2023 (1) TMI 1279 - SC - Indian Laws

Condonation of delay in filing first appeal - 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 - sufficient reasons for delay or not - Suit for specific performance - CHELD THAT - In Mannan Lal 1970 (4) TMI 157 - SUPREME COURT , 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. 1950 (9) TMI 23 - ALLAHABAD HIGH COURT 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. There are no 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 delay, since the appellant could have filed the appeal deficient in court fee under the provisions of law. Therefore, it is found 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. This is a fit case which calls for 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. 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 interference. Appeal dismissed.

Summary

Issues Involved:
1. Dismissal of the suit for specific performance.
2. Dismissal of the First Appeal by the High Court on grounds of delay.
3. Application of Section 5 of the Limitation Act, 1963.
4. Application of Section 149 of the Civil Procedure Code, 1908.
5. Validity of the assignment of rights under the Agreement for Sale.
6. Compliance with Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972.

Issue-wise Detailed Analysis:

1. Dismissal of the suit for specific performance:
The plaintiff filed a suit for specific performance of a contract executed between the defendant and M/s Himalayan Ski Village Pvt. Ltd. for the sale of agricultural land in Himachal Pradesh. The Trial Court dismissed the suits primarily because the essential condition of obtaining permission from the State Government under Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 was not fulfilled. The assignment of rights by the original purchaser to the plaintiff was deemed improper and invalid.

2. Dismissal of the First Appeal by the High Court on grounds of delay:
The High Court of Himachal Pradesh dismissed the delay condonation applications filed under Section 5 of the Limitation Act, 1963, declining to condone a delay of 254 days. The reason assigned by the appellant for the delay was insufficient funds to pay the court fee, which was not found to be a sufficient reason as the appellant was an affluent businessman and a hotelier. The appellant could have filed a defective appeal with deficient court fees and later made up the deficiency under Section 149 of the Civil Procedure Code, 1908.

3. Application of Section 5 of the Limitation Act, 1963:
The Supreme Court emphasized that an appeal must be filed within the stipulated period prescribed under the law. Belated appeals can only be condoned when sufficient reason is shown for the delay. The appellant must explain the delay of each day, and in this case, the explanation provided (lack of funds) was not satisfactory. The Court held that Section 5 of the Limitation Act is stringent and requires a reasonable explanation for the delay, which was not provided by the appellant.

4. Application of Section 149 of the Civil Procedure Code, 1908:
Section 149 allows the court to permit the payment of deficient court fees at any stage, and upon such payment, the document is deemed to have the same force as if the fee had been paid initially. The Supreme Court referred to past judgments, including Mannan Lal v. Mst. Chhotaka Bibi & Ors., which held that the defect in court fees could be remedied retrospectively. The appellant could have filed the appeal with deficient court fees and later made up the deficiency, but this was not done.

5. Validity of the assignment of rights under the Agreement for Sale:
The assignment of rights by M/s Himalayan Ski Village Pvt. Ltd. to the plaintiff was deemed invalid as there was no prior consent or approval of the seller before the assignment. The Agreement for Sale did not contain a clause allowing the purchaser to assign its rights to an agriculturist if the required permission from the State Government was not obtained. Therefore, the assignment was not proper, and the plaintiff was not entitled to a decree of specific performance.

6. Compliance with Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972:
Section 118 restricts the transfer of land to non-agriculturists, and any such transfer requires prior permission from the State Government. M/s Himalayan Ski Village Pvt. Ltd., being a non-agriculturist, failed to obtain the necessary permission. The Supreme Court highlighted the purpose of Section 118, which is to protect small agricultural holdings and prevent the conversion of agricultural land for non-agricultural purposes. The assignment of rights to the plaintiff, who intended to use the land for non-agricultural purposes, would defeat the purpose of the Act.

Conclusion:
The Supreme Court upheld the High Court's decision to dismiss the delay condonation application and found no merit in the case for interference. The appeals were dismissed, emphasizing the importance of adhering to statutory provisions and the purpose of protecting agricultural land under Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972.