DR. YASHWANTRAO BHASKARRAO DESHMUKH versus RAGHUNATH KISAN SAINDANE
[2021] 6 S.C.R. 1125, Supreme Court of India, 2021
Outcome: Disposed off
Segment: Ratio
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[2021] 6 S.C.R. 1125
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DR. YASHWANTRAO BHASKARRAO DESHMUKH
v.
RAGHUNATH KISAN SAINDANE
(Civil Appeal No. 6315 of 2021)
OCTOBER 08, 2021
[INDIRA BANERJEE AND J. K. MAHESHWARI, JJ.]
Delay/latches: Condonation of delay of 650 days in filing
appeal against the ex parte decree – Suit for specific performance
of contract by respondent partly decreed exparte and recovery of
Rs.61,000 ordered while dismissing relief for specific performance
– Respondent filed appeal before High Court – Appellant was duly
served and appeared in the said matter through his counsel –
However, due to enhancement of pecuniary jurisdiction of District
Court, appeal stood transferred to District Court from High Court
and fresh notice issued to appellant through paper publication –
Appellant did not appear and District Court proceeding ex parte
allowed appeal and granted specific performance in favour of
respondent – Appellant filed appeal before High Court – There was
delay of 650 days in filing appeal – His plea of non service of
notice due to change of address, not accepted by High Court –
High Court dismissed appeal as time barred holding that sufficient
cause for delay was not established – On appeal, held: In this case,
appellant had produced the documents including voters list/aadhar
card showing his change of address from Amalner to Nashik – On
the other hand, the respondent had produced the voters’ list of
Amalner itself contending that the name of appellant was still
existing – In such a situation, without any enquiry and without
arriving at a finding disbelieving the explanation of the appellant,
High Court was not justified in rejecting application for condonation
of delay – Order of High Court set aside – High Court to take up
second appeal and dispose it of expeditiously.
Disposing of appeal, the Court
HELD: 1 In this case, the appellant had also produced the
documents including voters list/aadhar card showing his change
of address from Amalner to Nashik. On the other hand, the
respondent had produced the voters’ list of Amalner itself
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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. [Para 14][1130-B-C]
2. As per the judgment of Perumon Bhagvathy Devaswom,
the Court, while dealing with the issue of condonation of delay in
respect of matters pending at the appellate stage, advocates
usually inform the litigants who are to be in contact. Sometimes,
they assure their clients that they will give information to them
as and when matter would be ripe for hearing. Thus, the High
Court erred in dismissing the second appeal solely on the ground
of limitation. A second appeal lies to the High Court if the High
Court is satisfied that a substantial question of law is involved.
The High Court shall take up the second appeal for admission as
expeditiously as possible. [Paras 15, 16][1130-C-F]
Perumon Bhagvathyu Devaswom Perinadu Village v.
Bhargavi Amma (dead) by LRS and Others (2008) 8
SCC 321:[2008] 11 SCR 1  – relied on. 
Mohan v. R. Madhu 2019 (16) SCALE 602; Rohin Thapa
v. Rohit Dora (2019) 7 SCC 359 – referred to.
Case Law Reference
[2008] 11 SCR 1
relied on
Para 8
2019 (16) SCALE  602
referred to
Para 9
(2019) 7 SCC 359
referred to
Para 9
CIVIL APPELLATE JURISDICTION: Civil Appeal No.6315 of
2021.
From the Judgment and Order dated
07.08.2018 of the High Court
of Judicature at Bombay Bench at Aurangabad in Civil Application
No.12143 of 2017 in Second Appeal (ST) No.31286 of 2017.
Vivek Solshe, Varun Solshe, Vijay Khamkar, Anjani Kumar Jha,
Advs. for the Appellant.
Nishant Ramakantrao Katneshwarkar, Adv. for the Respondent.
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The Judgment of the Court was delivered by
J. K. MAHESHWARI, J.
1. 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.
DR. YASHWANTRAO BHASKARRAO DESHMUKH v.
RAGHUNATH KISAN SAINDANE
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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 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 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 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.
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
DR. YASHWANTRAO BHASKARRAO DESHMUKH v.
RAGHUNATH KISAN SAINDANE [J. K. MAHESHWARI, J.]
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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.
Devika Gujral
Appeal disposed of.