Kuldip Chand Sood, J.
1. This application under Section 5 of the Limitation Act has been filed by the Insurance Company through its Chairman and Divisional Manager, Shimla for condonation of delay in filing the appeal.
2. The petitioner, it appears, suffered a decree of Rs. 2,50,000/- in a Civil Suit No. 9 of 1995 filed by the respondent for damages vide judgment and decree of learned District Judge, Bilaspur dated September 6,1999. Dissatisfied, the applicants-defendants filed regular second appeal in this Court on December 18,1999.
3. The Registry, it appears, raised number of objections including that appeal is not stamped at all. The appeal was returned for removal of the objections raised by the Registry within a week. The appeal was refiled on March 7,2000 along with an application under Section 5 of the Limitation Act for condonation of delay of three days in filing the appeal which, according to the applicants, occurred due to the procedural delay in the office of the applicants. However, once again, Court-fee was not affixed on the Memorandum of Appeal. The appeal was once again returned for removal of the objections including that of non-payment of any Court-fee on the Memorandum of Appeal. The appeal was thereafter refiled on April 20, 2000 on which date, necessary Court-fee was added by the appellant/applicant.
4. In the application, it is pleaded by the Insurance Company that immediately after passing of the award, the certified copy was applied for on behalf of the Insurance Company on September 7,1999 which was attested on September 15,1999 and collected on the same day and the complete record of the case was sent to the Divisional Office at Mandi. As the Divisional Office at Mandi was not competent to file the appeal therefore, entire case file was sent to the Regional Office, Chandigarh for their opinion and recommendation to file appeal. After the receipt of the recommendation of the Regional Office at Chandigarh on December 15,1999, the appeal was filed on December 19,1999 and in the process, delay of three days occurred in filing the appeal.
5. The respondent resisting the application, in its reply dated May 21,2000, raised a contention that the appeal is not barred by merely three days but in fact is barred by 121 days. As the Memorandum of Appeal, when filed was not affixed with any Court-fee, the Court-fee was affixed much after the expiry of the period of limitation for appeal. This, according to the respondent, shows the negligence of the applicants in not filing the appeal within the period of limitation.
6. The applicants filed rejoinder which is dated July 15, 2000. In this sur-rejoinder, it is admitted that appeal is barred by 121 days. However, the applicants contend that the appeal was filed after three days of the expiry of limitation, but;.due to financial constraints as the claim ratio being higher during December, no Court-fee was affixed. From 8.1.2000 to 20.2.2000, the Hon'ble Court was closed due to winter vacations. In the last week of February, 2000, the matter was under objection. However, the amount of Court-fee could be made available in the 2nd week of April, 2000 as the same was to be requisitioned from the concerned Branch through Divisional Office, Mandi. Under these circumstances, and reasons beyond the control, the Court-fee was affixed on 20.4.2000.
It is prayed that the delay may be condoned in the interest of equity and fair play.
7. The respondent filed sur-rejoinder controverting the stand of the applicants that Court-fee was not affixed by the applicant Company due to financial constraints. According to the respondent:
The non-applicant made inquiries from the office of the appellants/applicants at Mandi and on inquiries, it is revealed that the closing balance in their Bank Account No. 1618 (Disbursement) at Punjab National Bank, Moti Bazar, Distt. Mandi in the month of December, 1999 was Rs. 7,88,681/-; January, 2000 Rs. 3,64,973/-; February, 2000 Rs. 3,8,512/-; and March, 2000, it was Rs. 1,31,950/-. Therefore, the applicants have filed a false affidavit and deserves to be punished for perjury punishable under Section 193,1.P.C. in accordance with law for filing false affidavit before this Hon'ble Court. Besides, the application/appeal deserves to be dismissed.
8. It is the further contention of the respondent that the applicants did not affix any Court-fee while filing the appeal on December 18,1999. The Registry raised several objections including that no Court-fee was affixed. The appeal was taken back by the learned Counsel for the applicants for removal of the objections on February 23, 2000. The Registry had granted one week's time to remove the objection, yet appeal was refiled on March 7,2000 without removing objections regarding the Court-fee. Even, it is pleaded, the applicants did not move any application for extension of time for affixing the Court-fees. The appeal was again taken back by the applicants on March 30, 2000 for removal of the objection regarding the Court-fees and the Court-fee was only affixed when appeal was refiled on April 20, 2000. The unexplained delay in affixing the Court-fees, it is contended is axiomatic and the applicants are not entitled to any indulgence of the Court for the condonation of delay in filing of the appeal.
9. We have heard Mr. Deepak Bhasin, learned Counsel for the applicants and Mr. Inder Singh, learned Counsel for the respondent at length and have also perused the record of the Registry.
10. Section 5 of the Limitation Act provides that an appeal or any other application, other than one under the provisions of Order 21 of the Code of Civil Procedure, may be admitted after the prescribed period if the appellant or the applicant, as the case may be, satisfies the Court that he has sufficient cause for not preferring the appeal or making application within such period. Section 5 of the Limitation Act may be reproduced for convenience:
5. Extension of prescribed period in certain cases--Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that the had sufficient cause for not preferring the appeal or making the application within such period.
11. It is not to be noticed that existence of sufficient cause for not filing the proceedings in time is a condition that must be satisfied before Court can exercise its jurisdiction in granting or refusing to grant extension of time. Now if this condition is not satisfied and no cause at all is shown or no explanation is given for filing the appeal beyond the period of limitation, then in such a situation, there is no question of exercising the discretion under Section 5 of the Act.
12. The applicants do not say a word in their application regarding nonavailability to funds for affixing the Court-fees. There is no whisper as to why not even a nominal Court-fees was affixed on the Memorandum of Appeal. It is only when the respondent pointed out that delay is not of merely 3 days but of 121 days, then in a rejoinder, the applicants took a plea that Court-fees could not be affixed because of some financial constraints in the month of December, 1999.
13. The applicants do not spell out in their rejoinder as to what precisely the 'financial constraints' were for which not even a nominal Court-fees was affixed on Memorandum of Appeal.
14. On the other hand, in his sur-rejoinder, the respondent has given the detail of the balance in the bank account of the Insurance Company of Mandi Region to which the present case pertains. The fact that the closing balance of the Regional Branch of the Insurance Company in their account with the Punjab National Bank at Mandi in December, 1999 was Rs. 7,88,681/-; in January Rs. 3,64,973/-; in February, 2000 Rs. 3,18,512/- and in March, 2000, Rs. 1,31,580/- is not disputed. The plea of the Insurance Company that the Court-fees could not be affixed because of financial constraints, in the circumstances, is not correct. Otherwise also, it is difficult to imagine that an Insurance Company did not have Rs. 4,700/- and odd amount required for the purchase of Court-fees with them when this appeal was filed. To believe applicant Insurance Company is to believe incredible.
15. Even if we assume that Insurance Company did not have the requisite funds to purchase the Court-fees in December, 1999, such Court-fees could have been purchased after the objections regarding the non-affixation of the Court-fees was raised by the Registry in January, 2000 or even thereafer when the appeal was again returned to the applicants on March 7,2000. The applicants made no effort till April 17,2000 to purchase the requisite Court-fees. The inaction on the part of the appellants clearly show not only gross negligence but also raises question mark on their bona fides.
16. We are satisfied that plea raised in the rejoinder by the applicants is an after-thought to cover up the negligence and inaction on the part of the applicants. The rejoinder does not disclose if any efforts were made to purchase the Court-fees during the months of January, February and March, 2000. We find that the plea raised in the rejoinder inherently lacks bona fide.
17. We are surprised that no application under Section 149 of the Code of Civil Procedure was ever made for the grant of time to make good the deficiency of the Court-fees. Had such an application been made, even after the objection by the Registry regarding the Court-fees, the Court, in its discretion, could have granted time to affix the requisite Court-fees.
18. We may notice that Section 4 of the H.P. Court Fees Act, 1966 forbids the Registry of the High Court to receive a Memorandum of Appeal unless proper Court-fees has been paid on such Memorandum of Appeal. Now, even to invoke the provision of Section 149 of the Code of Civil Procedure, the applicant must show that honest attempt was made to comply with the law i.e., the provisions of Section 4 of the Court Fees Act. If no attempt is made to affix the Court-fees, in such a situation, the assistance of Section 149 of the Code of Civil Procedure is not available to such an applicant. In this case, inspite of repeated objections raised by the Registry, no attempt was made to affix the requisite Court-fees. In fact, not even nominal Court-fee was affixed.
19. In Ram Sahay Ram Pandey v. Lakshmi Narain Singh AIR 1917 Patna 26 a decree was passed gainst the appellants for recovery of immovable property and mesne profits of Rs. 5,000/- and odd. The appeal was presented on the last date of limitation with a Court-fees of Rs. 10/-. It was contended that the practice of the Court was to receive the appeal and to allow the appellant time to make good the deficiency. Construing the provision of Section 4 of the Court Fees Act, 1870 and Section 149 of the Code of Civil Procedure, a Division Bench of the Patna High Court speaking through Chamier, C.J. held:.In my opinion, Section 149 should not be construed in such a way as to nullify the express provisions of Section 4, Court Fees Act. When the amount of the Court-fee payable is open to doubt or the amount of the fee cannot be ascertained by the Court till the record is received or it appears that the appellant has made an honest attempt to comply with the law, the Court may properly receive the appeal and allow time for deficiency, if any, to be made good. In the cases before us the appellants have deliberately and to suit their own convenience paid on their appeals insufficient Court-fees. In fact, they have paid only a small fraction of the fees which they admit are payable by them. In such cases the Court is not, in my opinion, bound to receive the appeal and give the appellants time to make good the deficiency. Assuming that the Court has power to receive these appeals and allow time for the deficiency to be made good I think that we should be exercising our discretion in an unreasonable manner if we were to do so.
(Emphasis supplied)
20. We respectfully agree with the statement of law made by the Division Bench.
21. In the present case, as noticed earlier, not even a one rupee Court-fee was paid or affixed inspite of repeated opportunities.
22. This apart, assuming the applicant Insurance Company did not have sufficient funds to pay the Court-fee, even then such a reason will not constitute sufficient cause.
23. In Mt. Amtul Qadir v. Muhammad Yusaf AIR 1919 Lahore 252 appeal was filed in the High Court without paying sufficient Court-fees on the Memorandum of Appeal. An objection was raised by the respondent that appeal was barred by the period of limitation. In that case, the appeal was against the decree for Rs. 600/- and Court-fee chargeable on the appeal was Rs. 45/-. However, a Court-fees stamp of Rs. 19.80 was only affixed on the Memorandum of Appeal. The Memorandum of Appeal was returned to the appellant by the Registry with the remarks that Court-fee stamp was insufficient. Nothing was done till about eight months. A contention was raised on behalf of the appellant that the appellant could not afford to pay the full Court-fees at the time when appeal was filed. Relying upon Moshaullah v. Ahmedullah (1886) 13 Cal. 78, and Husaini Begam v. Collector of Muzaffarnagar (1887) 9 All. 655 it was held that poverty was not sufficient cause within the meaning of Section 5 of the Limitation Act. A Single Judge of the Lahore High Court held thus:
It was held in Moshaullah v. Ahmedullah (supra), and Husaini Begam v. Collector of Muzaffarnagar (supra), that poverty was not sufficient cause within the meaning of Section 5, Limitation Act for an extention of the limitation period. In my opinion it would be an exceedingly bad precedent to hold that an appellant, who cannot pay the full Court-fee within the period of limitation prescribed for the filing of an appeal, should be allowed to file an appeal on an insufficient stamp and should be given time to pay the balance at his leisure. It is not alleged that the insufficient Court-fee was paid in the first instance through a bona fide mistake. I am quite clear that no bona fide mistake was made and also that no due diligence was used in making up the full Court-fee chargeable on the Memorandum of Appeal.
24. Similarly, a Division Bench of Lahore High Court in Balwant Singh v. Jagjit Singh AIR (34) 1947 Lahore 210 held that poverty of litigant cannot be regarded a sufficient cause for extending the period of limitationunder Section 5 of the Limitation Act.
25. Bombay High Court in Smt. Joaquina Cardoze w/o Jaoa Fernandes v. Shipping Corporation of India Ltd. : (1966)IILLJ823Bom held that restrictions regarding travel, poverty of applicant to spend for journey for presentation of application personally or necessity to remain at home for children is not sufficient cause for failure to make application in time.
26. A Full Bench of Punjab and Haryana High Court in Mahant Gurmukh Singh v. The State of Punjab relying upon its earlier Division Bench decision in Punjab State v. Gopal Singh AIR 1964 Punjab 154 held that plea of non-availability of amount for obtaining copy of the judgment would not constitute sufficient cause within the meaning of Section 5 of the Limitation Act. In Gopal Singh (supra), the appellant happened to be State Government and reason spelled out for the delay in filing the appeal was that delay occurred as on the last date of limitation, the appellant did not have sufficient money to buy the necessary Court-fees. The plea was rejected.
27. The Apex Court in Buta Singh (Dead) by L.Rs. v. Union of India (1995) 5 Supreme Court Cases 284, held that the Court is not bound to exercise discretionunder Section 149 of the Code of Civil Procedure unless applicant shows sufficient cause for the failure to pay deficit Court-fees or that he was under bona fide mistake in payment thereof. Their Lordships proceeded to observe:
Mere poverty or ignorance or inability to pay the Court-fee at the time of presenting the appeal is not always a good ground for indulgence under Section 149. Bona fide mistake on the part of the appellant or applicant in making the deficit Court-fee may be a ground to exercise discretion in favour of the appellant. If the party deliberately to suit his convenience paid insufficient Court-fee, the mistake is not bona fide (sic) of the choice made by the party in making the deficit Court-fee. Therefore the Court is required to exercise its judicial discretion keeping the facts and circumstances in each case and not automatically for mere asking that indulgence be shown to the party to make good the deficit Court-fee.
(Emphasis supplied)
28. In this case, we have already observed that plea of financial constraints raised by the Insurance Company, in their rejoinder, lacks bona fide and therefore, in our view, applicants are not entitled to indulgence of this Court. In Ved Parkash v. Smt. Shakuntala Devi and Anr.1997 (3) Sim. LC 28 : II (1997) ACC 520 (SC) relying upon Full Bench decision of Lahore High Court in jagat Ram v. Misar Kharaiti Ram and Anr. AIR 1938 Lah. 361 one of us (Ms. Justice Kamlesh Sharma), held that discretion to be exercised by the Court under Section 149 of the Code of Civil Procedure, is to be exercised in favour of a litigant only if the application is bona fide. In that case, the appellant-applicant after obtaining order on May 20,1995 to make good the deficiency of the Court-fee did not care to make good the deficiency till for about one year and 10 months, there was no explanation as to why the deficiency was not made good during this period. In these circumstances, the application under Section 149 of the Code was rejected.
29. Learned Counsel for the respondent also rely upon judgment of Division Bench of this Court in C.M.P. (M) No. 482 of 1999, Prem Chand v. Rup Chand and Ors. decided on April 26,2000 to which one of us (Kamlesh Sharma, ACJ as My Lord then was) was a party, an appeal was initially filed beyond the period of limitation without affixing proper Court-fees. Objection was raised by the Registry and appeal returned to make good the deficiency in the Court-fees. However, the appeal was not refiled within 20 days as contemplated under Rule 8 of Chapter-II of the H.P. High Court (Scrutiny, Maintenance of Judicial Records, Administrative and Executive Business) Rules, 1997 which provides the period for removal of objection to be seven days at a time and 20 days in aggregate. In these circumstances, the application under Section 5 of the Limitation Act for condonation of delay in filing the appeal along with another application under Section 151 of the Code of Civil Procedure for condonation of delay in refilling the appeal, after removal of objection, was rejected observing that Courts have no power to extend the period of limitation on equitable grounds.
30. Learned Counsel for the appellant refers us to State of Haryana v. Chandra Mandi AIR 1996 Supreme Court 1623 and Special Tehsildar, Land Acquisition Kerala v. K.V. Ayismnma AIR 1996 Supreme Court 2750 and contends that the applicant Insurance Company is a Public Sector Company with all its bureaucratic methodology and impersonal officials and therefore, entitled to indulgence of this Court in the condonation of the delay.
31. We express our inability to accept the contention. In Chandra Mandi (supra), their Lordships of the Supreme Court observed that expression 'sufficient cause' should be liberally construed particularly when State is an applicant and public cause is involved. Their Lordships took note that delay on the part of the State is less difficult to understand though more difficult to prove due to impersonal machinery and the inherited bureaucratic methodology 'imbued with the note-making, file-pushing, and passing-on the buck', therefore, certain amount of latitude is not impermissible if the appeals brought by the State are delayed for such faults and, in such cases, pragmatic approach should be adopted. Similarly, in K.V. Ayismnma, their Lordships observed that adoption of strict standard of proof leads to grave miscarriage of public justice in Government cases as the transaction of the business of the Government is done at a leisurely pace by its officers who had no personal interests at different levels and by skillful management of delay, in the process of filing the appeal, can result in a public mischief.
32. In the present case, the applicants have not shown any cause for not affixing the Court-fees from at least January onwards till 20th April, 2000 much less sufficient cause. There is no explanation in the rejoinder filed by the Insurance Company. The Insurance Company did not even care to file an application under Section 149 of the Code of Civil Procedure for the grant of time to make good the deficiency of Court-fees inspite of repeated objections raised by the Registry. The inaction on the part of the Insurance Company lacks bona fide. We, in the absence of any sufficient cause, cannot condone the delay in filing the appeal.
33. There is no merit in the application. The same is dismissed.