DR. YASHWANTRAO BHASKARRAO DESHMUKH versus RAGHUNATH KISAN SAINDANE on 8 October 2021

1. Leave granted.

2. This appeal arises out of the judgment passed on 7.8.2018 bythe High Court of judicature of Bombay, Bench at Aurangabad on CivilApplication No. 12143 of 2017 in Second Appeal (ST) No. 31286 of2017 dismissing the application seeking condonation of delay and theappeal as barred by limitation.

3. The facts leading to file this appeal are that a suit for specificperformance of the contract was filed by the respondent against theappellant based on an agreement to sell dated 18.2.1998 with respect toan agricultural land bearing Gat No. 21/1, admeasuring 1.54 hectares,situated at Maouje Hingone Sim Tehsil Amalner. The said suit was partlydecreed ex-parte by judgment dated 9.12.2002 in Special Civil Suit No.2 of 2001 by Civil Judge (Sr. Division), Amalner directing recovery of asum of Rs. 61,000/- along with interest @ 6% p.a. from the appellant(defendant therein), while relief for specific performance of contractwas denied.

4. Respondent preferred first appeal before the High Court. Theappellant was duly served and appeared in the said matter through thecounsel. However, due to enhancement of pecuniary jurisdiction of theDistrict Court, the said appeal stood transferred from the High Court tothe District Court. Thereafter, a fresh notice was issued to the appellant,which was served through paper publication. The appellant did not appear,and taken pretext of non-service of the notice due to change of hisaddress. The Ad-hoc District Judge-I, Amalner proceeding ex-parte,allowed the Regular Civil Appeal No. 31 of 2012 vide judgment dated8.09.2015 and granted decree of specific performance in favour ofrespondent (plaintiff therein).

5. Aggrieved by the judgment of the Ad-hoc District Judge-I,appellant filed second appeal before the High Court of judicature ofBombay, Bench at Aurangabad on 18.9.2017, inter alia, contending thatthe judgment passed by the Ist Appellate Court came to his knowledgeonly on 14.9.2017. There was a delay of 650 days in filing the appeal.However, explaining the delay due to lack of knowledge of the decisionin the appeal, prayer for condonation was made.

A

B

C

D

E

F

G

H

A6. By the impugned judgment dated 07.08.2018, passed by theHigh Court in Second Appeal (ST) No. 31286 of 2017, the applicationseeking condonation was rejected, observing that the plea of non serviceof notice due to change of address was not acceptable. It was alsoobserved that the appellant had himself been negligent and had notcontacted his counsel engaged in the lower appellate court. The HighBCourt, however, observed that the respondent, who had been litigatingsince last 17 years, ought not be deprived of the valuable right as accruedto him. With these observations, the application seeking condonation wasrejected, dismissing the second appeal, as time barred.

A

7. Learned counsel for the appellant has strenuously urged thatCthe suit was filed for specific performance of contract. As per the defencetaken, it is visible from the agreement itself that it was not an agreementto sell but a money transaction, to which a sum of Rs. 90,000/- has beenrefunded and only sum of Rs. 51,000/- was remaining. In addition, Rs.10,000/- paid later and endorsed therein. The trial court decreed the suit Dpartly, for refund of earnest amount. The decree of specific performanceis a discretionary relief, as specified under Section 16 of the SpecificRelief Act. However, without giving an opportunity of hearing to contestthe claim, the lower appellate court allowed the appeal of the respondentand passed an ex-parte judgment and decree of specific performance.Counsel argued that the dismissal of the second appeal on the ground ofElimitation is wholly unreasonable.

8. In support of the contentions, reliance has been placed on ajudgment of this Court in the case of Perumon Bhagvathyu DevaswomPerinadu Village vs. Bhargavi Amma (dead) by LRS and Others(2008)8SCC 321 to contend that when appeal is pending in the appellateFcourt where periodical dates are not being given, the parties cannot befaulted with because the counsel informs the parties that they will get intouch as and when the case is listed for hearing. Considering the factsof the case in which the notice of the appeal sent by publication is notallegedly served and the documents of change of address have beenGfiled by the appellant as well as the respondent, which are on record, insuch a situation, lenient view ought be taken.

9. Reliance is further placed on the judgment of this Court in N.Mohan vs. R. Madhu 2019(16)SCALE 602. In the said case, consideringthe facts and circumstances of the case and in the interest of justice, anHopportunity was granted subject to deposit of the amount.

10. Reliance is further placed on the decision of this Court inRohin Thapa vs. Rohit Dora (2019) 7 SCC 359, wherein this Courtsubject to direction of deposit of the amount of the agreement and furtherdeposit of the amount of the stamp and registration fee, directed tocondone the delay and also set-aside the sale deed, executed by theCourt. Therefore, an opportunity in a suit of specific performance to theappellant may be granted condoning the delay subject to imposition ofthe conditions, as deemed fit.

11. Per contra, learned counsel representing the respondentcontends that a suit for specific performance of contract was filed longback and respondent is contesting the matter for the last 20 years. In thesaid suit in trial court, the appellant remained ex-parte. However, thesuit was partly decreed. On filing a first appeal before the High Court,notice was served and the appellant was represented through anadvocate. Later, due to enhancement of pecuniary jurisdiction, the saidappeal stood transferred to the court of Ad-hoc District Judge-I, Amalner,where from notice of the appeal was served through publication. Theappellant did not choose to appear before the Ist Appellate Court, howeverthe suit seeking specific performance was decreed. The appellantremained ex-parte and on filing the execution, the sale deed has alsobeen executed. The appeal filed before the High Court by the appellantwas barred by limitation of 650 days, which has not been explainedshowing bona fides. In such a case, interference by this Court is notwarranted.

12. Having heard learned counsel for the parties and on perusalof the facts of the case, suit seeking specific performance was based onan agreement to sell dated 18.2.1998. As per the said agreement to sell,appellant had agreed to sell 5 bighas of land for a consideration at therate of Rs. 51000/- per bigha. As per the entries on the agreement tosell, certain amount was paid. Later on, certain refund is also recordedand acknowledged thereon. The Trial Court, considering the same, refusedto grant a decree of specific performance but directed for refund of Rs.61,000/- with interest. The said decree was reversed by the lowerAppellate Court, directing specific performance. In both the courts, theappellant remained ex-parte.

13. The appellant filed an appeal before the High Court, whichhas been dismissed as barred by limitation. The High Court, whiledismissing the application seeking condonation of delay in filing second AB

C

D

E

F

G

H

Aappeal observed that sufficient cause for delay has not been established.The litigant, who is contesting the matter, cannot be negligent and itwould be unfair to deprive the respondent, litigating for the last 17 years,of the valuable right that has accrued to him.

14. In this case, the appellant has also produced the documentsBincluding voters list/aadhar card showing his change of address fromAmalner to Nashik. On the other hand, the respondent has produced thevoters’ list of Amalner itself contending that the name of appellant is stillexisting. However, in such a situation without any enquiry and withoutarriving at a finding disbelieving the explanation of the appellant, theHigh Court was not justified in rejecting the application for condonationCof delay.

15. As per the judgment of Perumon Bhagvathy Devaswom(supra), the Court, while dealing with the issue of condonation of delayin respect of matters pending at the appellate stage, has clearly observedthat advocates usually inform the litigants who are to be in contact.DSometimes, they assure their clients that will give information to them asand when matter would be ripe for hearing. Considering the aforesaidaspect and taking a lenient view, we are of the considered opinion thatthe High Court erred in dismissing the second appeal solely on the groundof limitation. Therefore, the impugned judgment and order of the HighECourt is set-aside.

16. A second appeal lies to the High Court if the High Court issatisfied that a substantial question of law is involved. We request theHigh Court to take up the second appeal for admission as expeditiouslyas possible, preferably within one month, and if the second appeal isFadmitted, to decide and finally dispose of the same within a period of sixmonths from the date of communication of this judgment and order.

17. It is made clear here that any of the observations madehereinabove would not be treated as an expression on the merits ofsecond appeal and would not cause any impediment to the parties.

G18. Appeal is, thus, disposed of in the aforesaid terms. No orderas to costs.

Devika Gujral

Appeal disposed of.

H