Delay In Filing Second Appeal - Can't Reject Application For Condonation Of Delay Without A Finding Disbelieving Explanation: Supreme Court
A Bench of the Supreme Court has set aside an order of the Aurangabad Bench of the Bombay High Court which rejected a Second Appeal against the decree of the District Court refusing to condone the delay of 650 days.
The Bench of Justice Indira Benerjee and Justice JK Maheshwari observed that the High Court was not justified in rejecting the second appeal without inquiring about the reasons and disbelieving the explanations given by the appellant.
The Bench noted, "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."
In this case, a suit for specific performance was filed by the respondent against the appellant based on an agreement to sell agricultural land situated at Amalner. The suit was partly decreed exparte by Civil Judge (Sr. Division), Amalner directing recovery of a sum of Rs. 61,000/- along with interest @ 6% p.a. from the appellant, while relief for specific performance was denied.
The respondent filed First Appeal in the High Court, but due to enhancement of jurisdiction, it was transferred to the District Court. Thereafter, a fresh notice was issued to the appellant, which was served through paper publication. The appellant did not appear on the pretext of non-service of the notice due to a change of his address. The Adhoc District JudgeI, Amalner proceeding exparte, allowed the appeal on September 8, 2015 and granted decree of specific performance in favor of the respondent.
The appellant challenged the order before the High Court stating that the judgment passed by the 1st Appellate Court came to his knowledge only at the time of execution of the decree. The appellant sought condonation of the delay of 650 days in filing the appeal.
The High Court rejected the application observing that the plea of non-service of notice due to change of address was not acceptable. The High Court held that the appellant was negligent and had not contacted his counsel engaged in the lower appellate court. The High Court also observed that the respondent, who had been litigating since the last 17 years, ought not to be deprived of the valuable right as accrued to him.
The Counsel for the appellant submitted that, it is visible from the agreement itself that it was not an agreement to sell, but a money transaction. It was contended that 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, which is a discretionary relief.
The Counsel relied upon a judgment of this Court in the case of Perumon Bhagvathyu Devaswom Perinadu Village vs. Bhargavi Amma (dead) by LRS and Others which says that when an appeal is pending in the appellate court where periodical dates are not being given, the parties cannot be faulted because the counsel informs parties that they will get in touch as and when the case is listed for hearing.
On the other side, the Counsel for the respondent submitted that the respondent has not contested the case for 20 years. The respondent contended that the appellant did not have any bona fide explanation for the delay of 650 days.
After hearing the parties the Bench noted that the High Court had not taken into consideration the documents including voters list and Aadhar Card filed by the appellant showing change of his address.
The Bench observed, "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."
The Bench also accepted the reliance placed on the judgment in the matter of Perumon Bhagvathy Devaswom and held, "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."
The Bench referred back the matter to the High Court to consider the matter for admission within a month, if a substantial question of law is raised, and dispose of the same within six months.
Parties : DR. Yashwantrao Bhaskarrao Deshmukh Vs Raghunath Kisan Saindane