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TMI Blog2023 (1) TMI 1279X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay. 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. 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 . 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. 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 part of the appellant or applicant as to the amount of the requisite stamps, the memoran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 prescribed. 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 appeal 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 (1977) 4 SCC 69 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be done with the prior permission of the State Government under Section 118 of the 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 nonagriculturist 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, under Section 118 of the 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 nonagriculturist, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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