IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN REGULAR SECOND APPEAL No.223/2013 (RES) BETWEEN:
Venkatappa, S/o late Chikkappa Aged 60 years, R/a Natuvarahalli Masthi Hobli, Malur Taluk 563 130 Kolar District. ... Appellant (By Sri S.Visweswaraiah, Advocate) AND:
1. Sri Muniyappa, S/o late Thimmaiah, Aged about 48 years, R/a A.K.Colony, Masthi village, Malur Taluk 563 130 2. Smt.Muniyamma W/o late Muniyappa, Aged about 56 years, 3. Sri Srinivasa, S/o late Muniyappa, Aged about 40 years, No.2 and 3 are residing at Masthi village, Malur Taluk 563 130 Kolar District. ... Respondents (By Sri Rasheed Khan, Advocate for R.2 and R.3) This Regular Second Appeal is filed under Section 100 of CPC., against the judgment and decree dated 29.11.2012 passed in RA No.281/2012 on the file of Senior Civil Judge and JMFC, Malur dismissing the appeal filed against the judgment and decree dated 10.09.2004 passed in O.S.No.65/2000 on the file of Principal Civil Judge (Jr. Dn), Malur.
This Regular Second Appeal coming on for hearing, this day, the Court delivered the following:
JUDGMENT This appeal is filed by the appellant-plaintiff being aggrieved by the judgment and decree dated 29.11.2012 passed by the Senior Civil Judge, Malur, in R.A.No.281/2012 (hereinafter referred to as First Appellate Court) dismissing the appeal on the ground of delay in filing the appeal and the Principal Civil Judge (Junior Division), Malur (herein after referred to as Trial Court) by judgment dated 10.09.2004 has rejected the plaint of the plaintiff in O.S.No.65/2000. .
2. Heard the arguments of the learned counsel for the appellant.
3. The ranks of the parties before the Trial Court is retained for convenience.
4. The brief facts of the case is that the plaintiff filed the suit for specific performance of contract directing the defendant to accept the balance sale consideration of Rs.2,000/- and execute the sale deed. It is alleged that there was negotiation between the plaintiff and the defendant to purchase the property measuring 9.12 guntas of land at Masthi village, Malur Taluk for Rs.10,000/-. Accordingly, Rs.8,000/- has been paid to the defendant and Rs.2,000/- was payable before the Sub-Registrar. A draft sale deed was also prepared by the plaintiff which was signed by the defendant and the document was placed before the Sub- Registrar for registration. At that time, the defendant found missing and sped away without executing the sale deed. Therefore the suit. It is the further case of the plaintiff that while filing the suit, the subject matter of the suit is valued at Rs.2,000/- and therefore he has calculated the Court fee at Rs.50/-. During the course of evidence, the trial Court directed the appellant plaintiff to pay the remaining Court fee of Rs.200/- as per Section 40 of the Karnataka Court Fees and Suits Valuation Act. Though sufficient time had been granted, the plaintiff has failed to pay the deficit Court fee as ordered by the trial Court. Therefore, the trial Court rejected the plaint under Order VII Rule 11(c) of CPC. Subsequently the plaintiff filed an application under Section 149 of CPC before the trial Court along with medical certificates seeking extension of time for paying the Court fee. The trial Court dismissed the application.
5. Assailing the said dismissal of the application and rejection of plaint, the plaintiff filed Regular Appeal No.28/2012 before Senior Civil Judge, Malur. Along with the appeal, the appellant-plaintiff also filed IA-I under Section 5 of the Limitation Act for condoning the delay in filing the appeal. The First Appellate Court also permitted the plaintiff to lead evidence on the application for condonation of delay. The plaintiff examined himself as PW.1 and got marked Exhs.P1 to P4. The First Appellate Court not being satisfied with the delay of 6 years 5 months 21 days in filing the appeal, dismissed IA-I under Section 5 of the Limitation Act and consequently dismissed the appeal. Hence, the plaintiff filed the second appeal before this Court.
6. This Court vide order dated 26.09.2013 admitted the appeal on the following substantial questions of law:
i) Whether the appellate Court is justified in dismissing the IA for delay and consequently dismissing the appeal on merit without proper appreciation of evidence and documents produced by the appellant in support of IA for delay ?
ii) Whether the trial Court is justified in rejecting the plaint under Order VII Rule 11(c), CPC for nonpayment of deficit Court fee without granting reasonable time to the appellant to pay the same ?
iii) Whether the trial Court is justified in rejecting the application filed by the appellant for extension of time under Section 149 of CPC to pay the Court fee ?
7. Learned counsel for the appellant strenuously contended that the first appellate Court committed an error in dismissing the appeal without considering the merits of the case. In view of dismissal of the appeal, the valuable right of the plaintiff has been affected since he has invested huge sum of money for purchasing the property. Therefore, the First appellate Court ought to have allowed the appeal. Learned counsel further contended that trial Court ought not to have rejected the plaint for non-payment of Court fee, but should have extended the time for payment of Court fee by allowing the application filed under Section 149 of CPC. Therefore, he prays for allowing of the appeal.
8. Before answering the first substantial question of law, I would like to consider the second substantial Question of law. On considering the available record, it is the admitted fact that the plaintiff filed the suit against the defendant for specific performance of the contract to direct the defendant to execute the sale deed. Therefore, it is alleged that on 14.05.1997 the plaintiff went to the office of Sub-Registrar along with draft sale deed, but the defendant did not turn up. The sale consideration has been mentioned by the plaintiff as Rs.10,000/- and Rs.8,000/- has been paid towards the advance amount. The balance sale consideration of Rs.2,000/- requires to be paid. However, he has calculated the Court fee only on Rs.2,000/- and paid only Rs.50/- which is not correct.
9. The contention of the learned counsel for the plaintiff is that the trial Court ought to have granted time for the plaintiff to pay the Court fee. But, perusal of the order sheet discloses that the trial Court directed the plaintiff to file fresh valuation slip and Court fee in July 2004 and adjourned the case to 13.08.2004. Subsequently one more opportunity has been granted till 10.09.2004. But, on 10.09.2004 plaintiff remained absent and his learned counsel sought for short time which was rejected by passing an order. Therefore, the trial Court rejected the plaint under Order VII Rule 11(c) of CPC. It is relevant to extract the definition clause of Order VII Rule 11(c) of CPC which reads as hereunder:
“11. Rejection of plaint.-
(a) XXXXXX (b) XXXXXX (c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;”
10. Admittedly, the trial Court granted time to plaintiff to pay the Court fee on three times till 10.09.2004. Inspite of granting sufficient opportunity, the plaintiff has failed to pay the Court fee. Accordingly, the plaint came to be rejected by the Trial Court. Absolutely there is no illegality or error committed by the trial Court in rejecting the plaint for non payment of Court fee within the reasonable time fixed by the trial Court as per Order VII Rule 11(c) of CPC. Accordingly, I answer the substantial Question of law No.2 against the appellant.
11. As regards third Substantial Question of Law: The learned counsel for the appellant contended that he has filed application under Section 149 of CPC seeking extension of time for payment of Court fee. Admittedly, the application came to be filed on 29.09.2004. The trial Court rejected the plaint on 10.9.2004. After disposal of the suit rejecting the plaint, the question of filing of application for allowing the plaintiff to pay the Court fee does not arise. Though the Court has got power to extend time to pay the Court fee, but once the suit is disposed of, trial Court becomes functus-officio to pass any orders on the application after disposal of the suit. Therefore, the trial Court is justified in rejecting the application filed under Section 149 of CPC and hence answered the third substantial question of law as against the appellant.
12. Now let me take the first substantial question of law:
The contention of the learned counsel for the appellant is that the First Appellate Court ought to have condoned the delay; heard the arguments on merit and ought to have disposed of appeal. In support of his contention, he relies upon the judgment of this Court in the case of Smt.Tulasamma K and others vs. Jassaram and others (2012(1) Kar.L.J. 690) wherein this Court has held that the lower Appellate Court could have given one more opportunity to the plaintiff to pay the Court fee and the matter has been remitted to the trial Court for reconsideration. Further he relies upon another judgment of this Court in the case of Rangappa and others vs. Nagappa and others (2016(2) KCCR 1689) where this Court condoned the delay of 380 days. There is no second thought for the principles laid down by this Court in the above said appeals. In the instant case, the appellant has filed the appeal before the appellate Court after 6 years 5 months and 21 days on the ground of illhealth. He has produced the medical certificates viz., Exhs.P1 to P4.
13. Learned counsel for the plaintiff contended that he was suffering from illhealth and admitted in the hospital from 04.09.2004 to 11.09.2004. The case sheet Ex.P4 also shows that he was admitted in the hospital from 04.09.2004 to 11.09.2004. It further discloses that the plaintiff was discharged against the advice of the doctor. The First appellate Court was of the opinion that the delay is not properly explained. Admittedly, there is no document produced before the First Appellate Court to show that he was under treatment continuously for more than six years. Even otherwise, the appellant-plaintiff filed an application under Section 149 of CPC before the trial Court on 29.09.2004 itself which came to be rejected by the trial Court on the same day. Such being the case, nothing prevented him to file the appeal before the Appellate Court immediately. The delay of 6 years 5 months 21 days is not at all explained by the plaintiff. The documents Exh.P1 to P4 produced by the plaintiff are not sufficient to explain the inordinate delay. In the case cited supra, this Court has condoned the delay of 380 days only whereas in this case, there is delay of 6 years 5 months and 21 days. Exhs.P1 to P4 shows hospitalization for only 7 days and thereafter he has appeared before the trial Court by filing an application which was dismissed on the same day and the same was well within his knowledge. Since there is no proper explanation, this Court cannot condone the inordinate delay of 6 years 5 months and 21 days.
14. Therefore, the first appellate Court after considering the documents Exh.P1 to P4 and also the oral evidence of the plaintiff, has rightly rejected the application. I do not find any ground to interfere with the well considered order passed by the First Appellate Court to condone the delay of 6 years 5 months and 21 days. Accordingly, I answer the substantial question of law No.1 also against the appellant.
15. Accordingly, the appeal is dismissed.
Sd/- JUDGE akc/-