Trust, Ludhiana Vs. Ujagar Singh & Ors.  INSC 429 (9 June 2010)
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 2395 OF
2008 IMPROVEMENT TRUST, LUDHIANA .. APPELLANT(S) VERSUS WITH
2008 O R D E R 1 Heard counsel on either side at length. Records perused.
though both sides had cited several decisions of this Court on the scope and
application of Section 5 of the Limitation Act, but it is neither necessary nor
required to deal with those cases in the peculiar facts and circumstances of
belonging to Respondent Nos. 1 to 4 was acquired by the appellant Improvement
Trust, Ludhiana, for development scheme popularly known as "550 Acres Scheme".
Reference Court had passed the Award and fixed the amount of compensation at
rupees 4,27,068.20 paise together with interest at the rate of 9% per annum
from the date of the issuance of the notification in favour of Respondent Nos.
1 to 4. The appellant did not deposit the amount. Respondent Nos. 1 to 4 had to
approach the Executing Court for recovery of the amount awarded. The property
described as Khewat No.867 Khautani No.971 Khasra No.272 admeasuring 7K-18M
entered in jamabandi for the year 1988-89 in village Jabaddi No.160 Tehsil and
District 4 -2- 1 Ludhiana was attached for realisation of the decretal amount.
Later a notice under Order 21 Rule 66 of the Code of Civil Procedure
(hereinafter shall be referred to as `C.P.C.') was stated to have been issued
to the appellant. However, despite service of notice, none appeared on behalf
of the appellant /judgment debtor.
property was put to an auction sale on 12/8/1992.
No. 5 herein, M/s. Jagan Singh and Company (hereinafter shall be referred to as
`the Company') offered Rs.22,65,000/-, and thus was declared as the highest
bidder. Sale was knocked down in its favour, and later confirmed in its favour.
appellant then woke up from its slumber and filed objections under Order 21 Rule
90 CPC raising various grounds. Executing Court then framed issues, reproduced
by the learned Single Judge in the impugned order. The case was thereafter
fixed for recording of the evidence of 4 judgment-debtor on 19/3/1993,
17/4/1993, 8/5/1993 and 29/5/1993. However, on the aforesaid dates none
appeared on behalf of the appellant. Consequently, the evidence of
appellant/judgment debtor was closed.
necessary consequence thereof appellant's objections came to be dismissed in
default due to non- appearance.
P.K. Jain, Advocate used to appear for the appellant- Trust, but did not appear
on the above mentioned dates.
order-sheet dated 29/5/1993 reproduced in the impugned order passed by the
learned Single Judge reflected the same. Case was posted for confirmation of
sale on 5/6/1993, again there was no appearance and the sale was confirmed in
favour of respondent No.5. It is reported pursuant thereto sale deed was
executed in its favour 6 7 8 9 10 -3- 11 through court. Out of the bid amount of
Rs.22,65,000/- the awarded amount due to respondents 1 to 4 was released, and
remaining is lying in deposit with the Executing Court.
appellant thereafter filed miscellaneous appeal before the District Judge,
Ludhiana, challenging the correctness propriety and validity of the orders
passed on 29/5/1993 and 5/6/1993, made over to Additional District Judge,
Ludhiana. Said appeal was barred by limitation by two months and few days,
exact delay has not been reflected in 13 any of the orders. But after going
through the files it appears that delay was for about two months and few days.
An application under Section 5 of the Limitation Act was filed to condone delay
but was dismissed by the Appellate Court stating therein that no good and
sufficient grounds were shown for condonation of delay.
the appeal was also dismissed.
Thereafter, appellant under some mistaken advice filed execution second appeal
in the High Court of Punjab and Haryana at Chandigarh registered as Execution
Second Appeal No. 820 of 1994. On objections being raised with regard to its
maintainability, in the light of the specific bar created under Section 104 of
the CPC, learned Single Judge converted the appeal into civil revision and
proceeded to decide as such.
No.5 contended that no error was committed by the Executing Court in dismissing
the appellant's application for setting aside the sale. Similarly the first
Appellate Court also committed no error in dismissing the Appellant's appeal as
no good and sufficient cause were shown for condoning delay. The objections
raised by respondent No.5 found favour by the 1 -4- 2 learned Single Judge of
the High Court and the appeal/revision of the appellant was dismissed on
9/5/2003. In the light of the aforesaid orders the objections preferred by
appellant herein purportedly filed under Order 21 Rule 90 of the CPC met with
the fate of dismissal. Appellant also filed an application for review of the
order dated 9/5/2003 passed by High Court under Order 47 Rule 1 of the CPC but
was also dismissed on 8/7/2004, against which C.A. No. 2395/2008 has been filed
before this Court. Since parties are same and common issues arise for
consideration they are heard analogously and disposed of by a common order.
senior counsel appearing for appellant Mr. Salil Sagar with Mr. Arun K. Sinha,
contended that appellant had been contesting the matter in right earnest right
from the very beginning and had implicit faith and confidence in his Advocate
Mr. P.K. Jain, who had been appearing for the appellant not only in this case
but in several other cases. According to him there was no reason to doubt that
he would not appear on various dates of hearing and then would not even inform
the appellant about the progress of the case. In other words, it has been
contended that whatever best was possible to be done by the appellant that had
been done, therefore even though there has been some delay, on account of
non-communication of the passing of the impugned order challenged in appeal,
delay should have been condoned and the matter should not have been thrown at
the threshold. To show its bonafides various order-sheets passed by Trial Court
and the Executing Court have been brought to our notice. The envelop maintained
by Mr. P.K.Jain, Advocate, for keeping the brief, has been filed to show that
dates of hearing were mentioned therein.
-5- 1 On
the other hand, Mr. Vijay Hansaria, learned senior counsel appearing for
respondent No.5, with his polite yet usual vehemence submitted that list of
dates as filed by the Company would show and reveal the callous and negligent
attitude of the appellant or its Advocate, therefore no indulgence should be
shown to it. It was contended that the indifferent attitude of the appellant in
prosecuting the matter had not come to an end and Appellant had learnt no
lessons from its previous defaults.
though appeal was dismissed by First Appellate Court on the ground of delay,
stood confirmed by the High Court but even the Special Leave Petition was delayed
by 258 days in refiling there was further delay of 90 days. No doubt it is true
that this Court after considering the appellant's application was pleased to
condone delay and leave was granted. But this has been argued by Mr. Vijay
Hansaria to show the conduct, behaviour and attitude of the appellant in
prosecuting the matter.
3 Be that
as it may, we are of the opinion that the delay in filing the first appeal
before District Judge, Ludhiana, for setting aside the sale has not been so
huge warranting its dismissal on such hypertechnical ground. In fact, according
to us, appellant had taken all possible steps to prosecute the matter within
been an intimation sent to the appellant by Mr. P.K. Jain, its erstwhile
Advocate, and if even thereafter appellant had acted callously then we could
have understood the negligent attitude of the appellant but that was not the
case here. No sooner the appellant came to know about the dismissal of its
objection filed before the Executing 4 5 -6- 1 Court, under Order 21 Rule 90 of
the CPC it made enquiries and filed the appeal. While considering the
application for condonation of delay no straight jacket formula is prescribed
to come to the conclusion if sufficient and good grounds have been made out or
has to be weighed from its facts and the circumstances in which the party acts
and behaves. From the conduct behaviour and attitude of the appellant it cannot
be said that it had been absolutely callous and negligent in prosecuting the matter.
Even though Mr. Vijay Hansaria appearing for the respondent No.5 has argued the
matter at length and tried his best to persuade us to come to the conclusion
that no sufficient grounds made out to interfere with the concurrent findings
of facts but we are afraid, we are not satisfied with the line of arguments so
adopted by the counsel for respondent No.5 and cannot subscribe to the same.
all, justice can be done only when the matter is fought on merits and in
accordance with law rather than to dispose it of on such technicalities and
that too at the threshold. Both sides had tried to argue the matter on merits
but we refrain ourselves from touching the merits of the matter as that can
best be done by the Executing Court which had denied an opportunity to the
appellant to lead evidence and to prove the issues so formulated.
3 In our
opinion, ends of justice would be met by setting aside the impugned orders and
matter is remitted to the Executing Court to consider and dispose of
appellant's objections filed under Order 21 Rule 90 of CPC on merits and in
accordance with law, at an early date. It is pertinent to point out that unless
malafides are writ large on the conduct of the party, generally as a normal -7-
1 rule, delay should be condoned. In the legal arena, an attempt should always
be made to allow the matter to be contested on merits rather than to throw it
on such technalities.
from the above, appellant would not have gained in any manner whatsoever, by
not filing the appeal within the period of limitation. It is also worth
noticing that delay was also not that huge, which could not have been condoned,
without putting the respondents to harm or prejudice. It is the duty of the
Court to see to it that justice should be done between the parties.
3 For the
aforesaid reasons the impugned orders passed by Appellate Court, and order
passed by the High Court, are hereby set aside and quashed. As a consequence,
the matter stands remitted to the Executing Court for deciding the appellant's
application filed under Order 21 Rule 90 of CPC at an early date on merits.
Since there are only two contesting parties to the litigation that is to say
the appellant and respondent No.5, both would appear before the Executing Court
old case an endeavour would be made by the Executing Court to take up the case
as far as possible, on day-to-day basis and no party would seek an undue
adjournment in the matter. We make it clear that we have expressed no opinion,
on the merits of the matter and any observation made herein would not be
construed as an expression of opinion on merits.
4 We are
conscious of the fact that respondent No.5 has been put to inconvenience and
harassment as admittedly it had deposited a huge amount of Rs.22,65,000/- in
the year 1992 but has not been able to get any fruits thereof till date. Therefore
the appellant's appeal is allowed subject -8- 1 to payment of Rs.50,000/-
(Rupees fifty thousand) to respondent No.5 within three weeks hereof. Payment
of cost is condition precedent, without which the appellant would not be
allowed to prosecute its objections. The appeal therefore stands allowed to the
aforesaid extent. The appellant to bear the cost throughout. In the light of
this order, other civil appeal No. 2397/2008 stands allowed to the aforesaid
..................J. (DEEPAK VERMA)
...................J. (K.S. RADHAKRISHNAN)
June 9, 2010.