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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO…………………OF 202 3

ARISING OUT OF SLP (C) No.15793 OF 2019

AJAY DABRA Appellant(s)

Versus

PYARE RAM & ORS. …Respondent(s)

WITH

CIVIL APPEAL NO…………………OF 2 023

ARISING OUT OF SLP (C) No.15848 OF 2019

AJAY DABRA Appellant(s)

Versus

SUNDER SINGH & ANR. …Respondent(s)

J U D G M E N T

SUDHANSHU DHULIA, J.

Leave granted.

2. Both these Appeals before this Court are by the plaintiff who

had filed a suit for specific performance, which was dismissed

and later his First Appeal before the High Court was dismissed

on the grounds of delay. We may state here that the

Plaintiff/Appellant was not a party to the contract of which a

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specific performance was sought. The contract was executed

between the defendant and a company called M/s Himalayan Ski

Village Pvt. Ltd. which was for sale of an ‘agricultural land’ in

Himachal Pradesh. There were two plots of land for which two

different “agreements of sale” were executed, and hence two civil

suits were filed.

3. In both the above appeals, there is a common challenge

against order dated 17.12.2018 passed by the Single Judge of the

High Court of Himachal Pradesh in CMP (M) No.75 of 2018 &

CMP (M) No.76 of 2018. The impugned order dismisses the delay

condonation applications filed under Section 5 of the Limitation

Act, 1963, declining to condone a delay of 254 days, because the

reasons assigned for the condonation were not sufficient reasons

for condonation of the delay. The Appellant herein had earlier

filed two suits (bearing nos. 28/2012 & 29/2012), for specific

performance which were dismissed by the District Judge, Kullu

vide order dated 30.12.2016.

4. According to the Appellant the delay ought to have been

condoned and his appeal should have been heard on its merits.

5. What we have here is a pure civil matter. An appeal has to

be filed within the stipulated period, prescribed under the law.

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Belated appeals can only be condoned, when sufficient reason is

shown before the court for the delay. The appellant who seeks

condonation of delay therefore must explain the delay of each

day. It is true that the courts should not be pedantic in their

approach while condoning the delay, and explanation of each

day’s delay should not be taken literally, but the fact remains

that there must be a reasonable explanation for the delay. In the

present case, this delay has not been explained to the satisfaction

of the court. The only reason assigned by the appellant for the

delay of 254 days in filing the First Appeal was that he was not

having sufficient funds to pay the court fee! This was not found

to be a sufficient reason for the condonation of delay as the

appellant was an affluent businessman and a hotelier. In any

case, even it is presumed for the sake of argument that the

appellant was short of funds, at the relevant point of time and

was not able to pay court fee, nothing barred him from filing the

appeal as there is provision under the law for filing a defective

appeal, i.e., an appeal which is deficient as far as court fee is

concerned, provided the court fee is paid within the time given by

the Court. We would refer to Section 149 of Civil Procedure Code,

1908 which reads as under :-

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“Section 149: Power to make up

deficiency of Court Fees.- Where the whole

or any part of any fee prescribed for any

document by the law for the time being in

force relating to court fees has not been paid,

the Court may, in its discretion, at any stage,

allow the person, by whom such fee is

payable, to pay the whole or part, as the case

may be, of such court-fee; and upon such

payment the document, in respect of which

such fee is payable, shall have the same

force and effect as if such fee had been paid

in the first instance.”

It also needs to be emphasized that this Court as well as various

High Courts, have held that Section 149 CPC acts as an

exception, or even a proviso to Section 4 of Court Fees Act 1870

1.

In terms of Section 4, an appeal cannot be filed before a High

Court without court fee, if the same is prescribed. But this

provision has to be read along with Section 149 of CPC which we

have referred above. A short background to the incorporation of

Section 149 in CPC would explain this aspect.

1

Section 4.- Fees on documents filed, etc., in High Courts in their Extraordinary Jurisdiction.—No

document of any of the kinds specified in the First or Second Schedule to this Act annexed, as

chargeable with fees, shall be filed, exhibited or recorded in, or shall be received or furnished by,

any of the said High Courts in any case coming before such Court in the exercise of its

extraordinary original civil jurisdiction; or in the exercise of its extraordinary original criminal

jurisdiction; In their appellate jurisdiction.—or in the exercise of its jurisdiction as regards appeals

from the 1[judgments (other than judgments passed in the exercise of the ordinary original civil

jurisdiction of the Court) or one] or more Judges of the said Court, or of a Division Court;—or in

the exercise of its jurisdiction as regards appeals from the 2[judgments (other than judgments

passed in the exercise of the ordinary original civil jurisdiction of the Court) or one] or more Judges

of the said Court, or of a Division Court;" or in the exercise of its jurisdiction as regards appeals

from the Courts subject to its superintendence; as Courts of reference and revision.—or in the

exercise of its jurisdiction as a Court of reference or revision; unless in respect of such document

there be paid a fee of an amount not less than that indicated by either of the said Schedules as the

proper fee for such document.

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6. The provision as given under Section 4 of the Court Fees Act

was felt to be extremely rigorous at times and for this reason in

the old Code of Civil Procedure i.e. of 1882, an amendment was

inserted in the year 1892 which was Section 522-A which reads

as under:-

“If a memorandum of appeal or application

for a review of judgment has been presented

within the proper period of limitation, but is

written upon paper insufficiently stamped,

and the insufficiency of the stamp was

caused by a mistake on the pa rt of the

appellant or applicant as to the amount of

the requisite stamps, the memorandum of

appeal or application shall have the same

effect, and be as valid as if it had been

properly stamped:

Provided that such appeal or application

shall be rejected unless the appellant or

applicant supplies the requisite stamp

within a reasonable time after the discovery

of the mistake to be fixed by the court.”

7. The above provision was later enacted, albeit in a differently

worded form in the Code of Civil Procedure of 1908, which is

present Section 149. In Mannan Lal v. Mst. Chhotaka Bibi &

Ors.

2

this Court while dealing with Section 149 of CPC and

Section 4 of the Court Fees 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:-

2

(1970) 1 SCC 769

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“12. The above section therefore mitigates

the rigour of Section 4 of the Court Fees Act

and it is for the court in its discretion to

allow a person who ha s filed a

memorandum of appeal with deficient court

fee to make good the deficiency and the

making good of such deficiency cures the

defect in the memorandum not from the

time when it is made but from the time

when it was first presented in court.

13. In our view in considering the question

as to the maintainability of an appeal when

the court fee paid was insufficient to start

with but the deficiency is made good later

on, the provisions of the Court Fees Act and

the Code of Civil Procedure have to be read

together to form a harmonious whole and

no effort should be made to give precedence

to provisions in one over those of the other

unless the express words of a statute clearly

override those of the other.”

8. In Mannan Lal (supra), this aspect was dealt in rather

detail, where the Court referred to several decisions of different

High Courts on interpretation of Section 149 CPC and Section 4

of Court Fees Act. It particularly referred to the decision of the

Allahabad High Court which is S. Wajid Ali v. Mt. Isar Bano Urf

Isar Fatima & Ors.

3

wherein it was held that a court has to

exercise its discretion for allowing a deficiency of court fees to be

made good but once it was done, a document was to be deemed

to have been presented and received on the date when it was

originally filed, and not on the date when the defects were cured.

3

AIR 1951 All 64

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Therefore this Court in Mannan Lal (supra) further stated as

under :-

“21. The words used in that judgment are no

doubt of wide import. But however that may

be in the case before us there can be no

difficulty in holding that an appeal was

presented in terms of Order 41 Rule 1 of the

Code inasmuch as all that this provision of

law requires for an appeal to be preferred is

the presentation in the form of a

memorandum as therein presc ribed. If the

court fees paid thereon be insufficient it does

not cease to be a memorandum of appeal

although the court may reject it. If the

deficiency in the fees is made good in terms of

an order of the court, it must be held that

though the curing of the defect takes place on

the date of the making good of the deficiency,

the defect must be treated as remedied from

the date of its original institution.

22. In view of the above reasons, we find

ourselves unable to concur in the judgment of

the High Court. In the main judgment under

appeal, the reasoning appears to be that the

memorandum of app eal had no effect before

the making good of the deficiency and as the

same took place after 12th November 1962

the appeal was not saved by Section 3(2) of

the U.P. Act. The learned Chief Justice of the

Allahabad High Court expressed the opinion

that a memorandum of appeal barred by time

stood on a footing different from the one in

which there was deficiency in the court fee

paid. According to him under Section 3 of the

Limitation Act it is an appeal that is dismissed

and not a memorandum of appeal. When

therefore Section 4 of the Court Fees Act deals

with a memorandum of appeal the

consideration of the laws of limitation bears

no analogy to a deficiency in court-fees. With

due respect we are not impressed by the

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above reasoning. As already noted, although

there is no definition of the word “appeal” in

the Code of Civil Procedure, it can only be

instituted by filing a memorandum of appeal.

The filing of a memorandum of a ppeal

therefore brings an appeal into existence; if

the memorandum is deficient in court-fee, it

may be rejected and if rejected, the appeal

comes to an end. But if it is not rejected and

time is given to the appellant to make up the

deficiency and this opportunity is availed of,

Section 149 of the Code expressly provides

that the document is to have validity with

retrospective effect as if the deficiency had

been made good in the first instance. By

reason of the deeming provision in Section

149 the memorandum of appeal is to have full

force and effect and the appeal has to be

treated as one pending from the date when it

was before the Stamp Reporter and the

deficiency noted therein.”

This position has been reiterated by this Court in several of its

later 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 not

capable of purchasing the court fee. He did pay the court fee

ultimately, though belatedly. But then, under the facts and

circumstances of the case, the reasons assigned for the delay in

filing the appeal cannot be a valid reason for condonation of the

4

(2009) 9 SCC 173

5

(2005) 13 SCC 539

6

(2006) 2 SCC 285

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delay, since the appellant could have filed the appeal deficient in

court fee under the provisions of law, referred above. Therefore,

we find that the High Court was right in dismissing Section 5

application of the appellant as insufficient funds could not have

been a sufficient ground for condonation of delay, under the facts

and circumstance of the case. It would have been entirely a

different matter had the appellant filed an appeal in terms of

Section 149 CPC and thereafter removed the defects by paying

deficit court fees. This has evidently not been done.

10. This Court, while emphasizing the scope of Section 5 of the

Limitation Act, in the case of Mahant Bikram Dass Chela

versus Financial Commissioner , Revenue, Punjab ,

Chandigarh And Others

7 has held:

“21. Section 5 of the Limitation Act is

a hard task-master and judicial

interpretation has encased it within a

narrow compass. A large measure of

case-law has grown around Section 5,

its highlights being that one ought not

easily to take away a right which has

accrued to a party by lapse of time and

that therefore a litigant who is not

vigilant about his rights must explain

every day’s delay. These and similar

considerations which influence the

decision of Section 5 applications are

out of place in cases where the appeal

itself is preferred within the period of

limitation but there is an irregularity in

7

(1977) 4 SCC 69

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presenting it. Thus, in the instant case,

there was no occasion to invoke the

provisions of Section 5, Limitation Act,

or of Rule 4, Chapter I of the High Court

Rules. If the Division Bench were aware

that Rule 3 of Chapter 2-C is directory,

it would have treated the appeal as

having been filed within the period of

limitation, rendering it inapposite to

consider whether the delay caused in

filing the appeal could be condoned.”

This Court in the case of Basawaraj and Another versus

Special Land Acquisition Officer

8 while rejecting an

application for condonation of delay for lack of sufficient cause

has concluded in Paragraph 15 as follows:

“15. The law on the issue can be

summarised to the effect that where a

case has been presented in the court

beyond limitation, the applicant has to

explain the court as to what was the

“sufficient cause” which means an

adequate and enough reason which

prevented him to approach the court

within limitation. In case a party is

found to be negligent, or for want of

bona fide on his part in the facts and

circumstances of the case, or found to

have not acted diligently or remained

inactive, there cannot be a justified

ground to condone the delay. No court

could be justified in condoning such an

inordinate delay by imposing any

condition whatsoever. The application is

to be decided only within the parameters

laid down by this Court in regard to the

8

(2013) 14 SCC 81

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condonation of delay. In case there was

no sufficient cause to prevent a litigant to

approach the court on time condoning

the delay without any justification,

putting any condition whatsoever,

amounts to passing an order in violation

of the statutory provisions and it

tantamounts to showing utter disregard

to the legislature.”

Therefore, we are of the considered opinion that the

High Court did not commit any mistake in dismissing the

delay condonation application of the present appellant.

11. This apart, even on merits, we do not find it a case which

calls for our interference. The facts of the case are that one, M/s.

Himalayan Ski Village Pvt. Ltd. had entered into an ‘Agreement

for Sale’ with an agriculturist/landowner of Himachal Pradesh,

for sale of his agricultural land. Now the admitted position in the

State of Himachal Pradesh is that under Section 118 of the

Himachal Pradesh Tenancy and Land Reforms Act, 1972 (for

short ‘1972 Act’), only an agriculturist, which is defined under

Section 2(2) of the 1972 Act, can purchase land in Himachal

Pradesh, which would mean a landowner who personally

cultivates his land in Himachal Pradesh. If a non-agriculturist

has to purchase a land, it can only be done with the prior

permission of the State Government under Section 118 of the

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Act. M/s. Himalayan Ski Village was a private company, which

was admittedly not an ‘agriculturist’ and therefore was not

capable under the law to purchase the land in Himachal Pradesh

and therefore it was a condition of the agreement to sale that the

defendant would secure the necessary approval from the

government within a stipulated period of time. The admitted

position is that this approval was not given to the defendant by

the State Government and then the defendant assigned his right

to the plaintiff who thereafter filed the suit for specific

performance.

Section 118 of the Himachal Pradesh Tenancy and Land

Reforms Act, 1972 reads as under:

“1[118. Transfer of Land to non-

agriculturist barred: - (1)

Notwithstanding anything to the

contrary contained in any law, contract,

agreement, custom or usage for the time

being inforce but save as otherwise

provided in this Chapter, no transfer of

land (including transfer by a decree of a

civil court or for recovery of arrears of

land revenue) by way of sale deed, gift,

will, exchange, lease, mortgage with

possession, creation of a tenancy or in

any other manner shall be valid in

favour of a person, who is not an

agriculturist.]

2[Explanation. For the purpose of this

sub-section the expression “Transfer of

land” shall not include.

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i. Transfer by way of inheritance;

ii. Transfer by way of gift made or will

executed, in favour of any or all legal

heirs of the donor or the testator, as

the case may be;

iii. Transfer by way of lease of land or

building in a municipal area;

but shall include

a) a benami transaction in which land is

transferred to an agriculturist for a

consideration paid or provided by a non-

agriculturist; and

b) an authorization made by the owner

by way of special or general power of

attorney or by an agreement with the

intention to put a non-agriculturist in

possession of the land and allow him to

deal with the land in the like manner as

if he is a real owner of that land.]

(2) Nothing in sub-section (1) shall be

deemed to prohibit the transfer of land

by any person in favour or,

(a)….

(b)….

(c)….

(d)….

(e)….

(f)….

(g)….

(h) a non agriculturist with the

permission of the State Government for

the purposes that may be prescribed.”

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12. The admitted position is that M/s Himalayan Ski Village

Pvt. Ltd. failed to get the permission from the State Government

under Section 118 of the 1972 Act.

13. What was done instead was, that when the purchaser failed

to get the requisite permission from the State Government under

Section 118 of the 1972 Act, it assigned its rights to the Plaintiff

(i.e., the present Appellant before this Court), and the Plaintiff in

turn filed a suit for Specific Performance against the defendants

i.e., Surender Singh-Defendant No. 1 who is Respondent No. 1

herein. It was only later that he 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

on grounds that getting permission from the State Government

was an essential condition, which had not been fulfilled by him

as per Section 118 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 the

Agreement to Sell depended on this primary condition i.e.,

permission from the State Government, under Section 118 of the

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1972 Act. There is no specific clause in the “Agreement to Sell”,

which says that in case the purchaser fails to obtain required

permission from the State Government, it could assign its rights

to an agriculturist of Himachal Pradesh and the seller therefore

would not have any objection in executing the Sale deed in favour

of such an assignee.

16. In the present case the assignment is not valid as there was

no prior consent or approval of the seller before the assignment.

In the absence of such a condition and in lieu of the fact that

before assignment of its rights to the plaintiff/Appellant herein

no permission of the seller was obtained, there was no question

of granting a decree of Specific Performance in favour of the

plaintiff. Consequently, this is not a case which calls for our

interference.

17. We may here add that the whole purpose of Section 118 of

the 1972 Act is to protect agriculturists with small holdings.

Land in Himachal Pradesh cannot be transferred to a non-

agriculturist, and this is with a purpose. The purpose is to save

the small agricultural holding of poor persons and also to check

the rampant conversion of agricultural land for non-agricultural

purposes. A person who is not an agriculturist can only

purchase land in Himachal Pradesh with the permission of the

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State Government. The Government is expected to examine from

a case to case basis whether such permission can be given or

not. In the present case, it thought it best, not to grant such a

permission. However, the purpose of the transfer remains the

same, which is a non-agricultural activity. By merely assigning

rights to an agriculturist, who will be using the land for a

purpose other than agriculture, would defeat the purpose of this

Act. In the case of Ashok Madan and Another versus State of

H.P. and Other

9 the Himachal Pradesh High Court had laid

down the following important observation with respect to Section

118 of the 1972 Act:

"12. The law is, therefore, clear that

merely the nomenclature or the title of

the document sill not determine what

are the rights created by the document.

The intention of the parties must be

gathered on a combined reading of all

the documents and the behaviour of the

parties in the manner in which they

treated the document. Section 118 was

introduced with a view to restrict the

transfer of land in favour of non-

agriculturist except to specified persons

as contained in the Section itself. The

purpose behind it was that the

economically advantageous class does

not take undue advantage of the small

agriculturists by purchasing their small

holdings. The provision was introduced

as rich persons who were not

agriculturists were p urchasing

9

2011 SCC OnLine HP 3885

Page 17 of 17

agricultural land in Himachal Pradesh

at high price exploiting the local

Himachali people. However, the section

itself provided that in special cases

permission can be granted for transfer

of land to non-agriculturist. The

constitutional validity of this Section

was upheld in Smt. Sudarshana Devi v.

Union of India, ILR 1978 HP 355.”

19. Under the facts and circumstances of the case we do not

find any scope for interference in the matter. Consequently, both

the appeals stand dismissed.

…....…...………….…………… …. J.

(Pamidighantam Sri Narasimha)

...……………………. J.

(Sudhanshu Dhulia)

New Delhi,

January 31, 2023.