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DAYACHAND versus HARTEJ SINGH & OR

High Court of Rajasthan

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DAYACHAND v HARTEJ SINGH & OR - CFA Case No. 0740 of 2006 [2006] RD-RJ 1147 (17 May 2006)

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JODHPUR

JUDGMENT

Daya Chand Vs. Hartej Singh & Anr.

S.B. CIVIL FIRST APPEAL NO.DR(J)740/06

Against judgment and decree dated 10.08.2004 passed by Addl. District

Judge (Fast Track), Anoopgarh in Civil

Original Suit No. 89/2004 Hartej Singh & Anr. Vs. Daya Chand.

DATE OF JUDGMENT: 17th May,2006.

PRESENT

HON'BLE MR.JUSTICE SATYA PRAKASH PATHAK

Mr. R.K. Singhal for appellant.

Mr. S.L. Jain and Mr. R. Bhatnagar for respondents.

BY THE COURT:

This appeal by defendant Dayachand under Sec.96 of the Civil Procedure Code has been filed against the judgment and decree dated 10.08.2004 passed by Addl. District Judge

(Fast Track), Anoopgarh in Civil Original Suit

No. 89/2004 (Hartej Singh & Anr. Vs. Daya

Chand) decreeing the suit filed by plaintiffs for specific performance.

The brief facts of the case, as may be gathered from the file, are to the effect that the defendant-appellant, who is the allottee of agricultral land measuring 24.10 bigha in

Tehsil Annopgarh, to meet his requirements is is said to have agreed to sell his land for a consideration of Rs.5,15,000 on 01.01.1999 and against the sale received Rs.4,65,000/- on that very day executing an agreement in favour of the plaintiffs to that effect and handed over possession of the land in dispute to them. It is alleged that since then the plaintiffs are tilling the land in question and are paying the revenue from time to time. As per the condition of the agreement the balance consideration amount of Rs.50,000/- was to be paid by the plaintiffs at the time of registry, however, the defendant on one pretex or other did not complete his part of transaction and on the fixed date for registery when plaintiffs reached the office of Registrar, Anoopgarh alongwith stamps and balance amount the defendant did not turn up and thereafter demanded additional amount of Rs.3 lacs as the price of land in question soared high and he wanted to sell the land in question to some other person by dispossessing him, therefore, he filed the suit praying for a decree for specific performance of the contract. As against this, the defendant has denied the sale agreement entered into with the plaintiff or receiving Rs.4,65,000/- against the sale consideration rather branded the agreement to be forged one and denied the possession of the plaintiffs, however, stated that in the year 1992 the land in question was given for one year to the father of plaintiff No.1 for temporary cultivation on contract for an amount of Rs.50,000/- and thereafter by forging an agreement the disputed land was got allotted in the name of Jaypal and they are in illegal possession of the land and for that matter in the proceedings before the Special Court III,

Sri Ganganagar by order dated 06.08.1998 directions were issued for the ownership in favour of the defendant. It was also stated by the defendant that the so called agreement was not acceptable in evidence and the land in dispute in the revenue record entered as 'Gair

Khatedari' cannot be a subject matter of sale and therefore also the agreement being in contravention of law is nonest and does not create any right in favour of the plaintiffs.

The defendant objected that the stamp for agreement was purchased at Shree Vijaynagar while the same was got written at Anoopgarh which does not bear attestation either by

Notary or the Tehsildar and the petition-writer has not made the entry of the same in his register and as such the document is forged and fabricated. It was also stated in the written statement by the defendant that the Sub

Divisional Officer by his letter had communicated him to remain present on 15.02.1999 for possession purposes but the possession was not handed over to him and he was told to be informed about it later and thereafter on 30.01.1999 the DCR & R, Talwara informed the defendant to receive possession through Sub Divisional Magistrate, Anoopgarh, which also proves that the agreement was forged and fabricated. The defendant prayed for dismissal of the suit with costs.

The learned trial Court, on the basis of the pleadings of parties framed issues and the parties to the suit adduced their oral as well as documentary evidence. After hearing learned counsel for the parties, the trial

Court decreed the suit in favour of the plaintiffs by its order dated 10.08.2004 and directed the defendant to complete all the formalities concerning the sale of land in dispute in compliance of agreement dated 01.01.1990 and made it clear that the expenses of registry and execution of sale-deed will be borne by the purchaser plaintiffs and after the registry of sale-deed the plaintiffs will pay the defendant the balance amount

Rs.50,000/- and on the defendant's failing to get the sale deed executed and registered, the plaintiffs would be free to get the same done through Court.

Since the present first appeal filed by the defendant is delayed by 416 days, the defendant for the purpose of condoning the delay has moved an application under Sec.5 of the Indian Limitation alongwith the appeal stating therein that he is an old and infirm person of 88 years residing in Himachal

Pradesh, and the information about the suit being decreed on 10.08.2004 was not received by him until notice was received from the executing Court for hearing on 31.10.2005 and thereafter his son was sent to inquire about the matter and he contacted the Advocate then he was informed that a decree for specific performance against the defendant on 10.08.2004 had been passed. It is also stated in the application that the son of the defendant tried to inspect the original file of the trial Court for obtaining cerified copy of the judgment and decree but he was told that the same had been sent to the record room at Sri Ganganagar, so the son of the defendant went to Sri Ganganagar and applied for the certified copy of the judgement and decee as well as other papers on 22.11.2005, which were received by the Advocate at Ganganagar on 28.11.2005 and thereafter making arrangement for court fee and Advocate's fee he came to Jodhpur on 03.01.2005 and got prepared the appeal and the application for condonation of delay. It is submitted that the delay caused was beyond the control of the appellant and therefore the application deserves to be condoned.

In reply to the application, the plaintiff-appellants while denying most of the averments made in the application under Sec.5 for want of knowledge has stated that the appellant cannot be allowed to make such a submission that he had not been informed by the counsel and if the contention as alleged by the appellant is accepted then in every case the defaulting party filing a petition beyond the period of limitation would allege that he had not been informed by his counsel. According to the defendant the delay was attributable to the casual and lethargic approach of the appellant in prosecuting his case, therefore, the application filed for condonation of delay in filing the appeal may be dismissed so also the appeal being barred by limitation with costs throughout.

Heard learned counsel for the parties on the application under Sec.5 of the

Limitation Act.

The learned counsel for the appellant has submitted that on account of the fact that the learned counsel who was conducting the case in the trial Court did not inform the appellant regarding passing of the judgment and decree, therefore, the appeal could not be preferred in time and after the knowledge of the judgment and decree passed by the trial Court, on receipt of the registered notice from the

Executing Court on 31.10.2005, he immediately took steps and ultimately certified copy of the judgment and decree was applied on 22.11.2005 and after its preparation same was delivered to the appellant on 28.11.2005, thereafter on 05.01.2006 the appeal has been filed, therefore, the delay in filing the appeal should be condoned as there exists sufficient reason for condoning the delay. The learned counsel in support of his submission has placed reliance on RLR 2003(3) 429 (Trilok Chand Soni

Vs. State of Rajasthan & Ors), 2005(2) and AIR 2002 SC 1201 (Ramnath Sao Vs. Gobardhan Sao).

The learned counsel, in the last submitted that in case the delay is not condoned and the appeal is dismissed on the ground of limitation then atleast the court-fees which has been paid by him may be ordered to be refunded.

On the other hand, learned counsel for the respondents submitted that delay in this case has not been properly explained and there appears no ground to condone the delay for the reason that there is a long delay of 416 days and that too when participation in the proceedings before trial Court of the appellant and his son was always there and infact after recording the statement of the son of the appellant in the trial Court when no evidence was produced on 29.04.2004, the evidence was closed. The submission of the learned counsel is that simply making an averment in the application under Sec.5 of the Limitation

Act supported by the affidavit that the counsel did not inform him about passing of the judgment or no information was received by him in relation to the judgment and decree, therefore the delay in preferring the appeal requires to be condoned, cannot be said to be reasonable or sufficient ground for condoning the delay. The learned counsel submitted further that even on merit, the appellant has no case because major amount in relation to the sale agreement has already been received by him long back and the trial Court has assigned good reasons for its conclusions. The learned counsel in support of his submission has placed reliance on the cases reported in CDR 953

(Raj.) (DB) 591 State of Rajasthan Vs. Kanta

Devi, WLC 2004(5) 321 Muncipal Board,

Shahpura Vs. Shaukat Hussain & Anr, and WLC 2001 (Raj.) UC 248 Smt. Mamta Devi & Anr. Vs.

Udalveer Singh.

I have considered the submissions made before me.

In the authorities cited by the learned counsel for the appellant the principles which have been laid down are that in proper cases delay should be condoned and the effort of the Court should be to see that cases are disposed of on merit but at the same time it has not been laid down in those authorities that in every case the delay has to be condoned. In one of the cases cited by learned counsel for respondents, the Division

Bench of this Court while deciding the case of

Muncipal Board, Shahpura (supra) has clearly observed that the reason that the litigant could not contact his Advocate or the Advocate did not intimate him cannot be a ground for condoning the delay. In the other case viz.,

Smt. Mamta Devi (supra), the learned Single

Judge of this Court has observed that even if the counsel assured the appellant that intimation about decision would be given then too non-intimation of the decision in time resulting in delay is not sufficient reason for condonation of delay though the claimants may have their remedies against the counsel before the apropriate forum. Thus, if a person does not contact his counsel to know the stage of his case, then for the purposes of condoning delay, this plea taken for condonation of delay has not been considered to be a sufficient ground for condoning the delay. In the above two decisions of this Court, thus, it has been clearly held that it is the duty of the party to know about its case and the reasoning that the counsel did not inform or he could not contact the counsel regarding the stage of the case cannot be a ground for condoning the delay.

After carefully examining the law cited before me by the learned counsel for the parties, I am of the opinion that in a proper case delay in filing the appeal should be condoned but at the same time care should be taken that delay in preferring the appeal is bonafide and there exists a sufficient reson for condoning the delay. It is also to be kept in mind that it is not essential to explain the delay of each and every day in preferring the appeal. I am further of the opinion that the

Court should also be cautious about the fact that while considering the matter regarding condonation of delay, the approach of the Court should be liberal.

Keeping in mind the above, now I propose to examine the present case.

As has been stated while dealing with facts of the case that the suit was filed for specific performance and major consideration in relation to the sale has already been paid and since the defendant failed to perform his part of contract, therefore, it became essential to file suit for specific performance. The Court while considering the matter has found the case of the plaintiff complelely proved. It further appears from the judgment and decree passed by the learned trial Court that after providing several opportunities to the defendants, the evidence of the defendant was also closed on 29.04.2004. Thus, prima facie, as far as the merit of the case is concerned, it cannot be said that the plaintiffs' suit was frivolous or the trial Court committed irregularity while passing the judgment and decree.

Now, I consider the point of limitation in the present case. The position of the admitted facts are that in the trial Court the appellant was represented by his Advocate throughout. It is also not in dispute that on 31.07.2003 statement of appellant's son was recorded, several opportunities were given and ultiately the defence evidence was closed on 29.04.2004. Thus, there is no hesitation in reaching to the conclusion that the defendant in the suit or the present appellant was not aware of the fact that after closing of the evidence the case was to be heard and was to be disposed of finally.

In the above background, the facts of the case go to show that the trial Court passed the judgment and decree on 10.08.2004 and the judgment and decree has been challenged by filing the appeal alongwith application under

Sec.5 of the Limitation Act on 05.01.2006. The certified copy of the trial Court's judgment and decree was applied on 22.11.2005 and the same was delivered on 28.11.2005. It further appears that even after receipt of the certified copy of the judgment and decree the appeal was filed on 05.01.2006 without furnishing a proper explanation. The only ground which has been stated in the application for condonation of delay is that no information was received by the appellant from his Advocate regarding passing of the judgment and decree, therefore, the delay should be condoned. I do not find any weight in the submission of the learned counsel for the appellant that since the Advocate who was conducting the case at the trial Court did not intimate the appellant about the stage of the case and passing of the judgment and decree, therefore, the delay should be condoned for the reason that it is always the duty of the litigant to keep track of his case.

In the instant case, it does not appear that the appellant was not vigilant about the stage of the case as the statement of the son of the appellant was recorded on 31.07.2003 and thereafter the evidence of the defendant was closed on 29.04.2004. Thus, presence of appellant's son finds place before the learned trial Court then to accept the contention that the appellant was not aware of the passing of the judgment and decree as the learned Advocate who was conducting the case did not inform, in my humble opinion, cannot be a sufficient reason for condoning the delay.

There is no affidavit of the Advocate who was conducting the case of the appellant in the trial Court stating on oath that he did not intimate the appellant or whatever the appellant has stated in the application under

Sec.5 of the Limitation Act is correct. Be as it may, such grounds have not been considered to be tenable in the authorities relied upon by the learned counsel for the respondents which clearly held that the reason that the litigant could not contact his Advocate or the Advocate did not intimate cannot be a ground for condoning the delay. The delay in the present matter is of 416 days. It is correct that length of delay may not be a reason for not condoning the delay but at the same time, the ground stated in the application under Sec.5 of the Limitation Act should convince the Court reasonably that the delay which has been explained in the application requires consideration and a meritorious case requires to be considered on merits and should not be thrown out on account of the delay which is reasonably explained. In the present case, the appellant has failed to satisfy this Court that he was prevented by any sufficient cause from filing the present appeal within limitation. The application, therefore, requires to be dismissed and is hereby dismissed.

Resultantly, the appeal filed by the appellant is also dismissed as barred by limitation. However, taking into consideration the entire facts and circumstances of the case and the last submission of the learned counsel for the appellant for refund of court-fees, while accepting the request for refund of court-fees, it is directed that the court fees paid by the appellant for filing the present appeal be refunded to him.

(SATYA PRAKASH PATHAK)J. /jpa


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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