REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 2395 OF 2008
IMPROVEMENT TRUST, LUDHIANA .. APPELLANT(S)
VERSUS
UJAGAR SINGH & ORS. .. RESPONDENT(S)
WITH
CIVIL
APPEAL
NOS.
2397 OF
2008
ORDE
R
1
Heard counsel on either side at length. Records perused.
2
Even 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 this case.
3
Land 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
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.
2
The property was put to an auction sale on 12/8/1992.
Respondent 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.
3
The 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.
As a necessary consequence thereof appellant's
objections came to be dismissed in default due to non-
appearance.
5
Mr. P.K. Jain, Advocate used to appear for the appellant-
Trust, but did not appear on the above mentioned dates.
The 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
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.
12 The 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.
Consequently the appeal was also dismissed.
14 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.
15 Respondent 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.
3
Learned 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.
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.
2
Even 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 time.
Had there 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
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 not.
Each case 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.
2
After 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
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.
2
Apart 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 on 20/7/2010.
Being an 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
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
through out. In the light of this order, other civil
appeal No. 2397/2008 stands allowed to the aforesaid
extent only.
..................J.
(DEEPAK VERMA)
...................J.
(K.S. RADHAKRISHNAN)
New Delhi,
June 9, 2010.