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Judgment
This an appeal by the defendants assailing the judgment and decree dated 03.03.2009 passed by the learned Civil Judge (Senior Division), Hukkeri (for short, ‘the First Appellate Court’), in Regular Appeal No.08/2006, and the judgment and decree dated 24.11.2001 passed by the learned Civil Judge (Junior Division), Sankeshwar (for short, ‘the Trial Court’), in O.S. No.594/1997.
For the sake of convenience, the parties are referred as plaintiff and defendants.
The facts, in brief, are that the plaintiff–Shivappa filed a suit before the Trial Court, numbered as O.S. No.594/1997, against four defendants seeking the relief of specific performance of the contract in respect of the lands bearing Survey No.17/1 measuring 1 acre 9 guntas and R.S. No.27/4 measuring 2 acres 14 guntas, both situated at Gudaganatti Village, Hukkeri Taluk.
The plaintiff also filed another suit against the same defendants, numbered as O.S. No.595/1997, seeking the relief of specific performance of the contract in respect of Plot No.66, Record No.65, measuring 40 feet East-West and 60 feet North-South, situated at Moje-Thana Hattargi Village, Hukkeri Taluk.
The plaintiff contended that the defendants were the owners of the schedule properties in both the suits and, accordingly, executed an agreement of sale dated 03.08.1992 in his favour agreeing to sell the suit properties for ₹20,000/- and received earnest money of ₹10,000/-. It was agreed that the defendants would execute the regular sale deed after receiving the balance sale consideration of ₹10,000/- within two years from the date of the agreement of sale.
Pursuant to the agreement of sale, the plaintiff contended that he was put in possession of the suit properties.
It was further contended that the plaintiff approached the defendants on several occasions and requested them to receive the balance sale consideration of ₹10,000/- and execute the registered sale deed. However, the defendants avoided performance of their part of the contract. Therefore, the plaintiff was constrained to issue a registered legal notice dated 16.06.1994, which was duly served upon the defendants. The defendants issued an untenable reply to the said notice.
Thereafter, the plaintiff issued another notice dated 12.08.1996 calling upon the defendants to execute the sale deed before the Sub-Registrar, Hukkeri, on 19.08.1996. The plaintiff waited for the defendants from 11.00 a.m. to 5.00 p.m.; however, the defendants did not appear. Hence, the plaintiff was constrained to file the suits seeking specific performance of the agreement of sale by directing the defendants to execute the registered sale deeds in respect of the suit properties upon receipt of the balance sale consideration of ₹10,000/-.
In response to the summons issued by the Trial Court, defendant Nos.1 and 2 appeared through counsel and filed their written statement resisting the suits. Defendant Nos.3 and 4 were placed ex-parte.
The defendants contended that they had never agreed to sell the suit properties to the plaintiff and had not executed any agreement of sale dated 03.08.1992, as alleged by the plaintiff.
They further contended that the suit properties, which are the subject matter of O.S. No.594/1997, namely R.S. No.17/1 and R.S. No.27/4, are the ancestral properties of the defendants. The said properties were valued at ₹80,000/- per acre and were the only source of income of the defendants' family.
It was further contended that, on 03.08.1992, the defendants had borrowed a sum of ₹10,000/- from the plaintiff and had agreed to repay the same within three years. According to the defendants, the plaintiff insisted upon execution of an agreement of sale as security for the said loan, and accordingly, the defendants executed the document dated 03.08.1992.
It was their specific contention that the said document was not an absolute agreement of sale, but was executed only as security for the loan of ₹10,000/-borrowed by them from the plaintiff.
It was further contended that the defendants never intended to execute a regular sale deed in favour of the plaintiff upon receipt of the balance amount of ₹10,000/-. They also denied that the plaintiff was put in possession of the suit properties and contended that they continued to be in possession thereof as owners and were raising crops such as jowar, groundnut, cotton and soybean.
The defendants further contended that the plaintiff was never ready and willing to perform his part of the contract.
It was also contended that the defendants had suitably replied to the notice dated 16.06.1994 issued by the plaintiff. According to the defendants, the entire transaction between the parties was subsequently settled in the presence of the village panchas and elders, pursuant to which the agreement of sale was cancelled. Therefore, the plaintiff was not entitled to seek the relief of specific performance and the suits were liable to be dismissed.
In respect of the suit property in O.S. No.595/1997, namely Plot No.66, Record No.65, the defendants denied the alleged agreement of sale. They contended that the said plot had been granted by the Government in favour of defendant No.1 and that defendant No.1 had been residing therein for the preceding 22 to 23 years after incurring an expenditure of ₹40,000/- towards construction of the house. It was further contended that, during the year 1992-93, the said plot was valued at more than ₹85,000/-.
The defendants further contended that, since the plot had been granted by the Government subject to a condition of non-alienation, the same could not be alienated either by way of an agreement of sale or by any other mode of transfer. Therefore, the question of getting the said condition relaxed and executing a regular sale deed in favour of the plaintiff did not arise.
Thus, the defendants contended that they had never executed any agreement of sale dated 03.08.1992, as alleged by the plaintiff, and sought dismissal of both the suits.
The Trial Court framed issues separately in respect of both the suits. Thereafter, both the suits were clubbed together for recording common evidence and for their disposal.
In order to substantiate his claim, the plaintiff examined himself as PW.1 and examined one witness as PW.2. He also produced and marked documents at Exs.P.1 to P.21.
The defendants did not lead any oral or documentary evidence before the Trial Court.
Upon appreciation of the oral and documentary evidence available on record, the Trial Court proceeded to dispose of the suits. O.S. No.594/1997 came to be decreed by judgment dated 24.11.2001. The operative portion of the judgment reads as under:
“Suit O.S.No.594/97 is decreed. The defendant are directed to execute a regular sale deed in respect of the suit lands bearing R.S.No.17/1 measuring 1 acre 9 gunthas and R.S.No.27/4 measuring 2 acres 14 gunthas situated at hattargi village, after receiving Rs.10,000/-the remaining sale consideration amount from the plaintiff.
In case the defendants fail to execute the regular sale deed in favour of the plaintiff. Then the plaintiff may get appointed the court commissioner to execute regular sale deed on behalf of the mdefendants.
Suit O.S.No.595/97 is hereby dismissed. No order as to the return of earnest amount as these is no prayer in plaint.
Looking to the circumstances of the case, the parties are directed to bear their own costs in both the suits.
Keep copy of common judgment in O.S.No.595/97.”
Being aggrieved by the decreetal of the suit in O.S.No.594/1997 as ordered by said judgment and decree, the defendants preferred an appeal before the First Appellate Court in R.A. No.8/2006.
There was an inordinate delay in filing the said appeal. Therefore, the defendants filed I.A. No.1 under Order XLI Rule 3-A of the Code of Civil Procedure, 1908,(for short, ‘CPC’) seeking condonation of the delay in filing the appeal.
After appearance of the plaintiff/respondent before the First Appellate Court, the plaintiff opposed the application filed by the defendants seeking condonation of the delay in filing the appeal.
The First Appellate Court, after hearing the parties, perusing I.A. No.1 along with the affidavit filed by the appellants/defendants and considering the objections filed by the respondent/plaintiff, proceeded to pass the impugned order rejecting I.A. No.1 filed by the defendants and consequently, the appeal preferred by the defendants also came to be dismissed as barred by limitation, vide impugned order dated 03.03.2009.
Being aggrieved by the dismissal of the appeal as barred by time, the defendants have preferred the present appeal on the following grounds:
a. The impugned judgment and decree passed by the Courts below are perverse and capricious. It is contended that both the Courts below have failed to take note of the fact that sufficient opportunity was not afforded to the defendants to defend the suit. Learned counsel appearing for the defendants before the Trial Court had filed a memo seeking permission to retire from the case. The Trial Court accepted the said memo of retirement without affording an opportunity to the defendants to make alternative arrangements for their representation.
b. It is further contended that, without affording sufficient opportunity to the defendants to cross-examine PW.1 and PW.2 and to lead their evidence, the Trial Court proceeded to decree the suit. Hence, the defendants were deprived of a reasonable opportunity to contest the suit on merits.
c. The defendants further contended that they had never executed any agreement of sale in favour of the plaintiff and had not received any sale consideration. According to them, they had borrowed a sum of ₹10,000/- as a hand loan from the plaintiff and the said amount had already been repaid. Therefore, the alleged agreement of sale is false and concocted.
d. It is further contended that the First Appellate Court ought to have condoned the delay and entertained the appeal on merits. The rejection of I.A. No.1 and the consequent dismissal of the appeal as barred by limitation are not just and proper.
Hence, the defendants have prayed for setting aside the impugned judgment and decree passed by the Courts below and to dismiss the suit of the plaintiff.
After institution of the present appeal, in response to the notice issued by this Court, the respondent/plaintiff appeared and resisted the appeal.
Heard the learned counsel Sri Shivaraj P. Mudhol, for the appellant and Sri Dinesh M. Kulkarni, for the respondents.
Learned counsel for the appellants has relied upon the following judgments in support of the case of the appellants:
a. Rangappa and Others v. Nagappa and Others, ILR 2016 KAR 4463.
b. Collector, Land Acquisition, Anantnag and Another v. Katiji and Others, (1987) 2 SCC 107.
c. Holya Lasha Mahale andanother vs. Raghunath Holya Mahale, (2006 SCC Online Bom 352
d. Chandrakant Somnath Melge vs. Balasaheb Somnath Melge, 2017(3) Mh.L.J 668.
e. Amar Singh S/o.Harisingh Thakur vs. Tulshiram S/o.Kisan Ingle and others 2010(6) Mh.L.J. 240.
Learned counsel for the respondent has relied upon the following judgment in support of the case of the respondent:
Smt. Philomina Lourdamary and Another v. Smt. Latha, reported in 2018 (4) KCCR 3191.
Perused the records of both the Courts.
At the time of admission of the appeal, the following substantial question of law was framed for consideration:
Whether the First Appellate Court has committed a serious error in dismissing the appeal as barred by limitation, despite sufficient cause having been shown for condonation of delay, particularly without holding an enquiry into the application seeking condonation of delay?
Arguments of appellants/defendants.
Learned counsel for the appellants argued that, before the Trial Court in O.S. No.594/1997, the appellants, who were the defendants therein, were represented by counsel. During the pendency of the trial, the counsel appearing for the defendants filed a memo seeking permission to retire from the case. The Trial Court accepted the said memo without affording an opportunity to the defendants to make alternative arrangements for their representation and proceeded to dispose of the suit. Consequently, the suit filed by the plaintiff came to be decreed, directing the appellants herein to execute a registered sale deed in respect of the suit property.
Learned counsel for the appellants further contended that, once the counsel on record before the Trial Court had retired from the case, the defendants ought to have been afforded an opportunity to engage another counsel and put forth their defence. Without providing such reasonable opportunity, the Trial Court proceeded with the matter and decreed the suit. Therefore, it was contended that the judgment and decree passed by the Trial Court are erroneous and liable to be set aside.
Learned counsel for the appellants further submitted that the appellants preferred R.A. No.8/2006, assailing the judgment and decree passed by the Trial Court in O.S. No.594/1997, whereby the suit was decreed and the appellants were directed to execute the sale deed in respect of the suit lands.
It was further argued that, as there was a delay in filing R.A. No.8/2006, the First Appellate Court rejected the application filed by the appellants seeking condonation of delay and consequently dismissed the appeal as barred by limitation.
Learned counsel for the appellants contended that the First Appellate Court ought not to have rejected the application for condonation of delay without conducting an enquiry. It was argued that the application came to be rejected merely on the basis of the objections filed by the respondent and upon consideration of the contents of the affidavit, without affording the appellants an opportunity to substantiate the reasons stated for the delay.
Learned counsel further submitted that, in the decisions relied upon by him, it has been held that the substantive rights of the parties, particularly in respect of immovable property, ought not to be defeated on mere technicalities. It was contended that, when substantial justice and technical considerations are pitted against each other, substantial justice should prevail. The legislature has conferred the power to condone delay by enacting Section 5 of the Limitation Act, 1963, with the object of enabling the Courts to advance substantial justice by adjudicating matters on their merits. The expression “sufficient cause” employed by the legislature is elastic enough to enable the Courts to apply the provision in a meaningful manner so as to advance the ends of justice.
Therefore, learned counsel for the appellants submitted that the First Appellate Court, without conducting an enquiry into the application filed by the appellants seeking condonation of delay and without affording them an opportunity to substantiate the reasons for the delay, erroneously rejected the said application and consequently dismissed the appeal as barred by limitation. It was, therefore, contended that the Courts below have committed an error in decreeing the suit filed by the plaintiff for specific performance of the contract.
Arguments of Respondents/Plaintiffs
Per contra, learned counsel for the respondent/plaintiff contended that the appellants, being fully aware of the judgment and decree passed against them by the Trial Court on 24.11.2001, deliberately preferred the appeal only after a lapse of four years and twenty-two days. Therefore, it was contended that the appellants had failed to establish sufficient cause for such an inordinate delay and that the First Appellate Court was justified in rejecting the application seeking condonation of delay and consequently dismissing the appeal as barred by limitation.
It was further argued that the Trial Court, in O.S. No.594/1997, had afforded sufficient opportunity to both the parties to contest the suit. Though the learned counsel appearing for the defendants before the Trial Court had retired from the case, the Trial Court had issued notice to the defendants, who are the appellants herein. However, despite service of notice, the defendants did not appear before the Trial Court. After waiting for a sufficient period, the Trial Court proceeded with the matter and passed the judgment and decree.
It was further argued that the appellants herein had not appeared even in the execution proceedings initiated by the plaintiff for execution of the decree passed in O.S. No.594/1997, though they had received notices in the execution petition. The plaintiff had filed Execution Petition No.19/2003, wherein the appellants, who were arrayed as judgment debtors, did not appear despite being duly served with notice. In the said execution proceedings, the Executing Court directed the Court Commissioner to execute the sale deed in favour of the plaintiff in terms of the decree. Accordingly, the sale deed came to be executed and registered before the Sub-Registrar in favour of the plaintiff.
It was further argued that, even in the execution proceedings, though notices were issued to the judgment debtors, they deliberately failed to contest the proceedings. After the execution and registration of the sale deed in favour of the plaintiff and after the plaintiff was put in possession of the suit property, the appellants, after a lapse of four years and twenty-two days, preferred R.A. No.8/2006 only with a view to harass the plaintiff.
It was further argued that the First Appellate Court, after considering the reasons assigned by the appellants in the application seeking condonation of delay and the objections filed by the respondent/plaintiff, had rightly rejected the said application and consequently dismissed the appeal as barred by limitation.
The substantial question of law framed for consideration in this appeal, at the cost of repetition, is as follows:
“Whether the First Appellate Court committed an error in dismissing the appeal as barred by limitation without holding an enquiry into the application seeking condonation of delay?”
The question that arises for consideration is whether an enquiry, as such, was mandatory before deciding the application seeking condonation of delay.
Learned counsel for the appellants/defendants argued that the rights of the parties in respect of immovable property should not be defeated merely on technicalities. A litigant does not stand to benefit by deliberately causing delay in approaching the Court. In the present case, the valuable immovable properties of the defendants are alleged to have been directed to be conveyed to the plaintiff on the basis of an alleged agreement of sale, though the defendants have denied the execution of the said agreement.
In this regard learned counsel has relied upon the judgments cited by him stated supra. I have gone through those judgments and I am in respectful agreement with the observations made in those judgments. In the judgment in the case of Rangappa and others (supra), it is held that:
A litigant does not stand to benefit by resorting to delay. The rights of the parties should not be deprived in respect of immovable property only on technicality. When substantial justice and technical considerations are pitted against each other, only the substantial justice should prevail. The legislature has conferred the power to condone delay by enacting section 5 of the Limitation Act, 1963, in order to enable the Courts to do substantial justice to the party by disposing of the matters on merits.
Further, learned counsel for the appellants argued that, as the appellants/defendants had not been afforded sufficient opportunity to put forth their defence before the Trial Court, the First Appellate Court ought not to have dismissed the appeal on the ground of limitation. It was contended that the First Appellate Court ought to have considered whether the defendants had, in fact, been afforded sufficient opportunity to contest the suit before the Trial Court.
In this regard, learned counsel for the appellants placed reliance on the judgment in the case of Collector, Land Acquisition (supra), wherein the Hon’ble Apex Court, considering the circumstances of the case, set aside the order dismissing the appeal as time-barred and remitted the matter to the appellate Court for disposal of the appeal on merits after affording reasonable opportunity of hearing to both sides.
Further, learned counsel for the appellants, placing reliance upon the judgment in the case of Holya Lasha Mahale (supra), argued that an application seeking condonation of delay is a miscellaneous judicial proceeding and is required to be decided on the basis of the evidence led by the parties before the Court. It was contended that the regular procedure requires the evidence of the parties to be recorded by way of examination-in-chief and cross-examination.
Learned counsel for the appellants, placing reliance upon the aforesaid judgments, categorically contended that the First Appellate Court, without recording evidence on the application filed by the appellants/defendants seeking condonation of delay in filing the appeal, erroneously rejected the said application and consequently dismissed the appeal. Therefore, it was contended that the First Appellate Court has committed a serious error, which calls for interference by this Court.
Per contra, learned counsel for the respondent/plaintiff argued that Order XLI Rule 3-A of the CPC deals with an application seeking condonation of delay in filing an appeal. The said provision contemplates that, when an appeal is presented after the expiry of the period prescribed by the law of limitation, it shall be accompanied by an application supported by an affidavit setting forth the facts relied upon by the appellant to satisfy the Court that he had sufficient cause for not preferring the appeal within the prescribed period.
It was argued that the said provision does not mandate that a formal oral enquiry must necessarily be conducted in every case before deciding an application seeking condonation of delay. The First Appellate Court is required to consider the cause shown by the appellants, the material placed on record, and the objections raised by the respondent/plaintiff. Therefore, it was argued that the First Appellate Court, after considering the affidavit filed in support of the application and the objections raised by the respondent/plaintiff, was justified in rejecting the application.
Learned counsel for the respondent/plaintiff has relied upon the judgments referred to supra, wherein, it has been held that,
“the appellant is required to establish sufficient cause for condoning the delay in filing the appeal. It has also been held that, when the delay is not satisfactorily explained, the same cannot be condoned and that a party taking a false stand merely to overcome the bar of limitation cannot be permitted to take advantage of such falsehood”.
In the present case, admittedly, the plaintiff had instituted two suits seeking specific performance of the agreements of sale. O.S. No.594/1997 was filed in respect of the landed properties, and the said suit came to be decreed, directing the defendants to execute the sale deed in favour of the plaintiff. The other suit, namely, O.S. No.595/1997, was filed in respect of the house property, i.e., the plot, and the said suit came to be dismissed by the Trial Court by judgment dated 24.11.2001.
It is the specific case of the respondent/plaintiff that, despite the decree passed in O.S. No.594/1997, the defendants did not come forward to execute the sale deed in favour of the plaintiff. Consequently, the plaintiff initiated execution proceedings, and in the said proceedings, the sale deed was executed and registered before the Sub-Registrar in favour of the plaintiff in terms of the decree.
Thereafter, the plaintiff was put in possession of the suit property. Only thereafter, and after a lapse of four years and twenty-two days, the defendants preferred R.A. No.8/2006 challenging the judgment and decree passed by the Trial Court.
It is the contention of learned counsel for the respondent/plaintiff that the appellants were aware of the proceedings before the Trial Court as well as the subsequent execution proceedings, yet they did not take steps to challenge the judgment and decree within the prescribed period of limitation. It is, therefore, contended that the appellants have failed to satisfactorily explain the delay of four years and twenty-two days in preferring the appeal.
It is further contended that the appellants had sufficient opportunity to participate in the proceedings in O.S. No.594/1997 as well as in the execution proceedings initiated by the plaintiff. Despite having knowledge of the decree and the execution proceedings, the appellants did not take timely steps to challenge the decree.
Having regard to the rival contentions, the question for consideration is whether the First Appellate Court committed an error in rejecting the application seeking condonation of delay merely because no formal enquiry was conducted.
Order XLI Rule 3-A of the CPC requires an application seeking condonation of delay to be filed along with the appeal and supported by an affidavit setting forth the facts relied upon by the appellant to satisfy the Court that there was sufficient cause for not preferring the appeal within the prescribed period. The provision does not, by itself, mandate that a formal oral enquiry must be conducted in every case before deciding such an application. The Court is required to consider the explanation offered by the appellant and the material available on record, including the objections raised by the opposite party, and determine whether sufficient cause has been shown.
On a reading of the provisions of Order XLI Rule 3-A of the CPC, the essential requirement is that the Court must examine the explanation offered for the delay and arrive at a judicial conclusion as to whether sufficient cause has been established.
The question that arises is whether a formal enquiry is mandatory. On a reading of the provisions of Order XLI Rule 3-A of the CPC, this Court is of the opinion that no formal enquiry, in the sense of a trial involving the recording of oral evidence, is necessarily required in every case. If the affidavit, documents and objections of the opposite party placed on record enable the Court to determine whether sufficient cause exists, the Court can decide the application on the basis of such material. There is no automatic requirement to conduct a formal evidentiary enquiry in every application seeking condonation of delay. An enquiry is not invariably mandatory. However, judicial consideration of the explanation offered and a reasoned finding on the existence or otherwise of sufficient cause are mandatory.
In the present case, the First Appellate Court considered the application filed by the appellants, the affidavit filed in support thereof and the objections raised by the respondent/plaintiff. Having considered the material placed before it, the First Appellate Court came to the conclusion that the appellants had failed to establish sufficient cause for the inordinate delay of four years and twenty-two days in preferring the appeal.
The appellants have not demonstrated any prejudice caused to them merely on account of the First Appellate Court deciding the application on the basis of the affidavit and the objections on record, without conducting a formal oral enquiry. The material on record also indicates that the appellants had knowledge of the decree and had subsequently, filing of the execution proceedings.
Therefore, merely because the First Appellate Court did not conduct a formal enquiry into the application seeking condonation of delay, it cannot be said that the order passed by the First Appellate Court suffers from any manifest error of law warranting interference by this Court in the present second appeal.
Accordingly, the substantial question of law is answered in favour of the respondent/plaintiff and against the appellants/defendants.
For the aforesaid reasons, the appeal is liable to be dismissed.
ORDER
The appeal is dismissed.
The judgment and decree dated 03.03.2009 passed by the learned Civil Judge (Senior Division), Hukkeri, in Regular Appeal No.08/2006, and the judgment and decree dated 24.11.2001 passed by the learned Civil Judge (Junior Division), Sankeshwar, in O.S. No.594/1997 is hereby confirmed.
The parties to bear their own costs.
Office is directed to send back the records along with a copy of this judgment.