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2021 SCC OnLine SC 914

In the Supreme Court of India

(BEFORE I NDIRA BANERJEE AND J.K. MAHESHWARI, JJ.)

Dr. Yashwantrao Bhaskarrao Deshmukh … Appellant;

Versus
Raghunath Kisan Saindane … Respondent.
Civil Appeal No. 6315 of 2021 (Arising out of Special Leave Petition (C) No. 27874
of 2018)
Decided on October 8, 2021
The Judgment of the Court was delivered by
J.K. MAHESHWARI, J.:— Leave granted.
2. This appeal arises out of the judgment passed on 7.8.2018 by the High Court of
judicature of Bombay, Bench at Aurangabad on Civil Application No. 12143 of 2017 in
Second Appeal (ST) No. 31286 of 2017 dismissing the application seeking condonation
of delay and the appeal as barred by limitation.
3. 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 Maouje Hingone Sim Tehsil Amalner. The said
suit was partly decreed 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 a sum of Rs.
61,000/- along with interest @ 6% p.a. from the appellant (defendant therein), while
relief for specific performance of contract was denied.
4. Respondent preferred first appeal before the High Court. The appellant was duly
served and appeared in the said matter through the counsel. However, due to
enhancement of pecuniary jurisdiction of the District Court, the said appeal stood
transferred from the High Court to the 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 his
address. The Ad-hoc District Judge-I, Amalner proceeding ex-parte, allowed the
Regular Civil Appeal No. 31 of 2012 vide judgment dated 8.09.2015 and granted
decree of specific performance in favour of respondent (plaintiff therein).
5. Aggrieved by the judgment of the Ad-hoc District Judge-I, 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. There was a delay of 650 days in filing the
appeal. However, explaining the delay due to lack of knowledge of the decision in the
appeal, prayer for condonation was made.
6. By the impugned judgment dated 07.08.2018, passed by the High Court in
Second Appeal (ST) No. 31286 of 2017, 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 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 application seeking condonation was rejected, dismissing the second
appeal, as time barred.
7. Learned counsel for the appellant has strenuously urged that the suit was filed
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for specific performance of contract. As per the defence taken, it is visible from the
agreement itself that it was not an agreement to sell but a money transaction, to
which a sum of Rs. 90,000/- has been refunded 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 partly, for refund of 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 ex-parte
judgment and decree of specific performance. Counsel argued that the dismissal of the
second appeal on the ground of limitation is wholly unreasonable.
8. In support of the contentions, reliance has been placed on a judgment of this
Court in the case of Perumon Bhagvathyu Devaswom Perinadu Village v. Bhargavi
Amma (dead) by LRS (2008) 8 SCC 321 to contend that when appeal is pending in
the appellate court where periodical dates are not being given, the parties cannot be
faulted with because the counsel informs the parties that they will get in touch as and
when the case is listed for hearing. 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 such a situation, lenient view ought be taken.
9. Reliance is further placed on the judgment of this Court in N. Mohan v. R. Madhu
(2019) 16 Scale 602. In the said case, considering the facts and circumstances of the
case and in the interest of justice, an opportunity was granted subject to deposit of
the amount.
10. Reliance is further placed on the decision of this Court in Rohin Thapa v. Rohit
Dora (2019) 7 SCC 359, wherein this 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 set-aside the sale deed,
executed by the Court. Therefore, an opportunity in a suit of specific performance to
the appellant may be granted condoning the delay subject to imposition of the
conditions, as deemed fit.
11. Per contra, learned counsel representing the respondent contends that a suit for
specific performance of contract was filed long back and respondent is contesting the
matter for the last 20 years. In the said suit in trial court, the appellant remained ex-
parte. However, the suit was partly decreed. On filing a first appeal before the High
Court, notice was served and the appellant was represented through an advocate.
Later, due to enhancement of pecuniary jurisdiction, the said appeal stood transferred
to the court of Ad-hoc District Judge-I, Amalner, where from notice of the appeal was
served through publication. The appellant did not choose to appear before the Ist
Appellate Court, however the suit seeking specific performance was decreed. The
appellant remained ex-parte and on filing the execution, the sale deed has also been
executed. The appeal filed before the High Court by the appellant was barred by
limitation of 650 days, which has not been explained showing bona fides. In such a
case, interference by this Court is not warranted.
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 agreed to sell 5 bighas of
land for a consideration at the rate of Rs. 51000/- per bigha. As per the entries on the
agreement to sell, certain amount was paid. Later on, certain refund is also recorded
and acknowledged thereon. The Trial 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 courts, the appellant remained ex-parte.
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13. The appellant filed an appeal before the High Court, which has been dismissed
as barred by limitation. The High Court, while dismissing the application seeking
condonation of delay in filing second appeal observed that sufficient cause for delay
has not been established. The litigant, who is contesting the matter, cannot be
negligent and it would 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 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 Amalner itself contending that
the name of appellant is still existing. However, in such a situation without any
enquiry 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.
15. As per the judgment of Perumon Bhagvathy Devaswom (supra), the Court,
while dealing with the issue of condonation of delay in respect of matters pending at
the appellate stage, has clearly observed that advocates usually inform the litigants
who are to be in contact. Sometimes, they assure their clients that will give
information to them as and when matter would be ripe for hearing. Considering the
aforesaid 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 impugned judgment and order of the High Court is set-aside.
16. A second appeal lies to the High Court if the High Court is satisfied that a
substantial question of law is involved. 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.
17. It is made clear here that any of the observations made hereinabove would not
be treated as an expression on the merits of second appeal and would not cause any
impediment to the parties.
18. Appeal is, thus, disposed of in the aforesaid terms. No order as to costs.
———
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