Case: DR. YASHWANTRAO BHASKARRAO DESHMUKH Vs. RAGHUNATH KISAN SAINDANE

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.

Reasoning:
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.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.