/2023 INSC 0064/ Pa ge 1 of 17 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO…………………OF 202 3 ARISING OUT OF S LP (C) No.15793 OF 2019 AJAY DABRA Appellant(s) V ersus PYARE RAM & ORS. …Respondent( s) WITH CIVIL A PPEAL NO…………………OF 2 02 3 ARISING OUT OF S LP (C) No.15848 OF 2019 AJAY DABRA Appellant(s) Versus SUNDER SINGH & ANR. …Respondent(s) J U D G M E N T SUDHANSHU DHULIA, J. Leave granted. 2. Both t he se Appe als before this Cou rt are by the pla intiff who had fi led a suit for spe cif ic 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 t he Plaintiff/Appellant was not a party to the contra ct of which a Pa ge 2 of 17 spec ific performance was soug ht. The contr act was executed bet ween the defendant and a company called M/s Himal ayan S ki Vi llag e Pvt. Ltd. which was for sale of an ‘agricultural la nd ’ in Himacha l Prades h. There were two plots of land for which two different “ag reements of sale ” were execu ted , and h ence two civil suits were filed . 3. In b oth the above appeals , there is a common challenge aga inst order dated 17.12.20 18 passed by the Sin gle Judge of the High C ourt o f Him achal Pradesh in CMP (M) No.75 of 2018 & CM P (M) No.76 of 20 18 . The impugned ord er dismisse s the delay condonation applications fil ed under S ect ion 5 of the Limitation Act, 1963 , declining to condon e a delay of 254 d ays , because the reasons assi gned for the co nd onation were not sufficient reasons for condo nation o f the d elay . The Appe llant herein had earlier filed two suits (bearing nos. 28 /2012 & 29 /2012 ), fo r specific performance which were dismissed by the District Judge , Kullu vide order dat ed 30.12.2016 . 4. According to the Appellant the del ay ought to have been condoned and his appeal shou ld have been heard on it s merits. 5. W hat we have here is a pure civil matter. An appeal has to be fil ed within the stipulat ed period , presc ribed unde r the law. Pa ge 3 of 17 Bel ated appeals can only be condoned , when sufficient reaso n is show n 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 pedan tic in their approach while condoning the delay , and explan ation of each day ’s delay should not b e taken literally , but the fact remain s that there must be a reasonable explanation for the delay . In the present case, th is delay has n ot been explained to the satisfaction of the court . The only rea son assigned by th e appellant for t he de lay of 254 day s in filing the First Appeal was th at he was not having sufficient funds to pay the court fee ! This was not fou nd to be a sufficient rea son for the condonation of delay as the app ellant wa s an affluent businessman and a hotelier. In any case, even it is pres ume d for the sa ke of argument that the appellant was short of funds , at the relevant point of time and was not able to pay court fee , nothin g b ar red him from filing the appeal as there is p rovi sion under the law for fi ling a def ective appeal , i.e., an appe al w hich is defi cient as far as court fee is concerned, provided the court fee is paid within the time given by the Court. We would refer to Se ction 149 of Civil Procedure Code , 1908 whi ch reads as under : - Pa ge 4 of 17 “Section 14 9: Power to make up deficiency of Cour t Fe es. - Where t he whole or any part of any fee prescribed for any document by the law for the time being in force relating to court fee s h as not been paid, the Court may, in its dis cretion, at any stage, allow the per son, by whom such fee is payable, to p ay 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 , s hall have the same force and effect as if s uch fee had been paid in the first i nstance.” It als o nee ds to be emphasi zed that thi s Court as well as various High Courts , have held that Section 149 CPC acts as an exception, or even a provi so to Section 4 of Court Fees Ac t 1870 1. In terms of Section 4, an appeal cannot be fil ed before a High Court witho ut court fee , if the same is prescribe d. But this provision has to be read along with Section 149 of CPC which we have referred above. A short background to the inco rpor ation of Section 149 in CPC would explain this aspect. 1 Section 4. - Fees on docu ments f iled, etc., in High Court s in their E xtraordinary Jurisdic tion. —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 receiv ed or furnis he d b y, any of the said H igh Courts i n any case coming bef ore such Court in the exercise of its extraordinary original civil jurisdiction; or in the exercise of its extraordinary original criminal jurisdiction; In their appe llate jurisdiction. —or in the ex ercis e of its jurisdictio n as regards appeals from the 1[j udgments (other than judgments passed in the exercise of the ordinary original civil jurisdiction of the Court) or one] or more Judges of the said Court, or of a Divi sion Court; —or in the exe rcise o f its jurisdiction as reg ards appeals from the 2[judgments (other than judgments passed in the exercise of the ordinary original civil jurisdiction of the Court) or one] or more Judges of the said Court, or of a Division Cou rt;" or in the exerc ise o f its j urisd iction as regards ap pe als from t he Courts subject to its 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 docume nt there be paid a f ee of an amo un t n ot less than that in dicated by e ither of the said Sch edules as the proper fee for such document. Pa ge 5 of 17 6. The provi sion as given und er Section 4 of the C ourt 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: - “I f a memorandum of appeal or applicatio n 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 pa rt of the appe llant or applican t as to the amount of the requisite st amps, the memorandum of appeal or application shall have the same effect, and be as valid as if it had been properly stamped: Provided that such appeal or application shall be rejected u nless the appe llant or applican t supplies the requis ite s tamp within a reasonable time after the discovery of the mistake to be fixed by the court.” 7. The above provision was later enacted , alb eit in a differently worded form in the Code of Civil Procedure of 1 908 , w hich is present Section 149 . In M annan Lal v. Mst. Chh otaka Bibi & Ors. 2 this Court while dealing with Section 149 of CPC and Section 4 of the Court Fees Act , referred to the histor y of amendment , as we have stated above , and had this to say in its para 1 2 and 13 of the judgment: - 2 (1970) 1 SCC 769 Pa ge 6 of 17 “12. The ab ove s ection there fore mitigates the rigour of Section 4 of the Court Fees Act and it is for the cou rt in its discretion to allow a person who ha s filed a memorandum of appeal with defici ent court fee to make good the d eficiency and the making good of such defic iency cures the defect in the memorandum not from the time when it is made but from the time w hen it was first presented in court. 13. In o ur view in considering the question as to the maintainab ility of an appeal when the court f ee paid was insuffici ent t o start with but the deficiency is made good later on, the provisions of the Court Fees Act an d the Code of Civil Procedure have to be read together to form a harmonious whole and no ef fort shoul d be made to give precedence to pro visions in one over t hose of the other unless the express words of a statute clearly override those of the other. ” 8. In Mannan Lal (supra) , this aspect was dealt in rather detail , where the Court refe rred to several de cisions of differe nt High Courts on interpretation of Se ction 149 CPC and Section 4 of Court Fees Act. It particular ly referred to the decision of the Allahabad High Court which is S. Wajid Ali v. Mt. Isar Bano Urf Isar Fatima & Ors. 3 whe rein it was held t hat a court has to exercise its dis cretion for allowing a def iciency of c ourt fee s to be made good but once it was done, a document wa s to be deemed to have been presented and received on the date whe n it was originally filed , and not on the date when the defects were cured . 3 AIR 1951 All 64 Pa ge 7 of 17 Therefore this Court in Mannan Lal (supra ) further st ated as under : - “21. The words used in that judgment are no doubt of wide import. But however that may be in the case before us there can be no difficulty in holding that an appea l was pres ented in t erms of Order 41 Rule 1 of the Code in asmuc h as all tha t this provision of law requires for an appeal to be preferred is the presentation in the form of a memorandum as therein presc ribed. If the court fees paid thereon be insuf ficient it does no t cease to be a memorandum of appeal although th e cou rt may rejec t 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 t he defect takes place on the date of the makin g good o f the defi ciency, th e defect must be treated as remedied f rom the date of i ts 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 reaso ning app ears to be that the memorandum of app eal had no effect bef ore the making go od 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. A ct. The learned Chief Justice of the Allahabad High Co urt expres sed the op inion that a memo randum of appeal barr ed by time stood on a footing different from the one in which there was deficiency in the court fee paid. According to him under Section 3 of th e Limitation Act it is an appeal that is dismi ssed and not a mem orandum of appeal. When the refore Section 4 of t he Co urt Fees Act deals with a memorandum of appeal the consideration of the laws of limitation bears no analogy to a deficiency in court -fees. With due respect we are not impressed by the Pa ge 8 of 17 above rea soning. As already n oted, although th ere is no definition of th e word “appe al” in the Code of Civil Pro cedure, it can only be instituted by filing a memorandum of appeal. The filing of a memorandum of a ppeal therefore brings an appeal into existenc e; if th e memorand um is defi cient in court -fe e, it may be rejected and if rejected, the appeal comes to an end. But if it is not rejected and time is given to the appellant to make up the deficiency and this op portunity is availed of, Section 149 of the Co de expre ssly provi des that t he document is to have validity with retros pective effe ct as if the deficiency had been made good in the first instance. By reason of the deeming provision in Section 149 the memoran dum of appeal is to have full force and effect and the appeal ha s to be tr eated as one pend ing from the date whe n it was before t he Stamp Reporter and the de ficiency noted therein. ” This position has been reiterated by this Court in several of its later d ecisions such as P.K. Palanisamy v. N. Arumugh am & Anr .4, Ganapa thy Hegde v. Krishnakudva & Anr. 5 and K.C. Skari a v. Govt. of Sta te of Kerala & Anr. 6 9. We do no t have a case at hand where the appellant is not capable of purchasing the court fee . He did p ay the court fee ul timately, though belatedly . But then, under the facts a nd circumstances of the case, the reas ons a ssigned for the delay in filing the appeal cannot be a valid reason for condon ation of the 4 (2009) 9 SCC 173 5 (2005) 13 SCC 539 6 (2006) 2 SCC 285 Pa ge 9 of 17 delay , since the appellant could have filed the appea l deficient in court fee under the provisions of law, referred above. Therefore, we fi nd that the High Cour t was right in dismissi ng Section 5 application of the appellant as insufficient funds could not have been a suffici ent ground for condonation of dela y, u nder the facts and circumstance of t he case. It would have been entirely a differ ent matter had the ap pellant fil ed an appeal in terms of Section 149 CPC and thereafter removed the defects by paying deficit court fees. This has evidently not bee n done. 10 . This Court , whi le emphasi zing the scope of Sectio n 5 of th e Limitation Act , in the case of Mahant B ikram Das s Chela vers us Financial Commissioner , Revenue, Punjab , Chandigarh And Others 7 has held : “21. Section 5 of the Limitation Act is a h ard tas k-ma ster and judicial interpretation ha s encase d it withi n a narrow c ompass. A large me asure of case -law h as grown around Secti on 5, its highlights being that one ou ght not easily to take away a right which has accrued to a party by lapse of time a nd that the refore a litigant who is not vigila nt about his right s must expla in every day ’s de lay. These and simil ar consid erations whi ch influence the deci sion o f Section 5 applications are out of place in cases where the appeal its elf is preferred wi thin the pe riod of limitation but ther e is an irre gularity in 7 (197 7) 4 SCC 69 Pa ge 10 of 17 presen ting it. Thu s, in the instant case , there was no o ccasion t o invoke the provisions of Section 5 , Limitation Act, or of Rule 4, Chapter I of the High Cou rt Rules. If the Division Bench were awa re that Rul e 3 of Chapter 2 -C is direct ory , it wou ld have treate d the appeal as having been f iled within the p erio d of limi tation, rend ering it ina pposite to consider whether the delay caused in filing the appeal could be condoned. ” Th is Court in the cas e of Ba sawa raj and Another versus Spe cial Land Acquisition Offic er 8 wh ile re jecting an applic ation f or condonation of delay for lack of sufficient cause has conclude d in Pa ra graph 15 as follows : “15. The law on the issue can be summarised to the effect th at wher e a case has been presented in the court beyond limitatio n, the appli cant has to expla in the court as to w hat was th e “sufficien t cause” which means an adequa te and enough reason which prev ented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circum stance s of the case, or found to have not acted diligently or remained inactive , there cannot be a just ified ground to condone the delay. No court could be justifi ed in c on do ning suc h an inordinate delay by imposing any conditi on wha tsoeve r. The applicatio n is to be decided o nly within the paramet ers laid down by this Court in regard to the 8 (2013 ) 14 SCC 81 Pa ge 11 of 17 condonation of d elay. In case there was no sufficient cause to prevent a lit igant t o ap proach t he court on time condoning the delay without any ju stific ation, putting an y cond ition whatsoev er, amount s to passing an order in violation of the statuto ry prov isions and it tan tamounts to showing utter disregard to the legislature.” Therefore, we are of the considered opinion that th e High Court did not comm it any mistake in dismi ssing the delay condonation application of the present appellant. 11. This apart , even on merits , we do not find it a case which cal ls for our interference . The facts of the case are that one , M/s. Himala yan Ski Village Pv t. Ltd. had en tered into a n ‘Agreement for Sale ’ with an agricult uri st /land owne r of Himach al Pr adesh , for sale of his agricultura l land . No w the ad mi tted posi tion in the State of Himachal Pr adesh is that under Section 118 of t he H imachal Pradesh Ten ancy and Land Re forms Act, 1972 (for sho rt ‘1972 A ct ’), only an agr iculturist , whic h is defined u nder Section 2 (2) of th e 1972 Act , can purchase land in Hi machal Prad esh , which would mean a landowner who personally cultivates h is lan d in Himacha l Pradesh. If a non -agric ul tu ri st has to pur chase a land , it can only be done with the prio r perm ission of the State Govern me nt under Section 118 of the Pa ge 12 of 17 Act . M/ s. Himalayan Ski Village was a private company , w hich was ad mit tedly n ot an ‘agric ul turist ’ and theref ore was not capable u nder the law to p urcha se the land in H imachal 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 ad mitted position is that thi s approval was no t given to the defend ant by the State Government and then the defe ndant assigned his right to the plaintiff who there after filed the suit for spe cific performance . Section 118 of the H imac hal Pradesh Tenancy and Land Reforms Act, 1972 rea ds as under : “1[1 18. Transfer of Land to non - agricult urist barred: - (1 ) Notwithstanding anything to the contrary contained in any law, contr act , agreement, custom or us age for the time being inforce bu t sa ve as other wise pro vi de d in t his Chapter , no trans fer of land (incl uding transf er by a d ecree of a civi l court or f or recovery of arrears of land revenue) by way of sale deed, gift, will, e xc ha nge, lease, mortgage with poss ession, creation of a tenancy or in any othe r manner sha ll be valid in favo ur of a person, who is no t an agricul tur ist.] 2[Expl anation . For the purpose of this sub -section the expr ession “Transfer of land ” shall not include . Pa ge 13 of 17 i. Transfer by way of in herita nce ; ii. Transfer by way of gift made o r will execu ted, in favo ur of any or all le gal heir s of the donor or the testato r, as the case may be; iii. Transfer by way of lease of land or building in a municipal area; but shall include a) a ben ami transaction in which land is transferred to an agriculturi st for a co nsideration paid o r provided by a non - agriculturist; and b) an auth ori zation made by the ow ner by way of special or general power of atto rney or by an agreement with the intention to pu t a non -agricult urist in possession of the land and allow h im to de al with the lan d in t he like manne r as if he is a real owne r of th at la nd. ] (2) N othin g in sub -section (1) sh all be deemed to prohibit th e transfer of land by any person in favour or, (a) … . (b) …. (c) …. (d )…. (e )…. (f) …. (g) …. (h) a non agricultur ist with th e per mission of th e State Gover nment fo r the purposes th at may be pr esc ribed .” Pa ge 14 of 17 12. The admitted position is t hat M/s Himala yan Ski Vi llage Pvt. Ltd. failed to get th e permission from the State Government under Section 118 of the 1972 Act . 13. What w as done instead w as , tha t when the purchase r failed to get t he req uisite perm issi on fr om the State Government under Sec tion 118 of the 19 72 A ct , it assi gned its rights to the Plaintiff (i.e., the present Appellant be fore this Co ur t), and the Plaintiff in turn filed a suit for Specific Performance against the defend ants i.e., Surend er S ingh -Defendant No . 1 who is Respondent No. 1 herein . It was only later that he also impleaded M/s Himalay an Ski Village Pvt. Ltd. - Defen dant No. 2 wh o is Respondent No. 2 herein. 14. The Tria l C ourt dismissed the suit s of the pl aintif f prim arily on grou nd s tha t getting permission from the State Govern ment was an essential condition , which had not been fulfilled by hi m as p er Section 118 of the 1972 Act and und er the facts and circumstances of the case, the assig nment in terms o f the Pl ain tiff wa s not prope r and va lid . 15. All othe r condi tions which have been stipulated in the Agreem ent to Sell depended on th is primary condition i.e., permission from the State Government , under Section 1 18 of the Pa ge 15 of 17 1972 A ct . There is no s pecific c lause in th e “Agre em ent to Se ll”, which say s that in ca se the purch aser fail s to obtain re quire d permission from the State Government, i t could assign its ri ght s to an ag ri cul turi st of Hi machal Pradesh and the seller therefore wou ld not have any o bjection in execu tin g the Sale deed in favo ur of suc h an assigne e. 16. In the presen t case the assignment is not valid as the re was no prior consent o r approval of the seller bef ore the assignmen t. In the absence of such a condition and i n lieu of the fac t that be for e a ss ign m ent of its rights to t he plaint iff /Appellan t herein no permissio n of the seller was obtained , there was no question of granting a dec ree of Specific Perf orman ce in fa vour of t he plaintiff . Consequently, this is not a case whi ch calls for o ur in te rfere nce. 17. W e may her e add that t he whole p urpose of S ection 118 of the 1972 Act is to prot ect agriculturists with small holdings. Land in Himachal Pr adesh ca nnot b e transferred to a no n- agr iculturist , and t his is with a purpose. The purpo se is to sa ve th e small agr icultural holding of poor persons and also to check the rampant convers ion of agricultural land for non -agricultural purposes. A person wh o is not an ag riculturi st can only purchase land in Hi mac hal Pradesh with the permission of th e Pa ge 16 of 17 Sta te Gove rnment. Th e Governm en t is expec ted to examine from a case to cas e basis whether such permiss ion can be given or not. In the present case, it thou ght it best , not t o grant such a permission. Howeve r, the pu rpose of the transfer remains th e sam e, w hic h is a non -agric ultural activity. By merely assigning rig hts to an agr iculturist, who will be u si ng the land for a purpose other than agriculture , would defeat the purpose of th is Act . In the case of Ashok Madan and Another versus State of H.P . and O th er 9 th e Himachal Prad es h High Co urt had laid down the fo llo wing important observation wi th respect to Section 118 of the 1972 Act : "12. The law is, therefore, clear that mer ely the nomenclature or the title of the document sill not d ete rmine what are th e rig hts c reated by the d ocumen t. Th e intention of the pa rti es must be gathered on a combined reading of all the d ocu ments and the b ehaviour of the parties in the manner in wh ic h they treated the document. Secti on 118 was intr oduced w ith a view to restri ct th e tra nsfer of land i n favo ur of non - agriculturi st exc ept to specified persons as contained in the Section itse lf. The purpose behind it was that the economica lly advant ageous class does not take undue advan tage of the small agric ulturi sts by purchas in g t heir small holdings. The pro vis ion was int roduced as rich persons who were not agriculturists were p urchasing 9 2011 SCC OnLi ne HP 3 88 5 Pa ge 17 of 17 ag ricultural land in Himachal Pr adesh at high price exploiti ng the local Himachali pe op le. Howev er, the section itself provided tha t in spe ci al cases permission can be gr ant ed for transfer of land to non -agriculturist. The constitutional validity of this Se ction was uphe ld in Sm t. Sudarshana Devi v. Union of India , ILR 1978 HP 355. ” 19. Under the f acts and circumstances of the case w e do no t fin d any scope for inte rferen ce in the matter. Consequen tly , both the appeals stand dismis sed. … ....… ...………….…………… …. J. (Pamidighanta m Sri Narasimha ) ... ……… ………… …. J. (Sudhan shu Dhulia ) New Delhi , January 31, 202 3.