REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6315 OF 2021
(ARISING OUT OF SPECIAL LEAVE PETITION (C) NO. 27874 OF 2018)
DR. YASHWANTRAO BHASKARRAO DESHMUKH ...APPELLANT
VERSUS
RAGHUNATH KISAN SAINDANE …RESPONDENT
J U D G M E N T
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
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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 exparte 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 nonservice of the notice due to
change of his address. The Adhoc District JudgeI, Amalner
proceeding exparte, allowed the Regular Civil Appeal No. 31 of
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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 Adhoc District JudgeI,
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
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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 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 exparte judgment and decree of specific
performance. Counsel argued that the dismissal of the
second appeal on the ground of limitation is wholly
unreasonable.
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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 vs. Bhargavi
Amma (dead) by LRS and Others (2008)8SCC 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 vs. 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.
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10. Reliance is further placed on the decision of this Court in
Rohin Thapa vs. 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
setaside 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 exparte. 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 Adhoc District
JudgeI, Amalner, where from notice of the appeal was served
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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
exparte 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
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Appellate Court, directing specific performance. In both the
courts, the appellant remained exparte.
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.
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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 setaside.
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.
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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.
……………………………J.
[ INDIRA BANERJEE ]
……………………………J.
[ J.K. MAHESHWARI ]
NEW DELHI;
OCTOBER 8, 2021.
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