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Shaikh Chand Rahimbhai v. Annasaheb Trimbakrao Bobde .
Factual and Procedural Background
This revision challenges the District Judge's order dated 21-2-1992 dismissing the petitioner's application for condonation of delay in filing an appeal against a decree in Regular Civil Suit No. 172 of 1985 (a suit for specific performance) which was decreed on 12-7-1988 by the Civil Judge, Junior Division, Paithan. The petitioner (defendant in the suit) had been served with summons and had appeared, but failed to file a written statement. The trial Court initially ordered the suit to proceed without a written statement, later permitted the petitioner to file a written statement on condition of depositing costs of Rs. 50, which the petitioner failed to pay. The suit proceeded and judgment was pronounced on 12-7-1988.
The plaintiff filed an execution application (Regular Darkhast No. 32 of 1988) and the execution notice was served on the petitioner on 21-3-1989. The petitioner obtained certified copies of the judgment and decree on 22-10-1990 (application made 1-10-1990), and filed an appeal with an application for condonation of delay on 12-11-1990. The delay in filing the appeal was two years, two months and ten days; the District Judge refused condonation, and the petitioner filed the present civil revision.
Legal Issues Presented
- Whether the delay of two years, two months and ten days in filing the appeal should be condoned.
- Whether the decree in the suit was an ex parte decree under Order IX, Rule 13, C.P.C., or a decree resulting from absence of a written statement (Order VIII, Rule 5 or Rule 10, C.P.C.).
Arguments of the Parties
Petitioner's Arguments
- The petitioner treated the decree as ex parte and relied on precedents (cited as Baburao Wankhede v. Sewa Sahakari Sanstha and Collector, Land Acquisition, Anantnag v. Mst. Katiji) to support condonation of the delay.
- The petitioner offered reasons for delay including sickness of himself and a relative, and an asserted advice by his Advocate that steps should be taken only after judgment was pronounced.
The opinion does not contain a detailed account of the respondent's legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Baburao Wankhede v. Sewa Sahakari Sanstha, reported in 1989 (2) Bom. C.R 15 : 1989 Mah. L.R 1144 | Condonation of long delay where special circumstances (confusion over jurisdiction) existed; in that case delay of 10 years condoned due to contradictory observations regarding jurisdiction. | The court distinguished Baburao: the facts here did not involve any dispute as to jurisdiction of the trial Court, so the exceptional basis for condoning long delay in Baburao was absent. |
| (Collector, Land Acquisition) Anantnag v. Mst. Katiji, reported in (1987) 2 SCC 107 : A.I.R 1987 S.C 1353 | Guidelines for considering condonation of delay — courts should avoid rigid technicality, aim for substantial justice; presumption of deliberate delay may not always apply; total period of delay may be explained even if day-to-day explanation is not given. | The court accepted that Anantnag's guidelines must be considered but held that, even applying them, the petitioner's facts did not justify condonation: the petitioner had multiple opportunities, failed to act, gave uncorroborated excuses (no medical certificates), and the delay appeared deliberate or negligent. |
Court's Reasoning and Analysis
The court undertook a fact-focused analysis applying the Anantnag guidelines while distinguishing Baburao on its facts. Key points in the court's reasoning were:
- Service and appearance: The petitioner was served with summons and had filed appearance; therefore the decree was not the result of complete non-participation in proceedings (i.e., not an ex parte decree under Order IX, Rule 13, C.P.C.).
- Written statement and costs: The petitioner repeatedly failed to file a written statement despite repeated listings; when permission to file it was granted on condition of paying Rs. 50 costs (order dated 3-9-1986), the petitioner failed to deposit the costs despite further time being given.
- Conduct of proceedings: The matter was adjourned and fixed for evidence; plaintiff sought permission to lead evidence by affidavit on 18-8-1987; judgment was pronounced on 12-7-1988. The petitioner did not take timely steps thereafter.
- Execution and notice: The plaintiff filed an execution petition and the petitioner was served with notice on 21-3-1989. The petitioner applied for certified copies on 1-10-1990, received them on 22-10-1990, and filed the appeal (with condonation application) on 12-11-1990.
- Assessment of excuses: The petitioner asserted illness (his own and a relative's) and reliance on counsel's advice; the court noted absence of medical certificates in either trial or appellate courts and found it improbable that an Advocate would advise not to take steps while the matter was pending and before judgment was delivered. Thus the asserted explanations lacked corroboration.
- Deliberateness or negligence: Considering the chronology (including long inaction after execution notice and the relatively simple act of obtaining certified copies), the court concluded the delay was either deliberate or caused by gross negligence rather than an acceptable, justifiable excuse.
- Nature of the decree: Because the defendant failed to file a written statement, the decree resulted from failure to contest (Order VIII, Rule 5 or Rule 10) rather than being an ex parte decree under Order IX, Rule 13; the defendant had been present and engaged counsel at stages of the proceedings.
- Finality and execution: The decree for specific performance had been fully executed (sale deed executed through the Court's Superintendent). Recovery of costs was uncertain from the record but was not material given execution of the sale deed.
Holding and Implications
HOLDING: The Civil Revision Application is dismissed. The court discharged the rule and made no order as to costs.
Implications for the parties:
- The District Judge's refusal to condone the delay in filing the appeal is upheld.
- The decree for specific performance stands and has been executed; little or no further relief between the parties remains materially available from this revision.
- The opinion does not purport to lay down any new legal precedent beyond applying and distinguishing existing authorities; no broader novel legal rule is announced.
V.K Barde, J.:— This is a revision petition against the order passed by the learned District Judge, Aurangabad, on 21-2-1992 in M.A.R.J.I No. 242 of 1990. The present petitioner was the defendant in Regular Civil Suit No. 172 of Page: 1141985 filed in the Court of Civil Judge, Junior Division, Paithan which was a suit for specific performance of contract for sale. The suit came to be decreed on 12-7-1988 and thereafter the petitioner filed appeal against the judgment and decree. There was delay of two years, two months and 10 days in filing the appeal and, therefore, application for condonation of delay was filed. The learned District Judge dismissed that application. Hence, the present Civil Revision Application.
2. Heard the learned Counsel for the petitioner and the respondent. The petitioner has filed on record the copy of the application for condonation of delay filed by him before the District Court and in that application, all the details regarding how the suit proceeded are mentioned. It is admitted fact that the suit summons was served on the petitioner and he even had filed appearance before the Court. So, even if it is contended that it was an ex parte decree, that is not the position. That was not a decree covered under Order IX, Rule 13, C.P.C The petitioner failed to file written statement and, therefore, there was an order by the learned Civil Judge to proceed with the suit without written statement. But before the plaintiff could lead evidence, the petitioner filed applications seeking permission to file his written statement. That application was allowed on condition to pay costs of Rs. 50. However, the petitioner failed to pay the costs of Rs. 50 and, ultimately, the suit had to proceed without written statement. This application to allow the written statement was granted on 3rd September, 1986. Then the Advocate for the petitioner filed application on 20-11-1986 seeking time to deposit the costs. But even thereafter, the costs were not deposited. The matter was pending before the Court and it was fixed from time to time for recording evidence. On 18-8-1987, the plaintiff filed application seeking permission to lead evidence by way of affidavit. The petitioner has contended that thereafter, his Advocate told him that the matter was fixed for judgment and they could take steps only after the judgment was pronounced. The judgment was pronounced on 12-7-1988. It appears that even thereafter the present petitioner did not take any steps.
3. The plaintiff then filed Regular Darkhast No. 32 of 1988 for execution of the decree and the notice of the execution petition was served on the petitioner on 21-3-1989 and thereafter the petitioner filed application for certified copies of the judgment and decree on 1-10-1990 and obtained the copies on 22-10-1990. He then filed appeal and application for condonation of delay on 12-11-1990.
4. The learned Counsel for the petitioner relied upon the ruling of this Court in the matter of (Baburao Wankhede v. Sewa Sahakari Sanstha), reported in 1989 (2) Bom. C.R 15 : 1989 Mah. L.R 1144, and also the ruling of the Apex Court in the matter of (Collector, Land Acquisition, Anantnag v. Mst. Katiji), reported in (1987) 2 SCC 107 : A.I.R 1987 S.C 1353.
5. So far as the decision of this Court in the matter of Baburao (supra), is concerned, it is to be noted that there was the question of jurisdiction of the Co-operative Court and it was pointed out that contradictory observations were made by the Co-operative Court to find out whether the petitioner before the Court was amenable to the jurisdiction of the Co-operative Court, and in such circumstances, the delay of 10 years was condoned by this Court. The facts in the present matter are not such. There is no dispute regarding the jurisdiction of the trial Court.
6. The guidelines indicated by the Apex Court in the matter of Collector of Anantnag (cited supra) are always to be taken into consideration while considering the application for condonation of delay. It is true that the matter should not go merely on technicalities and substantial justice has to be done. It also may be true in certain cases that presumption of delay as occasioned deliberately would not stand. It is also true that everyday's delay, means delay by day to day, is not to be explained and if the petitioner gives sufficient cause of a total period of delay, that can be considered. But even after applying all those principles laid down by the Apex Court, I do not think that in the present case, there are circumstances to condone the delay. The petitioner was given ample opportunity by the trial Court. He failed to appear any time though he had engaged Advocate. He failed to file written statement. Even then he was granted permission to file written statement on imposing costs. He failed to deposit those costs. Even then the time was extended. Even thereafter, the matter was not decided immediately, but was pending before the trial Court. The Advocate engaged by the petitioner was there to look after the matter. However, the petitioner failed to take any proper steps till the decision in the matter. No doubt, it is contended that some time his relative was sick, and some time, he himself was sick. But it is to be noted that no medical certificate was produced either in the trial Court or in the Appellate Court in support of this contention. It is not the case that the petitioner was, not aware of the proceedings, but he is now taking a stand that he was advised not to move the matter till the decision was given by the Court. It is really difficult to believe that such advice would be given by the Advocate when the matter was pending before the trial Court and decision was not given in the matter, which was known to the Advocate.
7. So, this is a case where either the delay is deliberate or the matter is handled in most negligent manner by the petitioner. There is no question of presuming that the delay was caused deliberately. The facts themselves speak that the delay was deliberate, because even after the notice regarding, execution petition, which was received by the petitioner on 21-3-1989, the appeal was preferred on 12-11-1990. This was too long a time for the petitioner to say that he was sick and he had to collect the papers and so on. No papers were to be collected. Only copies of the judgment and decree were to be obtained for filing the appeal. In such circumstances, the application for condonation of delay was rightly rejected by the learned District Judged.
8. Here, it also must be noted that the petitioner is treating the decree passed against him as ex parte. But that is not the position. The petitioner was properly served with the suit summons. He had filed appearance in the Court. He had sought adjournment before the Court. The matter was fixed time and again for filing written statement and he failed to file the written statement. So when there was (no) written statement from the defendant, the present petitioner, it has to be considered that he had admitted all the averments made in the plaint, and in such circumstances, the judgment and decree may be either under Order VIII, Rule 5, or, Order VIII, Rule 10, C.P.C, and not an ex parte decree covered under Order IX, Rule 13, C.P.C So, it was not an ex parte decree. It is a decree passed because the defendant did not raise any defence. If all these things are taken into consideration, the revision is devoid of substance. One more circumstances also has to be noted that the decree for specific performance is fully executed. However, the Counsel for both sides are not able Page: 116to make a specific statement, as to whether decree for recovery of costs is duly executed or not. But, the recovery of costs is not very material aspect of the case. Material aspect is execution of sale deed, which is got executed by the Court through the Superintendent of the Court, and, in such circumstances, no purpose will be served any more.
9. Hence, this Civil Revision Application stands dismissed. Rule discharged. No order as to costs.
10. Revision dismissed.
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