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Parma Nand Vs. Kamla Sethi - Court Judgment

LegalCrystal Citation
SubjectCivil;Tenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 73 of 1974
Judge
Reported in1975RLR35
ActsCode of Civil Procedure (CPC), 1908 - Sections 148
AppellantParma Nand
RespondentKamla Sethi
Advocates: H.S. Dhir and; Brij Lal Dhawan, Advs
Cases ReferredJagat Ram v. Misra Kharaiti Ram and
Excerpt:
.....148 of code of civil procedure, 1908 - appeal filed for challenging rejection of condensation of delay in payment of court fees - court fees not paid by appellant under impression that plea for fixation of standard rent in reply to an eviction action did not require court fees - appellant found to have acted bonafidely and without any mala fide motive - delay in payment of court fees condoned. - - (6) sections 148 and 149 of the code of civil procedure arc (..) (7) it is well settled that the matter of court fees, whether of its non-payment, deficient payment or delay in payment, is not a matter between the parties but is a matter between the revenues on the one hand and the party, which had made default in the payment of court fees, on the other. it is equally well settled that..........the order mainly on the ground that the condensation of delay of four days in the payment of courts fees had been sought under the provisions of section 148 and 151 of the code of civil procedure and that the orders of the courts below were vitiated, in that, the courts below approached the entire question from the point of view of negligence and/or absence of due care and caution and, thereforee, applied to the proceedings the test laid down under section 5 of the limitation act it was further contended that the provisions of section 148 as indeed section 149 and 151 of the code of civil procedure were much wider in ambit and the proper approach would have been to see if in dealing with the matter of court fees, the appellant was acting in a bona fide manner in the sense in which.....
Judgment:

H.L. Anand, J.

(1) This second appeal under Section 39 of the Delhi Rent Control Act. 1958, hereinafter referred to as 'the Act' is directed against an order of the learned Rent Control Tribunal dismissing appeal under Section 38 of the Act against an order of the learned Rent Controller by which the appellant's plea for condensation of delay in payment of court fees was rejected.

(2) The respondent herein, the landlady, sought eviction of the appellant, the tenant. from the premises in dispute on various grounds and in the course of the reply filed to the application by the appellant, the appellant, while resisting the eviction action on various grounds, set up a plea about the fixation of the standard rent of the premises in dispute. It is not disputed that in view of the fact that the eviction action was not based on default of payment of rent, the plea of the appellant for fixation of standard rent was tantamount in law to an application for fixation of standard rent and, thereforee, required a court fees of Rs. 13 livable on such an application. The appellant, however, did not affix any court fees on the reply presumably under the impression that a plea for fixation of standard rent in reply to an eviction action did not require court fees. On a motion of the respondent by application of November 15, 1971 that in the absence of the requisite court fees, the plea for fixation of standard rent be rejected the learned Rent Controller made an order of February 21, 1972 to the effect that the appellant may pay the necessary court fees within ten days. The appellant, however, made default and paid court fees on the 14th day and made an application on May 27, 1972 seeking condensation of delay on the solitary ground that the clerk of the counsel of the appellant was under a wrong impression that the necessary court fees had to be paid within a fortnight. Evidence was led on behalf of the appellant in support of the plea for condensation but the plea did not find favor with the learned Rent Controller who rejected it on the ground that the clerk of the counsel of the appellant did not show 'due care and attention and as such it cannot be said that sufficient cause has been shown for condensation of delay.' On appeal to the learned Rent Control Tribunal, the order, as indeed the finding of the learned Controller that the appellant was negligent in the matter of payment of court fees and could have avoided 'this delay by exercise of due care and attention was confirmed. It is this order which is sought to be challenged by the present Second Appeal.

(3) Shri H.S. Dhir, who appears for the appellant assails the order mainly on the ground that the condensation of delay of four days in the payment of courts fees had been sought under the provisions of Section 148 and 151 of the Code of Civil Procedure and that the orders of the Courts below were vitiated, in that, the Courts below approached the entire question from the point of view of negligence and/or absence of due care and caution and, thereforee, applied to the proceedings the test laid down under Section 5 of the Limitation Act It was further contended that the provisions of section 148 as indeed Section 149 and 151 of the Code of Civil Procedure were much wider in ambit and the proper approach would have been to see if in dealing with the matter of court fees, the appellant was acting in a bona fide manner in the sense in which the term 'bona fide' is defined in the General Clauses Act and should have, thereforee, seen if the appellant was acting honestly and in that the approach the question whether the appellant acted negligently or not was wholly extraneous to the enquiry. It was further contended that the plea of the appellant for condensation had at no stage been opposed on the grounds that it was mala fide.

(4) On the other hand, Shri Dhawan who appears for the respondent vehemently supports the orders of the Tribunal as indeed the Controller on the ground that both of them returned a concurrent finding of fact that in dealing with the matter, the appellant acted negligently and contended that the Courts below have returned a concurrent finding of fact on the conduct of the appellant, it was not open to the appellant to re-agitate that matter or to seek assessment from this Court of the evidence led on behalf of the appellant with regard to due care and caution.

(5) After hearing learned counsels for the parties, it appears to me that the contention of the appellant must prevail.

(6) Sections 148 and 149 of the Code of Civil Procedure arc (...)

(7) It is well settled that the matter of court fees, whether of its non-payment, deficient payment or delay in payment, is not a matter between the parties but is a matter between the revenues on the one hand and the party, which had made default in the payment of court fees, on the other. It is equally well settled that the provisions of Sections 148 and 149 are much wider in their ambit and have to be liberally construed and any default or delay in the payment of court fees should ordinarily be condoned. Reference may be made in this connection to the observations of the Supreme Court in the case of Mahsanth Ram Dass v. Ganga Das. : [1961]3SCR763 and of this Court in the case of Custodian of Evacuee Property, New Delhi v. Ramashwar Dayal and others, : AIR1968Delhi183 . In the latter decision, it had been held that the discretion conferred on the Court by Section 149 is normally expected to be exercised in favor of the litigant except in cases of contumacy or positive malafides or reasons of a similar kind and that the question of bonafides has to be considered from the point of view of its definition as contained in the General Clauses Act and not as contained in the Limitation Act so that a thing should be presumed to be done bonafide if it is done honestly, .whether it is done negligently or not, for the purpose of judging whether discretion under Section 149 should or should not be exercised in favor of the litigant. The aforesaid decision of this Court was based on an earlier decision of the Full Bench of the Lahore (High Court in the case of Jagat Ram v. Misra Kharaiti Ram and another Air 1938 Lahore 361, in which it had been pointed out that the discretion conferred on the Court by Section 149 was normally expected to be exercised in favor of the litigant except in cases of contumacy or positive malafide or reasons of a similar kind and that the question of bonafides in this connection had to be considered in the sense that word is used in the General Clauses Act and not as used in the Limitation Act. The same principle would apply in the administration of Section 148 of the Code of Civil Procedure.

(8) It is thus clear that when confronted with the plea that the delay of four days in the payment of court fees should or should not be condoned, the proper approach of the Courts below ought to have been to put themselves to an enquiry, if in dealing with the matter the appellant was acting bonafide, that is, honestly and without any malafide motive or whether he was acting contumaciously, in that, it persisted in non-payment of the court fees in spite of a number of opportunities having been granted for the purpose. It was not disputed before me that the plea for condensation was at no stage resisted on the ground of malafide. It was irrelevant, in that view of the matter, for the Courts below to embark upon an enquiry if in dealing with the matter, the appellant or bids agent or his counsel or counsel's agent acted diligently or negligently. This wrong approach to the problem on the part of the Courts below has clearly vitiated both the orders and the same must, thereforee, be set aside.

(9) Shri Dhawan sought to distinguish the aforesaid cases on their peculiar facts but I do not see any such distinction and it appears to me that the principle laid down in those decisions is quite clear and would apply with equal force to the facts and circumstances of the present case. Appeal allowed.


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