Telangana High Court
Lambada N. Nandu vs G. Ganesh Kumar And 3 Others on 7 November, 2022
Author: M.Laxman
Bench: M.Laxman
THE HON'BLE SRI JUSTICE M.LAXMAN
I.A.No.2 of 2022
In/and
APPEAL SUIT No.136 of 2022
JUDGMENT:
1. I.A.No.2 of 2022 is filed to condone the delay of 4995 days in filing the present appeal.
2. This appeal suit is filed challenging the ex-parte judgment and decree dated 29.09.2008, passed in O.S.No.136 of 2008, by the learned Principal District Judge, Ranga Reddy District, L.B.Nagar, Hyderabad, whereby, the trial Court has decreed the suit filed by the respondent No.1 herein for specific performance of agreement of sale cum General Power of Attorney dated 17.01.2008 and for permanent injunction.
3. The respondent No.1 herein is the plaintiff, the appellant herein and respondents Nos.2 to 4 herein are the defendants in the said suit. For the sake of convenience, the parties hereinafter are referred to as they are arrayed in the suit.
4. The plaintiff has filed the suit for specific performance to enforce the agreement of sale cum GPA dated 17.01.2008 executed by the defendants in favour of the plaintiff to convey the suit lands. 2 When the sale deed was not executed, the suit was filed immediately in the year 2008 and it was decreed in the year 2008 itself. Aggrieved by the same, present appeal suit is filed by the defendant No.3.
5. The main grievance of the defendant No.3 is that he was not served with any summons in the suit and they came to know about the suit proceedings and ex-parte decree only when the sale deed obtained from other family members, who are also parties to the agreement. On knowing the said sale transactions, he verified and obtained certified copy of documents including the ex-parte decree proceedings. After obtaining the opinions from the various counsel, the present application in I.A.No.2 of 2022 is filed to condone the delay of 4995 days in filing the above appeal.
6. The learned counsel for the plaintiff has submitted that agreement of sale - cum - GPA was executed on 17.01.2008 by the defendants in favour of the plaintiff. According to the plaintiff, the defendants had to execute the sale deed by 05.02.2008. When the sale deed was not executed, the plaintiff has filed the said suit in O.S.No.136 of 2008 for specific performance and permanent injunction. Further, he submitted that the plaintiff has denied the claim of the defendant No. 3 that no notice was served to him with 3 regard to the execution of sale deed and stated that all the family members are aware of the suit proceedings. The plaintiff has paid the entire sale consideration and no obligation on his part to discharge the terms under the agreement. Upon execution of agreement, the defendants have to register the sale deed, but according to him, there is no proper explanation for delay.
7. Heard the learned counsel on either side and perused the materials placed on record.
8. Learned counsel for the defendant No.3 has contended that defendant No.3 was kept in dark about the suit proceedings and there was a fraud in obtaining the decree. He also contended that the present appeal has been filed after knowing the execution of sale deed by other family members, who were also executants of the agreement of sale. The date of knowledge has to be taken for computing limitation.
9. Learned counsel for the plaintiff stated that the decree was passed after proper service only and no material has been placed to show that without issuing summons, the defendants were set ex- parte. Accordingly to him, the explanation offered by the defendant No.3, to condone the delay is improper and insufficient. 4
10. The Apex Court in Esha Bhattacharjee v. Mg. Commit. of Ranghunathpur Nafar Academy1 culled out the principles relating to condonation of delay and they read as under:
"21. From the aforesaid authorities the principles that can broadly be culled out are:
21.1 i) There should be a liberal, pragmatic, justice-oriented, non-
pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. 21.2 ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation. 21.3 iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
21.4 iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
21.5 v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.6 vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. 21.7 vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
21.8 viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. 1 (2013) 12 SCC 649 5 21.9 ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
21.10 x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
21.11 xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
21.12 xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
21.13 xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: -
22.1 a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.
22.2 b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.
22.3 c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
22.4 d) The increasing tendency to perceive delay as a non-
serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters."
6The considerations for condoning the delay in respect of inordinate delay and the delay for short duration are different. In the former case, the doctrine of prejudice is applied, and in the latter case, it cannot be applied. The ultimate goal of the Courts is to determine the rights of the parties on merits, but not to deny the justice on technicalities.
11. In the present case, the facts disclose that there is no serious dispute with regard to the execution of agreement of sale in favour of the plaintiff by the defendants. It is also not in dispute that other family members except the defendant No.3, have executed and registered the sale deed in compliance of the ex-parte decree.
12. The only grievance of the defendant No.3 is that he came to know about the suit proceedings only when the other family members executed the sale deed.
13. It is not the case of the plaintiff that agreement of sale obtained in fraud and it is also not his case that sale consideration is to be obtained under the agreement. As per the impugned judgment and decree, the sale agreement was executed on 17.01.2008 and the sale deed was to be executed by 05.02.2008. When such a sale deed is not executed immediately after 20 or 30 7 days, the suit has been filed by the plaintiff. There is only delay in taking up the execution petition. The execution petition is filed after nearly thirteen (13) years from the date of obtaining decree. The reason for such an inordinate delay is not known. The fact is that all the family members, who are parties to the agreement of sale deed, have executed registered sale deed in compliance of the decree, except the defendant No.3. Even the explanation does not speak about how fraud has been played in serving summons upon them. No material has been placed to show that there was any fraud in affecting the service on the part of the plaintiff or any of the Court staff, who are involved in the service process. Without any such details of claim of fraud, the decree obtained cannot be said to be result of fraud.
14. The facts further show that the sale agreement was executed by all the family members except the defendant No.3. This execution of agreement of sale is not in dispute. The entire sale consideration has also been paid. Since the regular sale deed did not affected immediately, the suit has been filed. It shows that there are all requirements of the readiness and willingness on part of plaintiff. Even by seeing the merits of the case also it appears that if summons or notice is to be served, no result would yield, except protracting the litigation. There is an inordinate delay of 4995 days. 8 When such inordinate delay is there, the Court must be conscious in condoning the delay and proper explanation must come forward from the party, who is seeking condonation of delay.
15. In this case, no details have been given with regard to how the fraud has been committed. Apart from that even after getting knowledge about the suit proceedings, that is from July, 2021 till the appeal is filed, there is a time gap of eight (08) months, for this, appropriate explanation is also not offered.
16. This Court feels that no proper explanation has been given to condone the delay. Therefore, condone delay application is liable to be dismissed.
17. In the result, I.A.No.2 of 2022 is dismissed. Conseqeuntly, A.S.No.136 of 2022 is dismissed. No costs.
As a sequel, miscellaneous petitions, if any pending, shall stand closed.
______________________ JUSTICE M.LAXMAN 07.11.2022 Dua/Gms 9 THE HON'BLE SRI JUSTICE M.LAXMAN I.A.No.2 of 2022 In/and APPEAL SUIT.No.136 of 2022 07.11.2022 Dua/Gms