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.”
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Judgment Reviewed by – Vandana Ragwani
