IMPORTANT POINT
Appeal – Limitation – Courts should not be pedantic in their approach while condoning delay, and explanation of each day’s delay should not be taken literally, but there must be reasonable explanation for delay.

JUDGMENT :

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 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.

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 :-

“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 1870¹[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 extra