Without any enquiry or arriving at a finding, disbelieving the explanation of one party, the High Court is not justified in rejecting the application for condonation of delay : Supreme Court
While dealing with the issue of condonation of delay in respect of matters pending at the appellate stage, the advocates usually inform the litigants who are to be in contact as upheld by the Supreme Court through the learned bench lead by Justice J.K Maheshwari in the case of Dr. Yashwantrao Bhaskarrao Deshmukh v. Raghunath Kisan Saindane [CIVIL APPEAL NO. 6315 OF 2021] (ARISING OUT OF SPECIAL LEAVE PETITION (C) NO. 27874 OF 2018) Brief facts of the case are that a suit for specific performance of the contract was filed by the respondent against the appellant based on an agreement to sell dated 18.2.1998 with respect to agricultural land. The said suit was partly decreed ex­parte by judgment dated 9.12.2002 in Special Civil Suit No. 2 of 2001 by Civil Judge (Sr. Division), Amalen directing recovery of a sum of Rs. 61,000/­ along with interest @ 6% p.a. from the appellant (defendant therein). The respondent preferred the first appeal before the High Court. However, the said appeal stood transferred from the High Court to the District Court. The Ad­hoc District Judge I, Amalner granted the decree of specific performance in favor of the respondent (plaintiff therein). Aggrieved by the judgment, the appellant filed a second appeal before the High Court of judicature of Bombay, Bench at Aurangabad on 18.9.2017, inter alia, contending that the judgment passed by the 1st Appellate Court came to his knowledge only on 14.9.2017 while explaining the delay of 650 days in filing the appeal. By the impugned judgment passed by the High Court the application seeking condonation was rejected, observing that the plea of non-service of notice due to change of address was not acceptable. It was also observed that the appellant had himself been negligent and had not contacted his counsel, dismissing the second appeal, as time-barred. Learned counsel for the appellant has strenuously urged that the suit was filed for the specific performance of a contract. The trial court decreed the suit partly, for a refund of the earnest amount. The decree of specific performance is a discretionary relief, as specified under Section 16 of the Specific Relief Act. However, without giving an opportunity of hearing to contest the claim, the lower appellate court allowed the appeal of the respondent and passed an ex­parte judgment and decree of specific performance. In support of the contentions, reliance has been placed on a judgment of this Court in the cases of Perumon Bhagvathyu Devaswom Perinadu Village vs. Bhargavi Amma (dead) by LRS and Others, N. Mohan vs. R. Madhu and Rohin Thapa vs. Rohit Dora. Learned counsel representing the respondent contends that a suit for specific performance of the contract was filed long back and the respondent is contesting the matter for the last 20 years. In the said suit in the trial court, the appellant remained ex­parte, the appeal filed before the High Court by the appellant was barred by a limitation of 650 days, which has not been explained showing bona fides. In such a case, interference by this Court is not warranted. Having heard learned counsel for the respective parties at length, the Hon’ble Court noted that in such a situation without any inquiry and without arriving at a finding disbelieving the explanation of the appellant, the High Court was not justified in rejecting the application for condonation of delay. The Supreme Court held, “We request the High Court to take up the second appeal for admission as expeditiously as possible, preferably within one month, and if the second appeal is admitted, to decide and finally dispose of the same within a period of six months from the date of communication of this judgment and order.”
This appeal arises out of the judgment passed on Appeal No. 31286 of 2017 dismissing the application seeking condonation of delay and the appeal as barred by The facts leading to file this appeal are that a suit for specific performance of the contract was filed by the respondent against the appellant based on an agreement to sell dated 18.2.1998 with respect to an agricultural land bearing Gat No. 21 1 admeasuring 1.54 hectares situated at Suit No. 2 of 2001 by Civil Judge Amalner The appellant was duly served and appeared in the said pecuniary jurisdiction of the District Court the said appeal Thereafter a fresh notice was issued to the appellant which change of his address. The Ad­hoc District Judge­I Amalner 2012 vide judgment dated 8.09.2015 and granted decree of appellant filed second appeal before the High Court of judicature of Bombay Bench at Aurangabad on 18.9.2017 inter alia contending that the judgment passed by the Ist Appellate Court came to his knowledge only on 14.9.2017 application seeking condonation was rejected observing that not acceptable. It was also observed that the appellant had himself been negligent and had not contacted his counsel engaged in the lower appellate court. The High Court however observed that the respondent who had been litigating since last 17 years ought not be deprived of the valuable right as accrued to him. With these observations the sum of Rs. 51 000 ­ was remaining. In addition Rs. 10 000 ­ suit partly for refund of earnest amount. The decree of specific performance is a discretionary relief as specified giving an opportunity of hearing to contest the claim the passed an ex­parte judgment and decree of specific performance. Counsel argued that the dismissal of the second appeal on the ground of limitation is wholly on a judgment of this Court in the case of Perumon Bhagvathyu Devaswom Perinadu Village vs. Bhargavi that when appeal is pending in the appellate court where periodical dates are not being given the parties cannot be Considering the facts of the case in which the notice of the appeal sent by publication is not allegedly served and the documents of change of address have been filed by the appellant as well as the respondent which are on record in 10. Reliance is further placed on the decision of this Court in Court subject to direction of deposit of the amount of the agreement and further deposit of the amount of the stamp and registration fee directed to condone the delay and also set­aside the sale deed executed by the Court. Therefore an 11. Per contra learned counsel representing the respondent last 20 years. In the said suit in trial court the appellant and the appellant was represented through an advocate Later due to enhancement of pecuniary jurisdiction the said appeal stood transferred to the court of Ad­hoc District Judge­I Amalner where from notice of the appeal was served before the Ist Appellate Court however the suit seeking specific performance was decreed. The appellant remained ex­parte and on filing the execution the sale deed has also been explained showing bona fides. In such a case 12. Having heard learned counsel for the parties and on perusal of the facts of the case suit seeking specific performance was based on an agreement to sell dated 18.2.1998. As per the said agreement to sell appellant had of Rs. 51000 ­ per bigha. As per the entries on the agreement to sell certain amount was paid. Later on certain Court considering the same refused to grant a decree of specific performance but directed for refund of Rs. 61 000 ­ with interest. The said decree was reversed by the lower Appellate Court directing specific performance. In both the 13. The appellant filed an appeal before the High Court the matter cannot be negligent and it would be unfair to deprive the respondent litigating for the last 17 years of the In this case the appellant has also produced the documents including voters list aadhar card showing his change of address from Amalner to Nashik. On the other hand the respondent has produced the voters’ list of existing. However in such a situation without any enquiry 15. As per the judgment of Perumon Bhagvathy Devaswom supra) the Court while dealing with the issue of condonation has clearly observed that advocates usually inform the litigants who are to be in contact. Sometimes they assure aspect and taking a lenient view we are of the considered opinion that the High Court erred in dismissing the second appeal solely on the ground of limitation. Therefore the request the High Court to take up the second appeal for month and if the second appeal is admitted to decide and hereinabove would not be treated as an expression on the 18. Appeal is thus disposed of in the aforesaid terms. No