AJAY DABRA versus PYARE RAM & ORS. on 31 January 2023

[2023] 1 S.C.R. 449

AJAY DABRA

v.

PYARE RAM & ORS.

(Civil Appeal No. 716 of 2023)

JANUARY 31, 2023

[PAMIDIGHANTAM SRI NARASIMHA ANDSUDHANSHU DHULIA, JJ.]

Limitation Act, 1963: s.5 – Delay in filing appeal –Condonation of – Held: An appeal has to be filed within thestipulated period, prescribed under the law – Belated appeals canonly be condoned when sufficient reason is shown before the courtfor delay – In the present case, the delay has not been explained tothe satisfaction of the court – The only reason assigned by theappellant for the delay of 254 days in filing the first appeal wasthat he was not having sufficient funds to pay the court fee – Thiswas not found to be a sufficient reason for the condonation of delayas the appellant was an affluent businessman and a hotelier – Evenit is presumed that the appellant was short of funds and was notable to pay court fee, nothing barred him from filing the appeal asthere is provision for filing a defective appeal, i.e., an appeal whichis deficient as far as court fee is concerned, provided the court feeis paid within the time given by the Court – Though s.4 of CourtFees Act states that an appeal cannot be filed before a High Courtwithout court fee, s.149 CPC, which gives power to court to allowthe person to pay the court fees at later stage, acts as an exceptionor even a proviso to s.4 of Court Fees Act – The reasons assignedfor the delay in filing the appeal cannot be a valid reason forcondonation of the delay, since the appellant could have filed theappeal deficient in court fee under the provisions of law – Hence,High Court was right in dismissing s.5 application of the appellant– No case for interference made out – Court Fees Act, 1870.

Himachal Pradesh Tenancy and Land Reforms Act, 1972:s.118 – Transfer of land to non-agriculturist – U/s.118 of 1972 Act,

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450SUPREME COURT REPORTS

Aonly an agriculturist, can purchase land in Himachal Pradesh,which would mean a landowner who personally cultivates his landin Himachal Pradesh – If a non-agriculturist has to purchase aland, prior permission of state government is required – The wholepurpose of s.118 of the 1972 Act is to protect agriculturists withBsmall holdings – Land in Himachal Pradesh cannot be transferredto a non-agriculturist – The purpose is to save the small agriculturalholding of poor persons and also to check the rampant conversionof agricultural land for non-agricultural purposes.

Dismissing the appeals, the CourtC

HELD: 1. An appeal has to be filed within the stipulatedperiod, prescribed under the law. Belated appeals can only becondoned, when sufficient reason is shown before the court forthe delay. The appellant who seeks condonation of delay thereforeDmust explain the delay of each day. It is true that the courts shouldnot be pedantic in their approach while condoning the delay, andexplanation of each day’s delay should not be taken literally, butthe fact remains that there must be a reasonable explanation forthe delay. In the present case, this delay has not been explainedEto the satisfaction of the court. The only reason assigned by theappellant for the delay of 254 days in filing the First Appeal wasthat he was not having sufficient funds to pay the court fee! Thiswas not found to be a sufficient reason for the condonation ofdelay as the appellant was an affluent businessman and a hotelier.FIn any case, even it is presumed for the sake of argument thatthe appellant was short of funds, at the relevant point of time andwas not able to pay court fee, nothing barred him from filing theappeal as there is provision under the law for filing a defectiveappeal, i.e., an appeal which is deficient as far as court fee isGconcerned, provided the court fee is paid within the time givenby the Court. In terms of Section 4, an appeal cannot be filedbefore a High Court without court fee, if the same is prescribed.But this provision has to be read along with Section 149 of CPC.[Para 5][453-F-H; 454-A-E]H

2. In present case, appellant is capable of purchasing thecourt fee. He did pay the court fee ultimately, though belatedly.But then, under the facts and circumstances of the case, thereasons assigned for the delay in filing the appeal cannot be avalid reason for condonation of the delay, since the appellant couldhave filed the appeal deficient in court fee under the provisionsof law. Therefore, the High Court was right in dismissing Section5 application of the appellant as insufficient funds could not havebeen a sufficient ground for condonation of delay, under the factsand circumstance of the case. It would have been entirely adifferent matter had the appellant filed an appeal in terms ofSection 149 CPC and thereafter removed the defects by payingdeficit court fees. This has evidently not been done. [Para 9][457-D-G]

3. The whole purpose of Section 118 of the 1972 Act is toprotect agriculturists with small holdings. Land in HimachalPradesh cannot be transferred to a non-agriculturist, and this iswith a purpose. The purpose is to save the small agriculturalholding of poor persons and also to check the rampant conversionof agricultural land for non-agricultural purposes. A person whois not an agriculturist can only purchase land in Himachal Pradeshwith the permission of the State Government. The Governmentis expected to examine from a case to case basis whether suchpermission can be given or not. In the present case, it thought itbest, not to grant such a permission. However, the purpose ofthe transfer remains the same, which is a non-agricultural activity.By merely assigning rights to an agriculturist, who will be usingthe land for a purpose other than agriculture, would defeat thepurpose of this Act. [Para 17][461-F-H; 462-A]

Mannan Lal v. Mst. Chhotaka Bibi & Ors. (1970) 1SCC 769 : [1971] 1 SCR 253; P.K. Palanisamy v. N.Arumugham & Anr. (2009) 9 SCC 173 : [2009] 11SCR 342; Ganapathy Hegde v. Krishnakudva & Anr.(2005) 13 SCC 539; K.C. Skaria v. Govt. of State ofKerala & Anr. (2006) 2 SCC 285 : [2006] 1 SCR 274; ABC

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AMahant Bikram Dass Chela v. Financial Commissioner,Revenue, Punjab,Chandigarh And Others (1977) 4 SCC69 : [1978] 1 SCR 262; Basawaraj and Another v.Special Land Acquisition Officer (2013) 14 SCC 81 :[2013] 8 SCR 227; Ashok Madan and Another versusBState of H.P. and Other 2011 SCC OnLine HP 3885 –relied on.

S. Wajid Ali v. Mt. Isar Bano Urf Isar Fatima & Ors.AIR 1951 All 64 – referred to.

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CIVIL APPELLATE JURISDICTION : Civil Appeal No.716 Of2023.

From the Judgment and Order dated 17.12.2018 of the High CourtFof Himachal Pradesh at Shimla in CMPM No.76 of 2018.

With

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SLP (C) No.15848 Of 2019.

Bhagabati Prasad Padhy, Rahul Sharma, Advs. for the Appellant.

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Ajay Marwah, Adhitya Srinivasan, Karan Thakur, Tapan Masta,Ayush Gupta, Ms. Achintya Dvivedi, Rameshwar Prasad Goyal, Advs.for the Respondents.

The Judgment of the Court was delivered by SUDHANSHU DHULIA, J.

Leave granted.

2. Both these Appeals before this Court are by the plaintiff whohad filed a suit for specific performance, which was dismissed and laterhis First Appeal before the High Court was dismissed on the grounds ofdelay. We may state here that the Plaintiff/Appellant was not a party tothe contract of which a specific performance was sought. The contractwas executed between the defendant and a company called M/sHimalayan Ski Village Pvt. Ltd. which was for sale of an ‘agriculturalland’ in Himachal Pradesh. There were two plots of land for which twodifferent “agreements of sale” were executed, and hence two civil suitswere filed.

3. In both the above appeals, there is a common challenge againstorder dated 17.12.2018 passed by the Single Judge of the High Court ofHimachal Pradesh in CMP (M) No.75 of 2018 & CMP (M) No.76 of2018. The impugned order dismisses the delay condonation applicationsfiled under Section 5 of the Limitation Act, 1963, declining to condone adelay of 254 days, because the reasons assigned for the condonationwere not sufficient reasons for condonation of the delay. The Appellantherein had earlier filed two suits (bearing nos. 28/2012 & 29/2012), forspecific performance which were dismissed by the District Judge, Kulluvide order dated 30.12.2016.

4. According to the Appellant the delay ought to have beencondoned and his appeal should have been heard on its merits.

5. What we have here is a pure civil matter. An appeal has to befiled within the stipulated period, prescribed under the law. Belatedappeals can only be condoned, when sufficient reason is shown beforethe court for the delay. The appellant who seeks condonation of delaytherefore must explain the delay of each day. It is true that the courtsshould not be pedantic in their approach while condoning the delay, andexplanation of each day’s delay should not be taken literally, but the factremains that there must be a reasonable explanation for the delay. In thepresent case, this delay has not been explained to the satisfaction of thecourt. The only reason assigned by the appellant for the delay of 254days in filing the First Appeal was that he was not having sufficientfunds to pay the court fee! This was not found to be a sufficient reason A

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Afor the condonation of delay as the appellant was an affluent businessmanand a hotelier. In any case, even it is presumed for the sake of argumentthat the appellant was short of funds, at the relevant point of time andwas not able to pay court fee, nothing barred him from filing the appealas there is provision under the law for filing a defective appeal, i.e., anappeal which is deficient as far as court fee is concerned, provided theBcourt fee is paid within the time given by the Court. We would refer toSection 149 of Civil Procedure Code, 1908 which reads as under :- “Section 149: Power to make up deficiency of Court Fees.-Where the whole or any part of any fee prescribed for anydocument by the law for the time being in force relating to courtCfees has not been paid, the Court may, in its discretion, at anystage, allow the person, by whom such fee is payable, to pay thewhole or part, as the case may be, of such court-fee; and uponsuch payment the document, in respect of which such fee ispayable, shall have the same force and effect as if such fee hadDbeen paid in the first instance.”

It also needs to be emphasized that this Court as well as variousHigh Courts, have held that Section 149 CPC acts as an exception, oreven a proviso to Section 4 of Court Fees Act 1870[1]. In terms of Section4, an appeal cannot be filed before a High Court without court fee, if thesame is prescribed. But this provision has to be read along with SectionE149 of CPC which we have referred above. A short background to theincorporation of Section 149 in CPC would explain this aspect.

1Section 4.- Fees on documents filed, etc., in High Courts in their ExtraordinaryJurisdiction.—No document of any of the kinds specified in the First or SecondSchedule to this Act annexed, as chargeable with fees, shall be filed, exhibitedor recorded in, or shall be received or furnished by, any of the said High CourtsFin any case coming before such Court in the exercise of its extraordinary originalcivil jurisdiction; or in the exercise of its extraordinary original criminaljurisdiction; In their appellate jurisdiction.—or in the exercise of its jurisdictionas regards appeals from the 1[judgments (other than judgments passed in theexercise of the ordinary original civil jurisdiction of the Court) or one] or moreJudges of the said Court, or of a Division Court;—or in the exercise of itsjurisdiction as regards appeals from the 2[judgments (other than judgmentsGpassed in the exercise of the ordinary original civil jurisdiction of the Court) orone] or more Judges of the said Court, or of a Division Court;” or in the exerciseof its jurisdiction as regards appeals from the Courts subject to itssuperintendence; as Courts of reference and revision.—or in the exercise of itsjurisdiction as a Court of reference or revision; unless in respect of suchdocument there be paid a fee of an amount not less than that indicated by eitherHof the said Schedules as the proper fee for such document.

6. The provision as given under Section 4 of the Court Fees Actwas felt to be extremely rigorous at times and for this reason in the oldCode of Civil Procedure i.e. of 1882, an amendment was inserted in theyear 1892 which was Section 522-A which reads as under:- “If a memorandum of appeal or application for a review ofjudgment has been presented within the proper period of limitation,but is written upon paper insufficiently stamped, and theinsufficiency of the stamp was caused by a mistake on the part ofthe appellant or applicant as to the amount of the requisite stamps,the memorandum of appeal or application shall have the sameeffect, and be as valid as if it had been properly stamped:

Provided that such appeal or application shall be rejected unlessthe appellant or applicant supplies the requisite stamp within areasonable time after the discovery of the mistake to be fixed bythe court.”

7. The above provision was later enacted, albeit in a differentlyworded form in the Code of Civil Procedure of 1908, which is presentSection 149. In Mannan Lal v. Mst. Chhotaka Bibi & Ors.[2]thisCourt while dealing with Section 149 of CPC and Section 4 of the CourtFees Act, referred to the history of amendment, as we have stated above,and had this to say in its para 12 and 13 of the judgment:- “12. The above section therefore mitigates the rigour of Section4 of the Court Fees Act and it is for the court in its discretion toallow a person who has filed a memorandum of appeal withdeficient court fee to make good the deficiency and the makinggood of such deficiency cures the defect in the memorandum notfrom the time when it is made but from the time when it was firstpresented in court.

13. In our view in considering the question as to the maintainabilityof an appeal when the court fee paid was insufficient to start withbut the deficiency is made good later on, the provisions of theCourt Fees Act and the Code of Civil Procedure have to be readtogether to form a harmonious whole and no effort should bemade to give precedence to provisions in one over those of theother unless the express words of a statute clearly override thoseof the other.”

2 (1970) 1 SCC 769

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A8. In Mannan Lal (supra), this aspect was dealt in rather detail,where the Court referred to several decisions of different High Courtson interpretation of Section 149 CPC and Section 4 of Court Fees Act.It particularly referred to the decision of the Allahabad High Court whichis S. Wajid Ali v. Mt. Isar Bano Urf Isar Fatima & Ors.[3] wherein itwas held that a court has to exercise its discretion for allowing a deficiencyBof court fees to be made good but once it was done, a document was tobe deemed to have been presented and received on the date when itwas originally filed, and not on the date when the defects were cured.Therefore this Court in Mannan Lal (supra) further stated as under :- “21. The words used in that judgment are no doubt of wide import.CBut however that may be in the case before us there can be nodifficulty in holding that an appeal was presented in terms of Order41 Rule 1 of the Code inasmuch as all that this provision of lawrequires for an appeal to be preferred is the presentation in theform of a memorandum as therein prescribed. If the court feesDpaid thereon be insufficient it does not cease to be a memorandum of appeal although the court may reject it. If the deficiency in thefees is made good in terms of an order of the court, it must beheld that though the curing of the defect takes place on the dateof the making good of the deficiency, the defect must be treatedas remedied from the date of its original institution.

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22. In view of the above reasons, we find ourselves unable toconcur in the judgment of the High Court. In the main judgmentunder appeal, the reasoning appears to be that the memorandumof appeal had no effect before the making good of the deficiencyand as the same took place after 12th November 1962 the appealFwas not saved by Section 3(2) of the U.P. Act. The learned ChiefJustice of the Allahabad High Court expressed the opinion that amemorandum of appeal barred by time stood on a footing differentfrom the one in which there was deficiency in the court fee paid.According to him under Section 3 of the Limitation Act it is anGappeal that is dismissed and not a memorandum of appeal. Whentherefore Section 4 of the Court Fees Act deals with amemorandum of appeal the consideration of the laws of limitationbears no analogy to a deficiency in court-fees. With due respectwe are not impressed by the above reasoning. As already noted, although there is no definition of the word “appeal” in the Code ofCivil Procedure, it can only be instituted by filing a memorandumof appeal. The filing of a memorandum of appeal therefore bringsan appeal into existence; if the memorandum is deficient in court-fee, it may be rejected and if rejected, the appeal comes to anend. But if it is not rejected and time is given to the appellant tomake up the deficiency and this opportunity is availed of, Section149 of the Code expressly provides that the document is to havevalidity with retrospective effect as if the deficiency had beenmade good in the first instance. By reason of the deemingprovision in Section 149 the memorandum of appeal is to have fullforce and effect and the appeal has to be treated as one pendingfrom the date when it was before the Stamp Reporter and thedeficiency noted therein.”

This position has been reiterated by this Court in several of itslater decisions such as P.K. Palanisamy v. N. Arumugham & Anr.[4],Ganapathy Hegde v. Krishnakudva & Anr.[5]and K.C. Skaria v.Govt. of State of Kerala & Anr.[6]

9. We do not have a case at hand where the appellant is notcapable of purchasing the court fee. He did pay the court fee ultimately,though belatedly. But then, under the facts and circumstances of thecase, the reasons assigned for the delay in filing the appeal cannot be avalid reason for condonation of the delay, since the appellant could havefiled the appeal deficient in court fee under the provisions of law, referredabove. Therefore, we find that the High Court was right in dismissingSection 5 application of the appellant as insufficient funds could not havebeen a sufficient ground for condonation of delay, under the facts andcircumstance of the case. It would have been entirely a different matterhad the appellant filed an appeal in terms of Section 149 CPC andthereafter removed the defects by paying deficit court fees. This hasevidently not been done.

10. This Court, while emphasizing the scope of Section 5 of theLimitation Act, in the case of Mahant Bikram Dass Chela versusFinancial Commissioner, Revenue, Punjab, Chandigarh AndOthers[7]has held:

4 (2009) 9 SCC 1735 (2005) 13 SCC 5396 (2006) 2 SCC 2857 (1977) 4 SCC 69

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458SUPREME COURT REPORTS

A“21. Section 5 of the Limitation Act is a hard task-master andjudicial interpretation has encased it within a narrow compass.A large measure of case-law has grown around Section 5, itshighlights being that one ought not easily to take away aright which has accrued to a party by lapse of time and thattherefore a litigant who is not vigilant about his rights mustBexplain every day’s delay. These and similar considerationswhich influence the decision of Section 5 applications areout of place in cases where the appeal itself is preferred withinthe period of limitation but there is an irregularity in presentingit. Thus, in the instant case, there was no occasion to invokeCthe provisions of Section 5, Limitation Act, or of Rule 4,Chapter I of the High Court Rules. If the Division Bench wereaware that Rule 3 of Chapter 2-C is directory, it would havetreated the appeal as having been filed within the period oflimitation, rendering it inapposite to consider whether thedelay caused in filing the appeal could be condoned.”D

This Court in the case of Basawaraj and Another versus SpecialLand Acquisition Officer[8]while rejecting an application for condonationof delay for lack of sufficient cause has concluded in Paragraph 15 asfollows:

E“15. The law on the issue can be summarised to the effectthat where a case has been presented in the court beyondlimitation, the applicant has to explain the court as to whatwas the “sufficient cause” which means an adequate andenough reason which prevented him to approach the courtwithin limitation. In case a party is found to be negligent, orFfor want of bona fide on his part in the facts and circumstancesof the case, or found to have not acted diligently or remainedinactive, there cannot be a justified ground to condone thedelay. No court could be justified in condoning such aninordinate delay by imposing any condition whatsoever. TheGapplication is to be decided only within the parameters laiddown by this Court in regard to the condonation of delay. Incase there was no sufficient cause to prevent a litigant toapproach the court on time condoning the delay without anyjustification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions andit tantamounts to showing utter disregard to the legislature.”

Therefore, we are of the considered opinion that the High Courtdid not commit any mistake in dismissing the delay condonation applicationof the present appellant.

11. This apart, even on merits, we do not find it a case which callsfor our interference. The facts of the case are that one, M/s. HimalayanSki Village Pvt. Ltd. had entered into an ‘Agreement for Sale’ with anagriculturist/landowner of Himachal Pradesh, for sale of his agriculturalland. Now the admitted position in the State of Himachal Pradesh is thatunder Section 118 of the Himachal Pradesh Tenancy and Land ReformsAct, 1972 (for short ‘1972 Act’), only an agriculturist, which is definedunder Section 2(2) of the 1972 Act, can purchase land in HimachalPradesh, which would mean a landowner who personally cultivates hisland in Himachal Pradesh. If a non-agriculturist has to purchase a land,it can only be done with the prior permission of the State Governmentunder Section 118 of the Act. M/s. Himalayan Ski Village was a privatecompany, which was admittedly not an ‘agriculturist’ and therefore wasnot capable under the law to purchase the land in Himachal Pradesh andtherefore it was a condition of the agreement to sale that the defendantwould secure the necessary approval from the government within astipulated period of time. The admitted position is that this approval wasnot given to the defendant by the State Government and then the defendantassigned his right to the plaintiff who thereafter filed the suit for specificperformance.

Section 118 of the Himachal Pradesh Tenancy and Land ReformsAct, 1972 reads as under:

“1[118. Transfer of Land to non-agriculturist barred: - (1)Notwithstanding anything to the contrary contained in anylaw, contract, agreement, custom or usage for the time beinginforce but save as otherwise provided in this Chapter, notransfer of land (including transfer by a decree of a civilcourt or for recovery of arrears of land revenue) by way ofsale deed, gift, will, exchange, lease, mortgage withpossession, creation of a tenancy or in any other manner shallbe valid in favour of a person, who is not an agriculturist.]2[Explanation. For the purpose of this sub-section theexpression “Transfer of land” shall not include.

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Ai.Transfer by way of inheritance;

ii.Transfer by way of gift made or will executed, in favourof any or all legal heirs of the donor or the testator, asthe case may be;

iii.Transfer by way of lease of land or building in aBmunicipal area; but shall include

a) a benami transaction in which land is transferred to anagriculturist for a consideration paid or provided by a non-agriculturist; and C

b) an authorization made by the owner by way of special orgeneral power of attorney or by an agreement with theintention to put a non-agriculturist in possession of the landand allow him to deal with the land in the like manner as if heis a real owner of that land.]

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(2) Nothing in sub-section (1) shall be deemed to prohibit thetransfer of land by any person in favour or, (a)….

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(h) a non agriculturist with the permission of the StateGovernment for the purposes that may be prescribed.”

12. The admitted position is that M/s Himalayan Ski Village Pvt.GLtd. failed to get the permission from the State Government under Section118 of the 1972 Act.

13. What was done instead was, that when the purchaser failedto get the requisite permission from the State Government under Section118 of the 1972 Act, it assigned its rights to the Plaintiff (i.e., the present H

AJAY DABRA v. PYARE RAM & ORS.[SUDHANSHU DHULIA, J.]

Appellant before this Court), and the Plaintiff in turn filed a suit forSpecific Performance against the defendants i.e., Surender Singh-Defendant No. 1 who is Respondent No. 1 herein. It was only later thathe also impleaded M/s Himalayan Ski Village Pvt. Ltd.- Defendant No.2 who is Respondent No. 2 herein.

14. The Trial Court dismissed the suits of the plaintiff primarily ongrounds that getting permission from the State Government was anessential condition, which had not been fulfilled by him as per Section118 of the 1972 Act and under the facts and circumstances of the case,the assignment in terms of the Plaintiff was not proper and valid.

15. All other conditions which have been stipulated in theAgreement to Sell depended on this primary condition i.e., permissionfrom the State Government, under Section 118 of the 1972 Act. There isno specific clause in the “Agreement to Sell”, which says that in casethe purchaser fails to obtain required permission from the StateGovernment, it could assign its rights to an agriculturist of HimachalPradesh and the seller therefore would not have any objection inexecuting the Sale deed in favour of such an assignee.

16. In the present case the assignment is not valid as there wasno prior consent or approval of the seller before the assignment. In theabsence of such a condition and in lieu of the fact that before assignmentof its rights to the plaintiff/Appellant herein no permission of the sellerwas obtained, there was no question of granting a decree of SpecificPerformance in favour of the plaintiff. Consequently, this is not a casewhich calls for our interference.

17. We may here add that the whole purpose of Section 118 ofthe 1972 Act is to protect agriculturists with small holdings. Land inHimachal Pradesh cannot be transferred to a non-agriculturist, and thisis with a purpose. The purpose is to save the small agricultural holding ofpoor persons and also to check the rampant conversion of agriculturalland for non-agricultural purposes. A person who is not an agriculturistcan only purchase land in Himachal Pradesh with the permission of theState Government. The Government is expected to examine from a caseto case basis whether such permission can be given or not. In the presentcase, it thought it best, not to grant such a permission. However, thepurpose of the transfer remains the same, which is a non-agriculturalactivity. By merely assigning rights to an agriculturist, who will be using A

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Athe land for a purpose other than agriculture, would defeat the purposeof this Act. In the case of Ashok Madan and Another versus State ofH.P. and Other[9]the Himachal Pradesh High Court had laid down thefollowing important observation with respect to Section 118 of the 1972Act:

B“12. The law is, therefore, clear that merely the nomenclatureor the title of the document sill not determine what are therights created by the document. The intention of the partiesmust be gathered on a combined reading of all the documentsand the behaviour of the parties in the manner in which theytreated the document. Section 118 was introduced with a viewCto restrict the transfer of land in favour of non-agriculturistexcept to specified persons as contained in the Section itself.The purpose behind it was that the economically advantageousclass does not take undue advantage of the small agriculturistsby purchasing their small holdings. The provision wasDintroduced as rich persons who were not agriculturists werepurchasing agricultural land in Himachal Pradesh at highprice exploiting the local Himachali people. However, thesection itself provided that in special cases permission canbe granted for transfer of land to non-agriculturist. Theconstitutional validity of this Section was upheld in Smt.ESudarshana Devi v. Union of India, ILR 1978 HP 355.”

19. Under the facts and circumstances of the case we do not findany scope for interference in the matter. Consequently, both the appealsstand dismissed.