Back
IN THE HIGH COURT OF DELHI
V.K.JAIN,VIKRAMAJIT SEN
ASHA SHARMA - Appellant
Versus
SANIMIYA VANIJIYA P.LTD. - Respondent
R.F.A. (OS) 35/2009 and CMs No. 5373/09 & 11767/09
Decided On : 01-09-2009
Court Fee Act - Delay in Re-filing Appeal - Section 149 of the Code of Civil Procedure - Rules of Delhi High Court - [CS(OS) 1883/2006] - [Section 149 of the Code of Civil Procedure, Court Fee Act] - The court discussed the provisions of Section 149 of the Code of Civil Procedure and Section 4 of the Court Fee Act, and the Rules of Delhi High Court regarding re-filing of appeals. The court emphasized the importance of timely filing and the consequences of non-compliance with the rules and regulations.
Fact of the Case:
The appeal was repeatedly filed with objections not removed, leading to applications for condonation of delay. The court scrutinized the reasons for delay, including issues with court fee payment, certified copy of judgment, and other procedural lapses.
Finding of the Court:
The court found no convincing or logical grounds for condonation of delay, emphasizing the need for strict compliance with rules and regulations. The court dismissed the applications for condonation of delay and subsequently dismissed the appeal as time-barred.
Issues: The main issue was the repeated delay in re-filing the appeal and the adequacy of reasons provided for the delay.
Ratio Decidendi: The court held that the rules of procedure are designed to facilitate justice and further its ends, and non-compliance with the rules cannot be condoned without strong reasons. The court emphasized the importance of timely filing and strict adherence to procedural requirements.
Final Decision: The court dismissed the applications for condonation of delay and subsequently dismissed the appeal as time-barred.
CM 5373/2009 & 11767/2009
1. This Appeal is diected against the Judgment dated 20.8.2008 in CS(OS) 1883/2006, whereby the plaint was rejected,
R.F.A. (OS) 35/2009 and CMs No. 5373/09 & 11767/09 ASHA SHARMA & ORS v SANIMIYA VANIJIYA P. LTD. & ORS.
under Order VII Rule 11(d) of Code of Civil Procedure was rejected. The Appeal was initially filed on 26.9.2008 but was returned with the following objections:
.(1)Caveat Report is to be obtained or at the time of each subsequent filing (1)
.(2)Scrutiny charges of Rs. 100/- is to be deposited. (2)
.(3)Opening sheet is to be filed and be placed just before the appeal.(4)
.(4)Court Fee is to be affixed according to valuation.(7)
.(5)It should be stated whether the annexures filed are part of trial court record.(9)
.(6)Certified copy of Judgment & decree is to be filed and stamped accordingly.(10)
.(7)Petition/applications/ annexures / order / power of attorney should be stamped.(109)
.(8)Fair typed copy of dim annexure and hand written annexure to be filed(115)
.(9)List of dates to be filed.
.(10)Application for delay in refilling be filed.
2. The appeal was re-filed on 20th October, 2008 but was returned as objections had not been removed. It was again filed on 30th October, 2008 but was returned on the same ground.
R.F.A. (OS) 35/2009 and CMs No. 5373/09 & 11767/09 ASHA SHARMA & ORS v SANIMIYA VANIJIYA P. LTD. & ORS.
Thereafter it was filed on 19th December, 2008 but was returned as objections had not been removed. It was then filed on 13th April, 2005 and was returned yet again as objections had not been removed. It was thereafter filed on 15th April, 2009 and was returned for the same reasons. Ultimately, it was filed on 16.4.2009. CM 5373/2009 has been filed for condonation of delay in re-filing the Appeal. Since no Court fee stamp was affixed on this appeal when it was filed, CM No. 11767/2009 under Section 149 Code of Civil Procedure for condonation of delay in making deficiency in the Court fee has also been filed by the Appellants.
3. Section 149 of the Code of Civil Procedure provides that where the whole or any part of any fee prescribed for any document relating to Court fee has not been paid, the Court may in its discretion, at any stage, allow payment of the whole or in part 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.
4. Section 4 of the Court Fee Act prohibits filing or receiving of any Memorandum of Appeal, chargeable with court fee in case the court fee as indicated in the relevant schedule of the Act is paid on it.
R.F.A. (OS) 35/2009 and CMs No. 5373/09 & 11767/09 ASHA SHARMA & ORS v SANIMIYA VANIJIYA P. LTD. & ORS.
5. Section149 of the Code of Civil Procedure therefore mitigates the rigours of Section 4 of Court Fee Act and if sufficient cause is shown, the court may in its discretion allow a person who has filed a Memorandum of Appeal without court fee or with deficient court fee to make up the deficiency and the making good of such deficiency cures the defect in the Memorandum, to the extent it pertains to deficiency in court fee, not from the time when it is made but from the time when it was presented in court. In Mannan Lal Vs. Chhotaka Bibi, (Dead) by LRs. B. Sharda Shankar and Ors. ________ 6&&_ _____ held that the provisions of Section 149 of Code of Civil Procedure should be read as a proviso to Section 4 of Court Fee Act which places an embargo on filing of any document of prescribed nature by the High Court unless requisite court fee is paid on it. This proposition of law was reiterated State of U.P. Vs. Rehmatullah AIR 1971 SC 1374. Similar view P.K. Palanisamy Vs. N. Aruanugham and Anr. in Civil Appeal No.4643/2009 decided on 23.07.09. 7 specifically held that if the deficiency in the court fee is made good in terms of the order of the court, it must be held that the defects must be treated as re
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
