Dismissed

M/s Kshitij Infraventures Pvt. Ltd. v. Mrs. Khorshed Shapoor Chenai and 2 Others

Telangana HC7 Jan 2022CCCA/66/2020

Case brief

AI extract

What is this about?

Appellant sought condonation of 1691 days' delay in appealing the dismissal of a 2003 city civil suit that had earlier been decreed on compromise but was later dismissed for non-payment of the court fee directed on remand. The High Court found the appellant aware of the proceedings throughout and guilty of suppression, holding no sufficient cause shown.

What the court decided

AI extract

M/s Kshitij Infraventures Pvt. Ltd. Vs Mrs. Khorshed… — Property and Title | Telangana HC (2022)

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYOERABAD

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FRIDAY, THE SEVENTH DAY OF JANUARY

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TWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HONOURABLE SRI JUSTICE P NAVEEN RAO

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AND

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THE HONOURABLE SMT JUSTICE P.SREE SUDHA

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l.A.NO:^'l OF 2020

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AND

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C.C.C.A. NO: 66 OF 2020

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Appeal under Section 96 of CPC against the Judgment and decree dated 2810412015 in OS No.69 of 2003 on the file of the Court of the Xlll Additional Chief Judge, City Civil Court, at Hyderabad.

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Between:

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L4/s Kshitij lnfraventures Pvt. Ltd., (Formerly known as Ashish Developers and Builders (P) Ltd. having its registered office at Plot No. 136/4, Road No.12, Banjara Hills, Hyderabad rep. by its Director Sri. Rajkumar Malpan

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.,APPELLANT

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AND

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Mrs. Khorshed Shapoor Chenai, W/o late Shapoor Rasheed Chenai, R/o 5-92211, Shapoorwadi, Adarshnagar, Hyderabad,

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Dewan Bahadur Ramgopal Mills Ltd.^(DBR Mills), 1-2-630, Elchigudabagh, Lower Tank Bund Road, Hyderabad, rep. by its Chairman and Managing Director.

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DBR Mills Employees Union (Regd. No. 8-947), Affiliated to INTUC, rep by General Secretary D. Srinivas, S/o D.Rangaiah, R/O H. No. 43-127, Moulali Hanuman Nagar' Rangareddy District

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...RESpoNoENTs

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lA NO: 1 OF 2020

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Petition under Section 5 of Limitation Act, praying that in the circumstances stated in the affidavit filed therewith, the High Court may be^pleased to condone the delay of 1691 days in filing the^present appeal against the Judgement and Decree Daled 2810412015 in O.S. No. 69 of 2003 on the file of the learned Xlll Additional Chief Judge, City Civil Court

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For the Appellant : SRI OAMMALAPATI SRINIVAS, SENIOR^ADVOCATEFOR SRI.SATYANARAYANA RAO ADIRAJU, ADVOCATE

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For the Respondent No.1 : SRI K.VENKATAORI RAJU, ADVOCATE

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For the Respondent No.2 : SRI S.NIRANJAN REDDY, SENIOR^ADVOCATEFOR SRI C.NARESH REDDY, ADVOCATE

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For the Respondent No.3 : SRI B.SREEHARI, AOVOCATE

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The Court delivered the following: JUDGMENT

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HONOURABLE SRI JUSTICE P. NAVEEN RAO &

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HONOURABLE SMT JUSTICE P SREE SUDHA

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I.A. No. 1 OF 2O2O And CCCA No. 66 OF 2O2O

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ORDER: (Per Hai'bl? Sn Justice P.Neuee Roo)

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,' "Heard Sri Dammalapati Srinivas learned senior counsel representing Sri Satyanarayana Rao Adiraju learned counsel for .: ap5lellant/plainttff no.2; Sri Venkatadri Raju learned counsel for thiid respondent/first plaintiff, Sri S.Niranjan Reddy learned senior counsel representing Sri Naresh Reddy learned counsel for frrst respondent/ first detendant and Sri B.Sree Hari learned counsel for second respondent/ defendant no.2."

¶32

t This is an application filed to condone the delay ol 1691 days in preferring appeal against the judgment and decree dated 28.4.2015 in O.S. No. 69 of 2003 on the file of XII[ Additional chief Judge, City Civil Court, Hyderabad. petirioner/ appellant is the plaintiff No.2 in O S No. 69 of 2003. The third respondenr is plaintiff No. 1 and respondents 1 and 2 are defendants 1 and 2 to the^:suit.

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From the pleadings, to the extent relevant, the timeline of the litigant I leading to this application is noted hereunder. Respondent no.3 claims that late Shapoorji Chenoy was the owner of the suit schedule property (Acs.22.05 guntas) and she has succeeded to the said property. The suit schedule property is Municipal House bearing No. l-2-630, Elchibegguda, Lower Tank Bund Road, Hyderabad. It forms part of Sy.Nos.157 I I to 3, 158/ 1 & 2, 159

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CCCA No.66 o12020

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and 159/1 of Bakaram village, co-related^{to TS.No.27, Block-B,} Ward No.76 of Bakaram village.^{The suitschedulepropertywas} leased out in^{perpetuityby late Shapoorji Chenoy to Dewan} Bahadoor Ramgopal Mills^{Limited (DBR MiUs)for the purposeof} running Textile Mills.^{Accordingto DBRM iUs, ithas also} purchased Acs.4.0O guntas of adjacent^{land. In the said manner,} it has acquired in all Acs.26.05^{guntas of lancl. ln the said land,} DBR Mills w'as established.

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Alleging that several terms^{of lease agreementwere violated} by the lease holder resulting^{in lease becominginoperativeand} claiming that plaintiff is entitled^{to recovery of possession, to} recover arrears of ren! and^{damages,legal proceedingswere set in} motion and plaintiff no.1 instituted^{O'S.No.1201of1995,} renumbered as O.S.No.69^{of 2O03 on the file of XIII Additional} chief Judge^(FTC), City Civil Courts,^{Hyderabad,praying to glant} decree of eviction of defendant^{No. 1 from the leasedproperty and} to pay damages. On 03.12.1998, the appellant^{herein entered into} agreement of sale with the respondent^{no.3 hereinin respectof the} suit schedule^property. Thereafter,^{the appellant impleaded as} plaintiif no.2. DBR Mills Employees Union was later impleaded^as Defendant No.2 to the suit.

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While so, plaintiffs I and 2 and first defendant^soughtto resolve the it-Lter se dispute and entered^{into compromiseon} 08.03.1999. In terms of this compromise, appellant^{gets full rights} on Acs.6.O0 out of suit schedule land^and l"i^{respondent owns} remaining land of Acs. 16.00. The compromise^{memo was filed} into the Court through I.A.No.359 of 1999.^{Second defendant filed}

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an affidavit seeking leave of the Court to allow him to join as a party to the compromise memo and agreeing to record the compromise and to pass judgment in terms thereof.

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Though, initially agreed to resolve the dispute amicably and entered into compromise when matt'er was considered by the trial Court to record the compromise and to render judgment, the first respondent opposed the compromise by contending that there was huge delay in presenting the compromise memo causing financial drain and sought to record fresh compromise before an Arbitrator. Over-ruling the objection of 1st respondent taking recourse to Order XXIII Rule 3 of CPC, by judgment dated 03.04.2003, the Trial Court allou,cd I.A.No.359 of 1999 and decreed the suir in terms of the compromise. The Trial Court also directe(l to pay the Court fee if any required, as per the terms of compromise.

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The respondent no. I filed CCCA No. 350 of 2003 before l Hon'ble High Cor-rrt challenging the compromise Decree dated 3.4.2003. The respondent No. 2 herein also preferred CCCA No. 74 of 2004. CCCA No. 329 of 2OO3 and CCCA No. 131 of2004 were filed by third parties. All the four appeals were clubbed and by a common judgment dated 12.4.2004, the Division Bench of this Hon'ble Court dismissed all the appeals, thereby confirming the compromiie decree dated 3.4.2003. However, for the limited purpose to assess the value of the property relating to compromise, and the Court fee payable thereon, the matter was remanded to the trial Court.

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Challenging the decision ol this Court, Special Leave Petition Nos. 13630 to 13633 of 2005 rvere filed and the same lvere

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CCC.4 No 66 of² 020

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dismissed by the Hon'ble Supreme Court by order^dated 21.4.2005. Review Petitions filed against the dismissal^{of SLPs} were also dismissed by order dated 24.8.2005.

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On remand, the suit underwent several adjournments^to secure the market value of the land in^{issueand thereafter for} payment of Court fee. Holding that even though several adjournments were granted plaintiffs have not^paid the court^fee they lorfeited their right and linally dismissed the suit^{by judgment} dated 28.04.2015.

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The first respondent filed O.S.No.293 of 2019 tn the Court of X Additional Chief Judge, City Civil Court praying to^grantdecree of cancellation of the registered documents bearing document no.1349 of 2009 dated 27.1O.2OO9 and document no.1350 of 2009 dated 28.10.2009.

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t l Appellant claims that he came to know about dismissal of O.S.No.69 of 2003 only when he received summons in O.S.No.293 of 2019. Immediately thereafter he has obtained all the documents and instituted the appeal suit. In preferring the appeal, there is a delay of 1691 days. Therefore, appellant filed this l.A.No.1 of2020 to condone the delay in filing the appeal.

¶49

12.1. Learned senior counsel for the appellant Sri Dammalapati Srinivas contended that Order XLI Rule 26A ol CPC per force requires trial Court to issue notice to parties by lixing the date of hearing on remand, but this Rule was not complied. After the remand by this Court in CCCA Nos. 329 of 2003 and batch, no notice was served on the appellant. Therefore, the appellant was

¶50

not aware of the proceedings taken up by the trial Court. Before suit was disposed of, first time, both plaintiffs were represented by different Lawyers. After the remand, appellant was not represented by a lawyer as no notice was given to the appellant on remand and only lawyer for lirst plaintiff appeared. Appellant came to know only for the lirst time r.r,hen he received summons in O.S.No.293 of 2019 pending in the Court of the X Additional Chiei Judge, City Civil Court, Hyderabad instituted by the first respondent and immediately he has taken steps to hle this appeal.

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12.2. He r,,'ould lurther submit thar as per the judgment and decree passed b1, this Court in CCCA No. 329 of 2003, payment of Court fee would arise only after assessing the value of the property and after the assessment the plaintiffs had two months time to pay tlte Court fee. The suit underwent several adjournments only for the purpose of ascertaining valuation of the suit schedule property. The valuation was furnished only on 01.12.2014. No reasonable opportunity was given to the appellant to pay additional court fee after valuation of the suit schedule property was furnished by the Registration Department.

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12.3. He would lurther submit that the suit was disposed of in terms of the compromise. The decree granted by the trial Court was a{firmed by tl.ris Court and by the Hon'ble Supreme Court. The remand b1'this Court u'as only r;r,,ith relerence to dete rmination of Court fee payable in terms of the compromise recorded b1, Lhe trial Court and therefore the trial Court grossly erred in dismissing the suit and is thus per-se illegal.

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cccA No.6tt af ) 20

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12.4. He would further submit that the trial Court went beyond the scope of remand. The suit was remanded only for the purpose of determining the additional court fee payable, therefore the trial Court could not have dismissed the main suit when the decree granted by the trial Court was affirmed by this Court and Hon'ble Supreme Court. The rights accrued by virtue of a compromise which were affrrmed by decree of the trial Court cannot be taken away on mere ground of not paying tl.e Court fee.

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12.5. He would further submit that payment of appropriate Court I fee is between the plaintifls and the State. Therefore, 'inter-partes' the compromise entered into is binding and said compromise cannot be nullified on mere ground of non payment of the appropriatc Court fce. It is a curable defect and even at this stage it can be cured. This Court should permit the appellant to deposit the balance Court fee and to confirm the declee as originally granted by the trial Court and affirmed by this Court and Hon'ble Supreme Court. The said course would be^just and equitable. The substantive right created and vested in the appellant by virtue of compromise cannot be nullified on the specious ground oflnot paying the appropriate court fee.

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12.6. ln support of his submissions, learned senior counsel placed reliance on the following decisions:

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Sri Rathnavarmaraja Vs Vimlal; Madanlal Vs MST Chhotaka Bibi2; N.Balakrishnan Vs M. Krishnamurthy3;

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t llerE) 7 s( c 1'l

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Perumon Bhagvathy Devaswom Vs Bhargavi Ammaal A.Nawab John and others Vs V.N.Subramaniyams; Manoharan Vs Sivarajan and others6; State/CBI (SpE) Vs Subrate Bhattacharjee and another?.

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13.1. Per contra, learned senior counsel Sri S.Niranjan Reddy, appearing for first respondent submitted that per-se suit is not maintainable unless proper court lee is paid. lt is the duty of the plaintiffs to comply with the mandate given bv the trial Court and affirmed by this Court regarding payment of Court fee. He would submit that order XLI Rule 264. of the CpC has no application to the facts of this Case. The trial Court is required to issue notices by fxing the date of next hearing only when the appellate Court remands a case on aspects falling under Rule 23, 23A and 25. According to learned senior counsel, none of the three contingencies provided in Order XLI Rule 26A of CpC are attracted to the case on hand. He would submit that except Order XLI Rule 264 there is no other provision in CPC which requires issuance of notice to the parties to the suit on remand.

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13.2. According to learned senior counsel, if Court fee is not paid the suit is liable to be dismissed and in spite of alfording due opportunity, as pltrintiffs Iailed to pay the court fee, the trial CoLlrt has rightly dismissed the suit.

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13.3. He would submit that there are no bona fides in prosecuting the litrgation. The appellant is only trying to drag on

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'(2008) 8 scc 12t

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'^{(20t2)7 scc 738}

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6(2014)4 scc t6l

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7 (2007) 2 Gauhati kw Repons 479

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( CCA No 66 af)020

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the litigation and frustrate the fruits of^{the decree granted} llt favour of the defendants by dismissing^{the suit}

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13.4. He would submit that^{the delayof 1691 daysin instituting} the appeal,^per-se, is on^{the very high side and no caseis made out} for condoning the delay.^The appellant^{failed to cxplain each day's} delay, When the delay is huge, it is^{his boundcnduty to assign} cogent reasons. He would further^{submit thatthe delay of 1691} days cannot be seen in isolation.^{The appellant was silentfor16} years and no explanation is offered on his^{conduct in prosecuting} the case before the trial Court from the^{year 2OO4I2OOS till 2015.} It was the bounden duty of the^{appellant to prosecute the suit and} to comply with the mandate of the^{trialCourt as affirmed by the} appellate Court to pay the balance^{court fee. Knowingfully well} that unless the balance court^{fee is paid, thedecree recording the} compromise cannot survive, he deliberately^{avoided payment of} additional court fee. He would submit that the^{appetlantis trying} to play game of hide and seek by^{not apPearirlg beforethe trial} Court and not complying u'ilh the directions^{of this Court to pay} the additional court lee and coming^{to this court to set asidethe} decree granted by the trial Court dismissing^{thc suit after a long} delay of 1691 days. He would submit that as^{pcr the valuation of} the property determined by the registration^{department,the} appellant was required to pay Court fee^{as per valuationof the} suit schedule^property as applicable^{in the year 2004. If what is} contended by the appellant is accepted, he is^{required to payithe} same court fee even after 17 years whereas the^{valuation of lthe} suit property as ol now is flr higher. Thus,^{no indulgencecan be}

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shown by this Court to permit the appellant to pay the same Court fee as payable in the year 2004 after l7 years.

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13.5. He further submitted that it cannot be said that appellant was not au'are of the mandate of this Court for payment of Court fee and pendency of suit before the trial Court. By referring to paragraphs 9, 10,12 and 13 of the affidavit filed in support of I.A.No.1 of 2O2O, he would submit that what is stated therein is a blatant lie. He would submit that as can be seen from the affidavits Irled in CCCAMP No.331 OF 2006 of 2006 in CCCA No.329 of 2003 and CCCAMP No.332 of 20O6 in CCCA No.350 of 2003, deponent to the affidavit filed in support of this application was also deposing on behalf of both rhe plaintiffs in the suit. In CCCAMp No.331 of 2006 in CCCA No.329 of 2006 and CCAMP No.332 of 2006 in CCCA No.35O of 2003 deponent sought for listing of the appeal suits unclel the caption "for being mentioned,, Ior seeking clarification with regard to observation made as to calculate the court fee. It was pleaded that the value of the subject lnattcr oI the compromise was Rs.4 crores, and plaintiffs offered to pay court fee on amount of Rs.4 crores and accordingly this Court u,as pleased to remand to thc trial Court, for limited purpose of calculation of the Court fee by treating the value of the suit schedule propero/ as Rs.4 crores only. It was pleaded that there was ambiguity on this aspect and it requires clarification. He would further submit that as evident from the record CCCAMP No.11963 of 2004 (l.A.No.2 of 2004) was filed seeking extension of three months time for assessing the value oI the property. Said I.A. was disposed of on 2.2.2006. Therefore, appellant cannot plead ignorance ol proceedings pending before the trial Court. Further, even

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CCC/| No-66 af2020

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according to this appellant, at least the first plaintiff was represented by an advocate before the trial Coun.

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13.6. He would further submit that during this period he was pursuing with the registration department to register the deed sought to be registered by the first plaintiff, in favour of the second plaintiff whcn registering authority refused to register, W.P.No.25l81 of 2006 was filed. Alleging disobedience of the order of this Court C.C.No.1344 of 2007 was filed. The deponent herein deposed to the affidavit filed in support of W.P.No.23132 ot 2Ol2 filed by the first plaintiff challenging the endorsement given by the registering authority on 12.1.2012 insisting to secure ho objection certificate' for the purpose of registration of the document sought to be registered by plaintiff No.1 in favour of plaintiff No.2. Based on the directions issued by this Court, he got the document registered in his favour. Again he was also deponent to the affldavit filed in WP 11349 of 2074. This writ petition was filed challenging the decision of the Municipal Commissioner rejecting the building plans submitted by the appellant for construction of commercial complex on the very same land. During this period, he filed two applications before this Court in the year 2006. AII these aspects clearly point out that appellant was a\,are o[ the proceedings belore thc trial Court, watching from sicle lines a:rd therefore what is pleaded is a blatant lie and amounts to plaving fraud on the Court.

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13.7 . He would further submit that the Division Bench of this Court in^judgment dated 12.4.2004 while remanding the suit for determination of valuation of the property and calculation of

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I-l

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additional court fce clearlv observed that the judgment rendered by the trial Court in O.S.No.69 of 20O3 has binding effect only on payment of Colrrt fee. Thus, the appellant was aware of the consequences of non payment of court fee and therefore assertion that the rights accrued to them by virtue of a compromise arrived between the parties and recorded by the trial Court is erroneous. The limited right accrued to the appellant by virtue of compromise decree is subject to payment of court fee.

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13.8. He u'ould further submit that Section 23 of the Indian Registration Act requires registration of the decree rvithin four months of the date of clecree. Unless the compromise decree is registered it has no legal sanctitv. No steps were taken to seek registration of the decree as required bv section 23 ol the Registration Act, 1908. He would further submit that even otherwise deed of compromise also requires registration rvithin four months from the date of compromise but no endeavour rvas made by the appellant. The appellant can claim to have acquired right as per the compromise deed only if the payment of court fee r.r.as made as mandated by this Court in paragraph 72 ofjudgment in CCCA No.329 of 2003 and batch and registered as required by Section 23 of the Registration Act, 1908.

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13.9. In view of the time limit specihed by this Court and having regard to the provisions in Section 23 ofthe Registration Act, 1908, Article 137 of rhe Limitation Act, i963 and no application seeking extension of time is filed. Having regard to history of litigation it is not just and equitable to treat such delay as reasonable and justified.

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C(CA No.66 ol2A)0

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13.10. He would further submit^{that consequentto the rernand} with specific observations in^{paragraph72 of lt.e judgmentof this} Court, the suit was brought back^{to life beforethe trial Court and} affirmation of the earlier^{judgmentand decreeissubject to} payment of additional Court fee.^{Sincesuit was brought to life and} plaintiffs did not prosecute their suit,^{trial Court could dismissthe} suit on that ground, therefore,^{no error was committed by the trial} Court.

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13.11. In support of his^{contentions, learned seniorcounsel} placed reliance on the following^decisions:

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Rama Narang Vs Ramesh^{NarangandAnother8;} Basawaraj and another^{Vs Special Land Acquisition Officere;} Lanka Venkateswarlu Vs State^{of Andhra Pladeshro; Balwant} Singh Vs Jagdish Singh^{and otherslr} ;^{Ramlal and others Vs} Rewa Coalfrelds Ltd12; Srinagar^{Kanwar Vs Hari Singh13.}

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Issue for consideration^{is whetherpetitioner/appellant is} entitled to condone delay of^{1691 daysin irling theCCCA No. 66 of} 2020?

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It is made clear at the outset that^{as the issue is at the stage} of consideration of application^{to condonethe delay in preferring} the appeal, the court is not dwelling^{into meritsol the case.}

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'tll)Lx,) l1 sCC lll

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'r ln ll lJS(CS rlr)l )rSCC16l

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' l:ol1lr E Sa('685

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: ArR lth2 5c 16r

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' RLrv ?006 (t) Rrl 275 = 11)()6⁽ l)^{'rLC 1l}

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Section 96 of CPC vests right in an aggrieved party to avail remedy of appeal. Against the decision of the District Court, appeal shall lie to the High Court. Remedy of appeal has to be availed within 90 days from the date of decree in the suit. Section 514 of the Limitation Act vests discretion in the High Court to entedain an appeal filed after 90 days by condoning the period of delay. Such condonation is subject to the appellant showing sumclert cause for not availing the remedy of appeal within 90 days.

¶100

Scope of Section 5 of ttre Limitation Act and scope of power of Court to condone the delay in filing an appeal s.as subject of consideration in plethora of precedent decisions ol this Court and the Honble Supreme Court. Sufhce to note few land mark decisions to understand the concept of sufficleat cause.

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17.I. In Perumon Bhagvathy Devasom (supra) and I{.Balakrlshnan (supra), the Supreme Court considered tvhat is meant by lufflclent cause'and the scope of exercising of discretion in condoning delay.

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17.2. In Maniben Devraj Shah v. Municipal Corporation of

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Brihan Mumbairs, the Hon'ble Supreme Court held as under:

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'14. -..-fhe la$ of limilarion is founded on public policy. The Lim,ratjon Act, 1963 has nor been enacrcd with rhe object ofdcstroying lhe righrs ol' the parties but ro ensure rhat rhey approach rhe cou( for vindicarion of (heir rights wirhout unreasonable dela1. The idea underlying the concept of limjtatjon is that every remed), should remain alive oniy rill thc expiry of the period fixcd by lhe legislature. At the same time, rhe courrs are empo$ered to condone the delay provided that sufficienr causc rs sho\r,n by the applicant^jbr not nvailing thc remedv $ithin lhe prescribed period of Iimitation.

¶105

l4 s.s. Er..r,ror or Dr...rib.d P rh. provrsrons oI o!d.' xi(: 0r ' applrcMt $ris6.3 thc corn ri or preri'ins rhc HrjlEiror nnLkng rhr,rpp !.irro \rh,j sr I h pnGl ,rPlonolon.-'jhe l,r.r rliin rlL rrp.llanr or rhc ppl(Jnr lar nr sl.il hr .'n1- onl€r. f,ar"rc or,u!!(:::.r I uf rh. rrr3n (ou.r L alcrnarn'n8or.o'opL1L.B!h(ph\nrdp.Lodn.nrbcsuiicr(nr.ar$.r hrn!r,eDr(rnLxsorrhLsy.rorL "^{120t21s scc rs:}

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( (LA Na.h6 of )U0

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15.'lhe expression'suflicicnt cause'used in^{Scction 5 of the Limiration} Act, 1S63 and oLher statutes is elaslic enough !o^{enableahe courtsto} apply th€ law in a meaningful manner which serves^{the endsoljustice} No hard-and-fast rule has been or can be^{laid down fordecidingthe} applications for condonation of delay but^{over theyearsthis Courthas} advocaled that a liberal approach should be^{adoPted in such matlercso} that substantive rights of the^parties are^{not defeated merely because of} delay.

¶109

In &dmlalv, Re@d. Codtlletds Ltd,lAlR^{1962 SC 3611 thisCourt} while intcrpreting Seclion 5 of the Limitation Act, laid^{down th€ following} proposition: (AIR pp. 363-64, para 7)

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'Z In construing Section 5^(of t}le Limitation^{Act) i! is} r€levant Lo bear in mind lwo important considerations. The firsl consideration is that the^{expirario.of the} period of limihtion prescribed for making an apPeal gives rise to a right in favour of the decree_holdcr^Lo treat the decree as binding betwecn^{theparties. ln other} words, uhen the perlod of tl','ttatto'1^{prescrlbedhds} exptred the tlecree-holdet ho's obtalned^qbenellt u der the tdu oI tlmitdtlo^ to tredt^{the decree .ts} begoid chaltenge, a d thts legdl rlght^{uhich ho's} dccrued to the ileciee-holder bg lqPse^{oJ tlme should} ^ot^{beUght-hedrtedlydlsturbed. Theolher} consideration lvhich cannor^{beignored is lh.rtif} suffrcient causc for excltsins dcla)^{rs shorvndiscrctionjs} given ro the cor]rt to condonc dela!' and adnlil the appcal. Thls dlscretton hd's^{beendeliberdtelg} co Jerred on the cou4 lt ord.er thdt iudlcial^pouer dnd discretlon i^ thdt behav should^{be exerclsedto} dduance substa tlal iustlce.'

¶111

In Collector (LA) v. I<d.tut l\19871 2 SCC 1071^{this Court madea} significant deparlure lrom lhe earlier^judgmcn ts and obscrycd: ISCC^pp. 108'09, pam 3)

¶112

'3. The legislature has confcrred^lhe Polver^{to condonedelay} by enactinS Scction 5 of the Limilation Act ot 1963^{in order} to enable the courls^Lo do substantial iusrice^to l)artics^by disposing of matters on 'rrcnts'. Thc expression 'sufficient causc employed by the legislatutc is^{adcquatel)'elasLic to} enablc the courls to apply thc la$'in^{a mcaniogfulmanner} which subserves the ends of^justicc-that being the^lifc- purpose lor t}lc exisLence of thc institution oi coLrrts. lt is common knowlcdgc that this Court has been^makinga justfiably ljbcral approach in malters instituted in Lhis Court. But lhe message does not appear !o have Percolaled down !o all tlre other courts in the hierarchy.^Andsucha iiberal approach is adopted on^principle as^{it is realisedlhat:}

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(l) Ordinarily a litigant does nol sland to benciit by lodging an appeal late.

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(2) Refusing to condone delay can result in a meritorious matter being thrown out at thc^very threshold and cause of^justice being defeated. As against this when delay is condoned the highest lhat can happcn is ttral a cause would be decided on merits after hearing the parties.

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{3) 'Evcry^{daysdelaymustbe explained' docs nol} mean lhat a pcdanlic apploach should be made. why not every hour's delay, evcry sccond's delay? Thc doctrine must be applied in a rationaL common sense plagmatjc manner.

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(4) When substantial justice and technical considerations are pitted against each other, cause of substanlial iusticc deserves to be^prcferred for lhe other side cannol claim to have vcsted riShtⁱⁿ injustice bcing done bccause of a non_deliberate dclay.

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(q Thcre is no presumption that delay is occasioncd deliberately, or on account ol culpable negligence, or on accounl of mala fides. A litigant docs not sland to benclil by resorting to delay. In fact he runs a scrious risk.

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(O Jt must be grasped .hat judicisry is respected not on dcuount of ils pouer lo legalrsc injus cc on lechni(ial grounds but because it is capable ot rcmoving injusticc and is cxpected to do so.....'

¶120

In rV, Balakrish^dn e. M. I<r"lsh^amurthg l{lrl98) 7 SCC 1231. thc Court \vcni n strp furrher and made the follo$,ing observationsr lsCC pp. 127-28. paras t l1 & 13)

¶121

''., Il is r\iomitic that condonation of dcla\ is d mii(trr (,1' discretion of the corlrt. Scclion 5 ol thc l,imrtation Acl d{x,s o(,! sir'iiraL such .lisctution can be cxercised onlt il t]r( dcla) rs \rlhin a ccr(ain limrt. Iangth oJ deldg ls no rn(,.tter, acceptdbtlltg oJ the explq d.tio'l. ls the o^lg crlterlon. Sometrmes delal, of the shortcst range may bc uncon(ionnbie duc ro a want of acceptable explanati.rn lthereas in ccrtajn other cases, delay ol a very long range can be corldoned as the explanation thereof is satislacton'. Once the cour! accepts the explanation as sufficien!, it is !he r€sult of positive exercis€ of discretion and normal, the superioi cr)urt should not disturb such finding, much less :n revisional iurisdiction, unless the exercise of discretion was on wholly untenablc grounds or arbitrary or perverse. But it is a dilfcaent matter when the llrst court refuses to condone the dela!. Ia such cases, the superior court would be frce io consider the cause shown Ior the delay afresh and it is opcn to such superior court to come to its own finding even untrammclled by the conclusion of the lorver court.

¶122

I l. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but scek thei. remedy prcmptly. The object of providing a legal remedy is to repair the damage caused by reason of leeal injury. The law of limitarion fixes a lilespan ft)r srich legal remedy for the redress of the legal injurl so suffered. Time is precious and B,asted lime sould ncver rcvisir. During the efllux of time, newer causes $'orLld sprout up necessitating nelver persons to seek legal remedl' lry approaching the courts. So d llfespa'r 'nust be J1xcd Jor each remedy. Unending pcriod for launching^(he rcmedt rnay le.rd !o uncnding unccrtairrty lrnd consequential anarchl . The lau of Urnttdtlon. ts thus fo! ded on^publtc pohcy. lt is e shrined in the ma-xim interesl reipkbliee up .srl lri.s lrrirm (it is for the gencral \'clfare that a period bc pur t() litigation). Rules of limitation are not meant lo^(lcsrroy rhe riglrts of the parties. Theg are ?nea^t to see thdt partles do not resort to dalatory tactlcs but seek thelr rcned.g promptlg. The idea is that every legal rcmed)' mLlst ')e^{kept alrvefor a lcgislativelyfi\edperiodol timc.}

¶123

Ir must be remcmbcred that in every casc ol delay, thcte can be somc lapse on the part oi the litigan! concerned. Thrt alonc is not enough to turn do$,n his^plea and to shut the door against him. Il the explanation does not smack of mala fides or ir is not put forth as part of a dilatory strateK/, thc court must show utmost consideration to the suitor. But $hen there is rcasonable ground to think that the dela! was occasioncd by the party deliberately to gain !ime, then the court should lean against acceptance of rhe explanation. while condoning the delay, the court shouid not forget the opposite party altogether. l! must be borne in mind lhat he is a loscr and he too would have incurrcd^quite large litigation expenses. lt would be a salutary^guideline that rvhen courts condone the delay due to laches on the^part ol

¶124

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¶125

¶126

the applcanr, the courl shall compcnsatc the opp,)sile^parly lor his loss."

¶127

(emphasis suppli.dl

¶128

17.3. On revieru ol precedent decisions in Esha Bhattacharjee^v'

¶129

RaghuDathpur Nafar Academyr6 the Supreme Court summarized

¶130

the principles to be applied while decicling a condonation^{of delay}

¶131

petition as under:

¶132

"21. From the aforesaid authorilies the^{principlesthat can broadly be} culled out are

¶133

21.1.Ii Ther€ should be a liberal,^pragmadc, iuslice-oriented,^non- pedantic approach ivhile dealing with an application for condonation of delay, for thc courts are not supposed to legalise injustice^{but are} obliged to remove injustice.

¶134

21.2. {ii) The terms "sufficient cause" should be underslood^{in their} proper spirit, philosophy and purpose regard bcing had to lhe fact that these terms are basically elastic and are to be applied in^proper perspcctivc to rhe obtainlng facl- srluation.

¶135

21.3. (iii) Substantiai^justicc being^paramount and^pivotalthe technical considerations should not be^given undue and uncalled^for emphasis.

¶136

21.4. livl No presumptaon can be attdched to dellberate cdusatlo^ oJ deld.g b1rt, gross negllgence on the^part oI the counsel^or tlttgdnt ls to be tdken note oj.

¶137

21.5. (v) L<tck oJ bond fides iitputable to d^pdrtV seeking condo^dtlon oJ delag is @ slgntJicd.^t dnd releoa t fact.

¶138

21.6. lvr) Ir is to be kept rn mind that adhercnce to strict^proof shou)d not alfcct pubiic^justice and causc^public mischief becausc the courts arc required to bc vigilant so that in thc ullimatc evcntuiitc therc^{is no} real failure ol^justice.

¶139

21.7.l,til The concept oI llbetdl approach hds to eflcdpsule the conception of te&sonable'r'ess and lt ca^not be allouted d totdllg uftJettered free plag,

¶140

21 8. (vrii) "hele^{is a d{stinctionbetueeni^ordinatedelayand a} debg of short duratto^ or Jeu days, for to the fonner doctride oJ prejtdlce ls attracted uhereas to the latter lt ,nay not be dtttacted. Thdt apdrt, the first one uarrants strict approach Dhereas the second ca[s Jor a Uberrrl delifleatiot.

¶141

2l^q. lixt The co^duct, behauiour a d attitude of d^pqr-ty reldtitg to lts lnactlon or ^egltge co^sid.eration. It is so as ce the dle Ju^damental releua^t fdctors prl^ciple to be is taken that i^tothe courts dre reqrired. to welgh the scale oJ balance of Justlce l^ respect oJ both pdrtles dnd the s@id pr{nciple cd.nnot be^gben d totdl go b! ln the oJ ltberal approach. ^@me

¶142

21.10.^(x) I/the explanatton oJfered is cotrcocted or the^grotnds urged ln the applicatlon are Janciful, the courts should be vigtldnt ^ot to expose the other slde unrecessarily to Jq.ce s,fch d Utlg@tlon.

¶143

21.I 1, (xi) It is to be borne in mind thdt no one^gets auag uith Jrdud.,^{misrepresetatlon or interpolatlonbg taklngrecourse to} the tectu calittes oJ lau o:f llmlt.,tlo'r.

¶144

'n^{(lolt) t2 scc619}

¶145

¶146

21.12. {xii) The entlre gamit oJ tacts are to be careJuug scruttnized. and. the d.pproach should be bdsed on the patadlgm ol ludtclal discretloa ,l"htch is lou^ded on objecttue ..".o"i"g

¶147

and ^ot on Indltldual perceptlo^.

¶148

21 13. (xiii) 1-l)1, Sratc or a public bod'or an cnrir, r.eprcsen!l.ir a colle('r vc (...r.,.sh^Il.i b-I!'n s, rrr, .!.cel,.:,bt, lrll r,ti

¶149

To lhe trt,)rcsaid principles wc may add somc morc guiclelines taking note of lhe prcsent day scenario. Thel.are:

¶150

22-1. la) An appltcdtlo^ Jor co^do^atto^ oj detay shol,.ld be d.rd.fred wlth careful co1cenT did ^ot In a. hdv hd,.zard ,1/.o'r. er ha.rboutlng the notlon thdt the courts d.re requlied to co1do^e dcldg o the bediock of the prtftctple thdt ddjud.lcd.tto o! d. Us oa merits ls s€mindl to Justlce dtspe^sadon sgstem.

¶151

22.2. lb) An application for condonation of delay shoutd not be cleatr with in a rouiine manner on the base of individual philosophy whrch is basically sub.jecrive.

¶152

22.3 (c) Though no precise formr.tla can be laid do*.n regard being had to the concept ofjLrdicial discretion, yet a conscious effort for achicvinS consistency and collegiality of the adjudicatory system should be madl as that is the ultimate institutional motto.

¶153

22.4. ld) The increasing tendencl,f to perceive delay as a non- serious matter and, hcnce, lackadaisical propensity can be exhibired in a non, challant manner requires to be curbed, of course, \lithin legal

¶154

(emphasis supplie(l)

¶155

From the precedent decisions, it is discernible that the Court is vested with pou,er to condone the delay in filing an appeal if sufficient cause is sho\,n by the litigant. While assessing the reasons for delay and the quantum of delay, Court should adopr liberal approach. It is not necessary that person should explain every day's delay in literal sense. When substantial justice and technical considerations are pitted against each other cause of substantial justice should be preserved. Any course of action adopted by the Court must serve the ends of justice. Once the Court is convinced that delay is properly explained and is nondeliberate, court must lean in favour of condoning the delay.

¶156

However, r,r,hile exercising its discretion to condone delay, the Court is required to see whether delay is satisfactorily explained; there was no deliberate, wanton delay in prosecuting the litigation; litigant was nbt resorting to dilatory tactics; whether

¶157

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explanation lacks bona fides of litigant. The Court should also keep in mind the prejudice that may be caused to decree holder. The right accrued to decree holder by lapsc of time due^{to his own} failure to prosecute legal remedy within reasonable time cannot^be lightlv ignored. When the delay is long, as^ir-r this case,^the scrutiny is rigid and burden is healy otr the litigant to explain every aspect of his conduct and behaviour, fairll and^freelyduring the interregnum. Such assertions should not^{be fanciful.}

¶160

In the above backdrop, it is necessary to consider, whether the appellant has furnished sufficient cause for the delay of¹⁶⁹¹ days in filing this appeal. Further, conduct of appellant must^also stand the test of bona-fid.es, fair and frank submissions, not resorting to false hood, misrepresentation and suppression. To condone the delay of 1691 days in preferring the appeal, pelitionerappellant in his affidavit hled in support of the I.A. deposed that he did not receive notice in the suit after its remand and till^he received summons in O.S.No.293 of 2Ol9 instituted in the X Additional Chief Judge, City Civil Court, he was not aware of dismissal of the suit and therefore delay is not deliberate and rvillful. On the contrary, if delay is not condoncd grave prejudice would be caused lo hrm.

¶161

To appreciate this assertion of petitioner/ appellant, it is nccessary to note few landmarks in the^journey petitioner/ appellant has undertaken in his pursuit to own the suit property, and to develop the same, till this application is filed.

¶162

¶163

21.1. On 03.11.2004 rhe XIII Additional Chief Judge, City Civil Court, addressed letter to the High Court Registry ro grant 3 months to assess the value of the property. In the said letter learned Judge was complaining that advocates to parties 1r,ere not cooperating. lt is interesting to note that the learned Judge records that except advocate for plaintiff no.2 (the appellant herein), other parties or counsel did not appear. The same was registered as CCCA MP No.11963 of 2OO4. Taking note of the content in the said letter, by order dated 2S.ll.2OO4 time rvas extended bv three months.

¶164

21.2. Again a letter was $,ritten by the XIII Additional Chief Judge, City Civil Court, dated 24.10.2005, seeking extension of time complaining that Advocates to the parties were not attending and not cooper€lting to ascertain the value ol the properlv. This letter was registcred as CCCA MP No,8t6of 2005. On 06.02.2006, Division Bench directed the lower court to pass orders u,ithin a period of one month. In both occasions orders of this Court were passed in the presence of all the parties.

¶165

21.3. CCCA MP No.331 of 2006 in CCCA No.329 of 2003 and CCCAMP No. 332 of 2006 in CCCA No. 350 of 2003 rvere filed by the plaintifl no.2 in the suit (appellant herein) seeking to list the appeals under the caption "for being mentioned:' to clarify the effect of the order in paragraph- 12 of the judgment. In this clarification petitioner-appellant contended that the value of the property was shown as Rs.4 crores only and the matter was remanded only to pay the required court fee on the said amount. The said applications werc dismissed as rvithclrarvn on 01.0g.2007.

¶166

CCC4 No.66 o/2020

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2.4. After the remand and when suit was^pending in the trial Court, between 2OO4 lo 2015, several writ^petitions were filedⁱⁿ this court concerning the very same property. These writ^petitions were filed either by the appellant or by the^plaintiff no.1,^but authorized person to depose the affidavits,^petitions and to^enter appearance is same in all the writ^petitions, Sri Raj^Kumar Malpani. Few are noted hereunder:

¶169

(i) AppeUant filed W.P.No.25181 of 2006 against^rejection I to register the development agreement-cum-GPA^{dated 27.1O.2QO6} I and subsequent sale dced dated 28,10.2006 on^{Acs.6.00of land,} which is traceable to the settlement arrived betu'cen the^parties, by the Sub Registrar. The averments in the affidavit in support of the writ petition also disclose that the plaintiff no. 1⁽ⁱⁿ O.S.^{No. 69} of 2003 ) executed GPA on 19.09.2005 in lavour of the deponent to this application as Managing Director of the plaintiff no.2,^{(in O.S'} No. 69 of 2003) to represent plaintiff no.1 in all legal^proceedings. Based on the directions of the Court, those two documents were registered.

¶170

(i0 Appellant hled W.P.No.273l of 2Ol4 seeking direction to respondents not to insist No Objection Certificate from^the revenue authorities to apply for construction of commercial complex.

¶171

(iii) W.P.No.23l32 of 20\2 was filed chalienging the rejection of No Objection certificate (NOC) for construction of commercial complex by the District Collector.

¶172

¶173

(iv) Appellant filed W.P.No.11349 of 2Ot4 alleging that there is an attempt made by the revenue authorities to dispossess the appellant from the suit schedule land.

¶174

(v) Appellant f,rled W.P-No.13158 of 2016 praying to direct the Greater Hyderabad Municipal Corporation to release building plan applied by the appellant to construct commercial complex in the suit schedulc land.

¶175

(vi) Appellant also hled C.C.No. 1344 of 2Oe7 and C.C.No.829 of 201,4 alleging non-compliance of the orders of the Court in respective rvrit petitions. In CC No. 1344 of 2OO7 by order dated 8.4.2OO7 this Court gave further directions. ln compliancc of the directions of this Court in W P No. 25188 of 2O06 and CC No. 1344 ol 2007 the documents were registered on 27.10.2006 and 28.I0.2006.

¶176

(vii) In all the writ petitions mentioned above, the narrative is same and issue in one writ petition was flowing into another writ petition. Over all, the litigation process on the writ jurisdiction side, in all the above cases concerns the development activity sought to be taken up by the appellant on the suit schedule property flowing out of compromise dated 8.3.1999 entered into between the partics to the suit which was recorded while disposing of the O.S. No. 69 of 2003 on 3.4.2003.

¶177

21.5. Appellant sought to raise a strange plea that after the case was reopened, trial Court ordercd notice on 19.12.2OO9 but no notice was served on the appellant. Taking this sr-rbmission on its face value, it is not stated hou, prejudice is caused to him.

¶178

(:CC,4 No.66 oI2Ua

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2.1

¶180

Dismissal of suit results in dissolving the earlier dccree. Therefore, restoration of a suit dismissed for non-prosecution is to the advantage of the plaintiffs. There can be some^{justihcationif a} defendant complains that on restoration notice^was not^{served but} not by plaintiff. Further, if appellant did not^receive notice after suit was reopened, it would mean that for him^{suit was not} restored. If that is so and decree granted earlier was dissolved, it is not stated why appellant kept quiet for more than^{a decade. It} is apparent that this assertion is made^{withoutsense of} responsibility and more intended to divert attention from^his letharry and to gain sympathy by showing as if trial Court committed grave error,

¶181

21.6. Appellant fuither asserts that t\'o diflercnt lauyers^were engaged by plaintifls I and 2 in the first round of suit and on remand and on reopening Advocate for plainliff No.2 did not have notice. This is again a misleading statement. As averred in the several writ petitions noted above, plaintiff No.1 executed General Power of Attorney to Sri Raj Kumar Malpani, who is Managing Director/ Director of appellant company authorizing him to represent plaintiff No. I in all legal proceedings and has been doing so. Thus, plaintiff No.1 and plaintiff No.2 are not separate and in the facts of the case, it cannot be said that both are not abreast of stages of cases in various Courts. Thus, what is asserted is falsehood, a misleading statement.

¶182

The chronolory of dates and events clearly point out that appellant was abreast of happenings in the crvil Court. lt is also apparent that appellant has been actively, dealing with very same

¶183

l-i

¶184

property and pursuing the litigation at various stages in his craving to develop the property. From CCCA Mp No.1 1963 of 2OO4 taken up by the court based on the letter written by the XIII Additional Chiel Judge, Citv Civil Court, Hvderabad, dated 03.11.2004 seeking extension of time, it is apparent that his counsel was appearing in the trial Court.

¶185

On remand, the trial court has taken up the O.S.No.69 of 2003 to determine the Court fee payable b_v the plaintilfs, the trial Court called for information on the value of the subject property from the Sub-Registrar of Registration Deparrment. The suit underwent several adjoumments awaiting report. Holding that plaintiffs were not prosecuting the suit, it was dismissed for default on 13.11.2009 but was restored suo-moto by order dated 19.12.2009. It appears from the docket proceedings of the trial Court, on 07.12.2014 trial Court recorded receiving market value certificate and on request adjourned the suit to 03.12.2014. On 18,).2.2014 the Court directed the Superintendent of the Court ro frx the court fee. From 30.12.2014 case was adjourned on several occasions to pay court fee. Further, docket proceedings disclose that there lvas representation on behalf of the appellant. Suit underwent adjoLrrnments at the request of plaintiffs on several occasions but from 20.O2.2015 there &'as no representation on behalf of the plaintiffs.

¶186

On 09.03.2015 after recording, 'No representation, Court fee not paid, no.further time will be g.anted', Court adjourned the suit to 30.03.2015, On 30.03.2015, docket proceedings read as, "No

¶187

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¶188

2(r

¶189

represenldtion by plaintiff till evening hours.^{Hence, the right of the} plairtiff is forfbited. Defendants argttmettls^requesttime - 07.04.2015". Even after value of the suit schedule^propertywas determined, the plaintiffs did not^{evinccinterestin paying the} Court fee. It is thus apparent that^{plaintillswere not cooperating} with the Court. Having no other go, the trial^{court forfeitedthe} right of plaintiffs by order dated 30.3.2015.^{As Courtfee was not} paid, by judgment dated 28.4.2015 the trial Court dismissed^ttre suit

¶190

The compromise petitions filed in the suit^{disclosethat on} 03. 12.1993 plaintiff no. I and^plaintiff no.2^{entered into agreement} in respect of suit property. ln terms thereof,^{plaintiffno.2 agreed} to pay Rs.60,00,000/- (Rupees sixty lacks) to^{plaintiff no.l to} construct 4O,0Oo square feet commercial^{building on 3000 square} yards and to get the dispute between plaintiff no.1 and defendants settlcd. In tcrms thereof,^plaintiff no.2 stepped into^{the shoesof} plaintiff no. 1. The terms of compromise also disclose that^Acs.6.00 of land demarcated in green colour in lhe map^{would be the} absolute property of plaintiff no.2, subject to tcrms^{of agreement} with plaintift no.1 and the defendants^{wouldbe the absolute} owners and possessors of balance Acs. 16.00 of land^{shown in} yellow and red colours in the map. It is thus apparent that^the appellant herein is beneficiary of compromise decree^entered between the plaintiffs and defendants in O.S.No.69 of 2003.^It cannot be assumed that appellant was not conscious that his interest flowing out of compromise recorded in^{O.S. No.} 69 of²⁰⁰³ get extinguished, if Court fee is not paid.

¶191

¶192

I Al this stagc, it is necessary to consider the decisions citecl by learned senior counsel for appellant to contend that delay in paying Court fee can have no impact on the decree alreacly passed in the suit. We notc hereunder the summary of said decisions

¶193

26.1 ln the casc of Mannan Lal. v. Chhotaka Bibi,rT the appeal in {uestion was a Special Appeal granted by certilicate and its maihtainability with regards to the U.p. Act abolishing such appeals. It was also noted in the judgment that the deficiency in court fees was made good later.

¶194

26.2. In Manoharan v. SivaraJan (supra), Court held that the High Court ought to have taken a more compassionate view in light of the appellants. inability to pay balance court fees due ro financial constraints while refusing to condone delay in filing of application. This has no bearing on the matter in hand as appellant has not taken any such specific stance of financial constraint-

¶195

26.3. In A.Nawab John {supra), the Court held that the power to condone delay in payment of court fee, although discretionary, is conditional upon an acceptable explanation for such delay in payment.

¶196

Though suit was decreed recording the compromise, the trial Court having noticed that in terms of the compromise memo valuation of the suit increased, observed that difference of Court fee is required to be paid. In the appeals preferred against the judgment and decree of the trial Court this issue was also raised

'!uro1^{I sccroo}

CCCA No.66 oJ2a20

before this Court. This Court having^{affirmed the decisionof the} trial Court on reasons for^judgment and^{decree,remandedthe} matter to the trial Court for determination of^{appropriate valueof} the suit schedule property and court^{fee payableby the plaintiffs.}

¶201

2a. Being a party to the^{appeal suit, thescope of remandis} knorvn to the appellant. It is^{useful to extract paragraph-72 of the} judgment in CCCA No.329 of 2003 and batch. It rcads^{as under:}

¶202

"72. Final', ir is the arguments of thc appcilanls^{that thcplaintiffs did} not pa] Lhe court fce and hence lhe^{judgment anddccrce cannotbe} passed. It is true tha! in the decree itself, the^{trial courl withregard to} payment of court fee held as followsl

¶203

'It is hercby directcd to^{pay the courtfeeiI anyrcquircdto pa/.}

¶204

Therefore, it goes to show that the^said .iudgmcnl^{lvillhaveth€} binding effect only on^paymenL of the court^{fee.Asthe trial Courtio its} decree did not assess the value of^{the propertyrclating to compromise} and paymena of court fee thereon, the^{malter is remanded to the trial} court with a direction to assess^{the value of the property relatingto} compromise and the court fee^{payablethereon withid a period of three} months from the date of receipt^{of a copy of this order.Onsuch} assessment, the respective^parties are directed^{to pay thesamewithina} period of two months lherealter in the court below.

¶205

As seen from paragraph-72 ot^{lhe judgment of this Court in} the appeals, this Court held that the^{judgment ol the trial Court} will have binding effect only on payment of Court^{fee. It cannotbe} said that appellant was not aware of the^{consequencesof not} prosecuting the suit on remand in order to secure^{benehts of} compromisc decree. No right accrucs to ilim to deal^{with Acs.6.00} covered by compromise unless the court^{fee was paid.Therefore,} it is his responsibility and in his own interest^{to ensure that} appropriate value of the suit schedule^{property wasdetermined} and court fee was paid thereon within the time^{stipulatedby the} Division Bench of this Court. Further, as seen^{from CCCAMP}

¶206

¶207

No.331 of 2006 and CCCA MP No.332 of 2006, which u'ere liled to takC up CCCA No.329 of 2003 and CCCA No.350 ot 2003 as^,for l beidg mentioned' the appellant rt,as conscious that the plaintifls werd required to pay high amount of court fee and therefore was praling to restrict the valuation of the,property.

¶208

, Further, from the operative direction of the Division Bench, aftei the determination of the valuation, the plaintiffs were required to pay court fee within a period of two months. From the l docfet proceeding sheet before the trial Court fi1ed by the I plaii-rtitfs, it is noticed that by O1.12.2014 , market value was I detelrmined. Thus, from 01.12.2014 plaintilfs were required to pay couit i fee r.r'ithin rrro months. Even after expiry ol two months from thatl date, trial Court accommodared the plaintiffs till 30.03.2015 i.e., ifor four montlts. No application u,as filed before this Court seeking extension of time for payment of court lee nor Court Iee was paid rvithin the time granted by the trial Court.

¶209

It is apparent that even though adequate time was available and trial Court accommodated, for the reasons best known, the pla1n tiffs did not choose to pay the court fee. Further, Section 11 of .Te Andhra Pradesh Court Fees and Suit Valuation Act, 1956 the plaint is liable to be rejected if the deficit fee is not paid In e facts of this case, the decisions relied bv the senior counsel for the appellant do not come to his rescue

¶210

Furthermorer even after he received summons in another suit on 02,05.2019 he kept quiet for about 17 months before instituting this appeal. In paragraph-1O he vaguely avers that he approached his Advocate and instructed him to applv for docket

¶211

CCCA Na 66 of 2D0

¶212

¶213

proceedings and was ur,d,er bona fi.de impression that his Advocate was pursuing the matter but to his utter shock and surprise^there was no progress and fed up with the inaction of^{the Advocate, he} applied for docket proceedings on 08.09.2020^{and then instituted} the appeal. The pleadings in^{paragraph10 are veryvague. He has} not stated as to who was his Advocate,^{when he approachedhis} Advocate and how he was pursuing with the^{Advocateandwhy he} kept quiet lor more than an year afler^{ir.rformingthe Advocate to} secure the certified copies. Having regard to delay^{of 17 months} even from 2.5.2019 appellant owes a responsibility^{to explainto} the court how he was prosecuting his legal^{remedies even from the} date of alleged knowledge to show his bona fi"des.

¶214

Thus, the conduct of the appellant would clearly show^he was only watching from lhe side lines and not intending^to prosecute the litigation as a bona ftde person in asserting his right before the trial Court after the remand and after the suit^was dismissed. More so, all through he was prosecuting the litigation before this Court on the appellate side and under Article 226 of the Constitution of India and with various statutory authorities concerning the very same property.

¶215

We see no merit on reliance on Order XLI Rule 26-4 of^CPC. Except in three contingencies mentioned in order XLI Rule 26-4 of CPC covered by Rules 23, 23-A and 25, Civil Procedure Code^do not envisage notice to the plaintifl on remand. The case is not covercd bv those three contingencies. in no othcr circumstance of remand, Civil Procedure Code envisages notice to parties. More particularly in payment of appropriate Court fee. It is the duty of

¶216

¶217

plailtiffs to pal, proper court fee. Therefore, plaintiffs were req I ired to persuade the trial court to determine the value of the prope rty and to fix the court fee and pay the court fee as assessed. Shelter under this provision is resorted only to cover up his conduct. At any rate, this plea is not available to appellant as he was represented by a counsel before the trial Court after remand. Thus, what is contended amounts to speaking falsehood and suppressing true and correct facts.

¶218

I Further, the Appeal suit was disposed of in the presence of I parties to the suit. The Appellant lvas a[,are of reason lor rcmand, He being I the plaintilf No.2 he is also au,are of his.luty to pa], additional Court lee

¶219

In this background, it cannot be said that appellant ivas not aware of the proccedings pending before the trial Court and the orders passed therein even before the suit was hnally decreed. Sinie 24.8.2005, the day on which Supreme Court dismissed the review petitions till filing of this appeal, appellant was rvatching the p.ogl.."" of litigation from the side lines. The assertion of the appdllant I that he \,as not aware till the summons were received in o.s No.293 of 2019 is only a lame excuse

¶220

A litigant knocking the doors ofjustice is expected to be fair and frank in his pleadings. Should disclose all rclevant facts which constitute cause of action on the issue raiscd and relief sought and leave it to the Court to decide. Should not mislead the Court or sllppress true facts deliberately to gain undue advantage. Burhen is healy on the litigant who seeks equity/ discretionary juriddiction of the Court. Litigant cannot play^.hide and seek,,^,pick

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and choose'the facts he likes to disclose and^{to suppress/keep} back/conceal other lacts which are^{germane to pleaurged in the} case.

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e 38. It is apt to note the view expressed^{by Honble Sup} Court in K.D.Sharma Vs Steel^{Authority of India Limitedrs} and I

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Dalip Singh Vs State of Uttar Pradeshle^.

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38.1. In paragraphs 36, 37 and 39^{of K.D.Sharma, the SuDreme} 'l Court affirmed the view of the^{Kings Benchof UnitedKingdom} tn I R Vs Kingston Incone Tax Commissioner,ⁱⁿ the context of

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prerogative u'rit. They rcad,

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36....... If the appllcant^{makesafalse statementor6upPresaes} mat€rial fact or attempts^{tomislead thecourt,thc court may} distniss the action on that^gtound alone^{and maylefuse toenter} lnto the m€rits of the case by^stating, "we^{ulllnot llstento} votr a'ppltcatio^ beca]u,se oJ uhat^{gou haoedone.' The rulc has becn} cvolvcd in thc larger public rn(ercst^{Lo dcter unscrupulorls litigantslrom} abusrng thc proccss ol court^b-v dccciving^il.

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37 ln li(,,rsin./ro,) h1.hnt'Ta-y Con,rts^{'iscouniRcacli.,g C..l obscr.!ed} llits^{pp 195-!)())}

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' .. whrrc,rn cx parlc applicatron has bcen madc to^{this Colrrtfora rule} nisr or orhr:r proccss, if the Court conies^{to theconclusionthetthe} amdavit in support of the apPlication^{westrot candid and dld not} leirly 6tate the facts, but stated them^{in such a weyas to misleed} the Court as to the true facts, the^{Coultought,[o! itsown} protection and to pr€v€nt aa abuse of its Proc€ss, to refuse^to procecd any further with the exaailation of the merits.^{Thisis a} power inhercn! in the Court, but onc which should only^tre used^il1cases which bring conviclion to the mind of lhe Court^{thatithasbeen} deceived. Belore coming to this conclusion^{a careful exa inalionwill be} made oi the iacls as they are and^{asLheyhavebcen staledIn the} applicanfs affidavit, and evcryrhing^{wiu be heardthatcanbe urgedlo} innu€nce thc vieu ol the Court when it reads the affidavit^{and knows the} true fac|s.Eut { the result oJ thts e-xamlnation^{dtdhearlngls to} leq.te ^o doubt tl,d.t the Cowrt hds^{been deceA)ed,the^ itwllt reJuse} to hedr dnythl^g l.|rther Jrcnt the opPllca^t l^ a Proceedl^g^lJ,hlch has only bee^ set la motlo^ bg meo'r.s^{oJ d,tsteadl'rg dlJlddtlt."}

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38.2. In Dalip Singh, the Supreme Court^{noted the trenf in}

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litigation that was sweeping across the^{countryeven by tfre}

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{ear

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Ir has noted,

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'*^{(2008) D scc,18l} '"^{(2olo)2 sccl14}

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'1. For many centuries lndian society cherished two basic values of Iile i.e. 'satya" (truth and "ahimsa,, (nonviolence), Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their dail}, Iife. Trutb constitut;d an integral part of the justice-delivery system rvhich was in vogue in the pre-lndepeidence era and the people used to feel proud to tell truth in the Courts irrespective of the consequcnces. Ho\,ever, post-lndependence period has seen dmstic changes in our value system. The lnaterialism has overshadowed rhe old ethos and the quest for personal gain has become so intense that those in\ olvecl in litigario:r (lo not hesitate to take shelter of faisehood, misrepreseniation al]d suppression of facts in the corlrt proceedings.

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In the last 40 years, a ne,qr creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. ln or(ler !o mect the challenee posed tJ\ thjs ic!.creed of litigants, the corlris have, from t rne to time, evolve(l ncw rulcs and it ls now well established that a Ittlgant, who attempt6 to pollute the stream ofJusdce or who touche6 the pure fountaln of wlth talnted hands, is not entitled to any rellef, interim or IInat.,,

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(emphasis suDplied)

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There is deliberate suppression of facts. Statements are made to mislead the Court to believe as if injustice is inflicted on him. The assertion of the appellant is not bona ftde. Appellant resorted to speak falsehood. He was neither fair nor frank. His hands are tainted, he abused the process of Court, for selfish ends. There is no iota of doubt that appellant deceived the Court. The actions o[ appel]ant amounts to polluting the stream oljustice. As held by the Hon'ble Supreme Court in Esha Bhattacharjee (supra) the conduct, beh:rviour and attitude relating to inaction / negligence by the appellant disentitle him to seek discretionary relief.

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Further, it is the appellants assertion that a substantive right has been created and vested in the appellant by virtue of the compromise and it cannot be nullified merely due to the delay in payment of court fee. To appreciate this submission, it is important to note here paragraph 72 of the Division Bench order of this Court in CCCAs dispoded of on 12.4.2OO4. While remanding

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t^(f .1 'a 46 ol2024

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the matter back to thc trial court, this Court spccifically^obse ed, tl'Le 'Therefore it goes to show that^{the said judgment uill haue} binding effect only on th.e^payment of^{the court} fee...'.^This conclusively points to the fact^that no^{right accrues to} Jthe appellant from the trial Court decree,^{substantiveor other*ise} l unless proper court^fee is Paid I 41. The issue of prejudice to^{other sideis also a crucialfac} to be looked into while considering the application^{to condonethe} delay. Though, a claim to acquire on 08.O3.1999 03.04.20O3 in O to prosecute the the suit schedul proceedings before the trial court to drag-on, did^notcoopefate I with the court lor early payment of court^{fee anddid not r} tppear rn the case when his^presence was required the^{most.Uven afterlthe} dismissal of the suit he took his own^{timeto prosecuteappeal} I I remedy. By his conduct, he of the 1"t respondent. Accepting thc plca ol appcllant^would reopening the healed woun litigation. For his letharry the opponent. More so, when the appellant^{to blame forthe} present state of affairs.

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-r5

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For all the albre stated reasons this application is liable to be dismissed. It is accordingly dismissed. Consequently, CCCA No. 66 'ot 2O2O stands dismissed. No costs. Miscellaneous

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App ications, il anv pending stand closed

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Sd/-K,SRINIVASA RAO bbfz0-zo-correcled ,lhe N-ote: Amended on beng appearanc€lrn paragraph No.1 mentroned vide order dared 17to3tzo22," of the judgment to reflect the same as per^ 'r'"?11A5rnf^l[tl rne cause t e rn rhe case (vide sheet attached) the Wp No. is corrected as 23132 ol 2Ol2 inslead o[ WP No 23123 of 2012 (r) rn paragraph (t)^.13.6 in seventh tine and fourteenth line corrected as Wo \o.11349 of 2014 insread otWp No11314 of 2014. (ii) in secono tine n patag.aph 21 .4 rhe penoo of pendency of su,t rs correcled 2OOa-20 t S insteail of 2OOO_ZO t O tn paragraph 21.4 (ii) the year of rnstitution of Wp is correcled as 2014 instead of 2012. This order suostrrutes the order da,ed 47n112022 passedintANo.l o{ 2022 and CCCA 66 of2O2Owhich was despatched on 21l01/2022

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Sd/.K.SRINIVASA RAO JOINT,EEGISTRAR //IRUE COPY// SECTION OFFICER

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The Xll Addilional Chref Judge, City Crvil Court, at Hyderabad.

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