katiji (1987)ILLJ 500 SC held that the expression 'sufficient cause' employed by the legislature in the Limitation Act is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice-that being the life purpose for the existence of the institution of Courts. It was further observed that a liberal approach JUDGMENT 1 (2000) 9 SCC 94 Page 8 C.A.@ SLP© No.23918 of 2012 - 9- 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. JUDGMENT 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 Page 9 C.A.@ SLP© No.23918 of 2012 - 10-

‘……The expression 'sufficient cause' should, therefore, be considered with pragmatism in justice-oriented process approach rather than the technical Page 10 C.A.@ SLP© No.23918 of 2012 - 11-

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Page 12 C.A.@ SLP© No.23918 of 2012 - 13- condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refuses to condone the delay. In such cases, the superior Court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammelled by the conclusion of the lower Court.” 10. In the case in hand, it is clear from the evidence on record that the appellant could not pay JUDGMENT 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 Page 13 C.A.@ SLP© No.23918 of 2012 - 14- compassionate attention from the Court of sub Judge in the light of the directive principle laid down in Article 39A of the Constitution of India which is

duty of the courts to see that justice is meted out to people irrespective of their socio economic and cultural rights or gender identity. 11. Further, Section 12(h) of the Legal Services Authorities Act, 1987 provides that every person who has to file or defend a case shall be entitled to legal services under this Act if that person is: “in receipt of annual income less than rupees nine thousand or such other higher amount as may be prescribed by the State Government if the case is before a court other than the Supreme Court, and less than rupees twelve thousand or such other higher amount as may be prescribed by the Central Government, if the case is before the Supreme Court” JUDGMENT Further, Section 12 of the Kerala State Legal Services Authorities Rules, 1998 states that: “12. Any person whose annual income from all sources does not exceed Rupees Twelve Page 14 C.A.@ SLP© No.23918 of 2012 - 15- Thousand shall be entitled to legal services under clause (h) of Section 12 of the Act”. Therefore, subject to the submission of an affidavit of his income, the court fee of the appellant could have been waivered or provided by the District Legal Services Authority, instead of rejection of the suit. 12. Further, in the case of State of Maharashtra V. 2 Manubhai Pragaji Vashi and Others , it has been held that :

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13. Further, Article 39A of the Constitution of JUDGMENT 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 Page 16 C.A.@ SLP© No.23918 of 2012 - 17- Court, the appellant deserved waiver of court fee so that he could contest his claim on merit which involved his substantive right. The Court of sub Judge erred in rejecting the case of the appellant due to non- payment of court fee. Hence, we set aside the findings and the decision of the Court of sub Judge and condone the delay of the appellant in non-payment of court fee which resulted in rejection of his suit. Answer to Point no. 3 14. Having answered Point nos. 1 and 2 in favour of the appellant, we are inclined to answer point no. 3 JUDGMENT as well in his favour. In the case of Muneesh Devi v. U.P. Power 3 Corporation Ltd. and Ors . , it was held as under:

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15. In the case in hand, the High Court, vide its impugned judgment dated 21.03.2012 held that the Page 18 C.A.@ SLP© No.23918 of 2012 - 19- appellant has not provided sufficient grounds for delay in filing the appeal. This decision of the High Court is unsustainable in law. The appellant

advocate’s office at Neyyattinkara on 24.05.2011 to enquire about the status of the suit. His advocate informed him that the learned sub Judge has rejected the suit on 11.8.2008 for non-payment of balance court fee. The advocate claimed that he has informed the same to the appellant through a postal card but the appellant claims that the same has not reached him and he was under the impression that his application for extension of time for payment of JUDGMENT court fee will be allowed by the learned sub Judge. He further claimed that he had applied for procurement of the certified copy of the decision of the learned sub Judge on the same day. 16. The learned senior counsel Mr. K.P. Kylasantha Pillay, appearing on behalf of the respondents alleged that the appeal of the appellant before this Page 19 C.A.@ SLP© No.23918 of 2012 - 20- court is based on wrong and frivolous grounds. The material produced by them in support of their contention is totally based on the merit of the

case, the material produced by the respondents in support of their contention becomes irrelevant. We have condoned the delay in paying the court fee by the appellant while answering point nos. 1 and 2. We see no reason in rejecting the application filed by the appellant for condonation of delay in filing the appeal before the High Court as well. 17. In view of the aforesaid reasons, the impugned judgment passed by the High Court is not sustainable JUDGMENT and is liable to be set aside as per the principle laid down by this Court in as much the High Court erred in rejecting the application for condonation of delay filed by the appellant. We accordingly, condone the delay in filing the appeal in the High Court as well. Page 20 C.A.@ SLP© No.23918 of 2012 - 21- Answer to Point no. 4 18. In view of the reasons assigned while answering

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 JUDGMENT 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 Page 21 C.A.@ SLP© No.23918 of 2012 - 22- 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

direct the trial court to adjudicate on the rights of the parties on merit and dispose of the matter as expeditiously as possible. 19. The appeal is allowed in terms of the observations and directions given as above to the trial court. There will be no order as to costs. ………………………………………………………………………J. [SUDHANSU JYOTI MUKHOPADHAYA] JUDGMENT ………………………………………………………………………J. [V. GOPALA GOWDA] New Delhi, November 25, 2013 Page 22