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2013 DIGILAW 871 (BOM)

Bharat Keshav Pednekar v. Ashok Kumar Yadav

2013-04-18

U.V.BARRE

body2013
JUDGMENT U.V. Bakre, J. Heard Mr. Naik, learned Counsel, on behalf of the applicants and Mr. Mendes, learned Counsel appearing on behalf of the respondent No.1. They have argued at length. This is an application for condonation of delay of about 850 days in filing appeal against the Judgment, Order and Decree dated 29/01/2009, passed by the learned Civil Judge, Senior Division, Vasco-da-Gama, in Special Civil Suit No. 29/2008/B. 2. By the said Judgment and Decree, the suit filed by the plaintiff (respondent No.1), which was for specific performance of agreement and other consequential reliefs, has been decreed. The applicants were defendants No. 1 and 2 in the said suit and they have been directed to execute a sale deed of the approved plot with bungalow admeasuring 332 square metres as described in the plaint for the full consideration of Rs. 22 lakhs and to register the sale deed, in favour of the plaintiff. Respondent No.2, who is the son of the applicants, was the defendant no 3 in that suit. The said plot with bungalow is situated within the jurisdiction of Chikalim Village Panchayat, Taluka of Mormugao, District South Goa, and according to the respondent No.1, the respondent No.2, as power of attorney holder of the applicants, had entered into an agreement dated 10/12/2007 for sale of the said plot with bungalow, in favour of the respondent No.1. 3. The application is supported by affidavit of the applicant No.1. A medical certificate issued by Dr. D.V. Talauliker has been produced. The respondent No. 1 has filed affidavit-in-reply vehemently opposing the application. The applicant No.1 has then filed additional affidavit dated 21/3/2012 and has produced the Roznama in Execution Application No. 3/08/A. The applicants have filed affidavits of Advocate Alkesh R. Pednekar and Advocate Pravin Kuncolienkar. Since the allegations made in the affidavits filed by the applicants in support of the application were disputed by the learned Counsel for the respondent No. 1, a commissioner was appointed to record evidence of the witnesses of both parties. Accordingly, the applicants examined the applicant No. 1 as AW.1 and he produced various documents. The applicants then examined Advocate Alkesh Pednekar. The respondent No. 1 did not examine any witness. 4. Summons for settlement of issues in the said Special Civil Suit No. 20/2008/13 were issued on 26/6/2008. On 17/7/2008, learned trial Judge was on maternity leave. Accordingly, the applicants examined the applicant No. 1 as AW.1 and he produced various documents. The applicants then examined Advocate Alkesh Pednekar. The respondent No. 1 did not examine any witness. 4. Summons for settlement of issues in the said Special Civil Suit No. 20/2008/13 were issued on 26/6/2008. On 17/7/2008, learned trial Judge was on maternity leave. The matter was adjourned for written statement to 12/8/08. Advocate Alkesh Pednekar filed Vakalatnama for the defendants on 12/8/2008. Immediately, on the next date i.e. on 22/8/2008, as the defendants as well as their Advocate was absent, the matter was ordered to proceed ex parte and was adjourned for filing affidavit-in-evidence of the plaintiff to 22/9/08. However, thereafter, on 22/9/08, 3/11/08, 15/11/08 and 28/11/08, i.e. on four occasions, the matter was adjourned, on one ground or the other only for filing affidavit-in-evidence of the plaintiff. The suit had proceeded ex parte against the defendants, without even written statement being filed by them. The impugned Judgment, order and decree are ex parte. The certified copy of the impugned Judgment and Decree was applied for on 27/7/2011 date given for delivery was 29/7/2011 and it was received on 29/7/2011. 5. I have gone through the application, affidavits, documents and the evidence recorded by the Commissioner appointed by this Court. 6. The point for determination is whether the applicants can be held to have offered tangible/ acceptable explanation for delay in filing appeal. 7. Mr. Naik, learned Counsel, appearing on behalf of the applicants submitted that the defendants were old and ill persons, defendant No.1 being about 64 years old when the suit was filed. He further submitted that Advocate Alkesh Pednekar, who is related to them had assured that he would do all the requisite things in the said proceedings and hence naturally, the defendants had reposed confidence in their said Advocate. According the learned Counsel, there were domestic crisis on account of sickness of the applicant No.2, in August-September, 2008 and she was hospitalized almost for about a month in Talaulikar Nursing Home. The applicants have filed certificate of Dr. D.V. Talauliker certifying that the applicant No.2 was under his treatment from 28th August 2008 to 30th September 2008 for lumbago and difficulty to walk and she was advised bed rest. The applicants have filed certificate of Dr. D.V. Talauliker certifying that the applicant No.2 was under his treatment from 28th August 2008 to 30th September 2008 for lumbago and difficulty to walk and she was advised bed rest. Learned Counsel pointed out from the application supported by affidavit of the applicant No. 1 that thereafter, the applicant No.2 was d discharged from the hospital, but her health deteriorated and had to be again admitted to the same hospital for further period of 12 days and thereafter had to be taken to a Doctor, from out of Goa for treatment as there was mass appearing in her ovary. It is submitted that on account of the above domestic crisis and health issues, the applicants could not personally remain present before the Court. Learned Counsel further pointed out that the advocate on record had informed the applicants that their presence was not necessary and that the matter would not be taken up at least for six months until the presiding Officer, who was on maternity leave, effectively resumed duties. In this regard, the contention of Mr. Mendes, learned counsel for the respondent No. 1 is that Dr. Talauliker is a General Practitioner and that in D.V. Talauliker Hospital, there are specialist doctors for orthopaedic treatment. Mr. Mendes further contended that no prescriptions and medical bills are produced. According to him, therefore, the medical certificate is not genuine. The respondent No. 1 did not wish to cross-examine Dr. Talauliker. 'There is no reason for this Court to disbelieve the certificate of the Medical Practitioner. Considering the statement made by the applicant No. 1 in his affidavit, merely because other supporting evidence is not produced, that need not be taken as ground sufficient to disbelieve the facts as stated by the applicants. The applicants cannot gain anything by deliberately allowing the suit to proceed ex parte. According to the applicants, on account of negligence of their Advocate namely Alkesh Pednekar who is their relative and on account of domestic crises and sickness of applicant No.2, the delay occurred which was unintentional and not deliberate. It is also alleged that disputes commenced between the applicants and respondent No.2, who is their' son who virtually abdicated the responsibilities and placed the applicants in very embarrassing and helpless situation. It is also alleged that disputes commenced between the applicants and respondent No.2, who is their' son who virtually abdicated the responsibilities and placed the applicants in very embarrassing and helpless situation. On 24th February, 2009, the respondent No.1 filed Execution Application No. 3/09/A, in respect of the said ex parte Decree. The applicants received notice, in execution proceeding, from the Court of Civil Judge. Senior Division, in February-March, 2009. The above facts as put on record by way of affidavit and tested by means of lengthy cross-examination, do reasonably explain the delay till the applicants received the notice in the Execution Application. 8. Learned Counsel for the applicants has submitted that the applicants. Therefore, contacted their Advocate, Aklesh Pednekar, who feigned surprise and promised to check the records and inform the applicants. It is submitted that subsequently, Advocate Pednekar informed them that appropriate application shall be made by him to get the decree set aside. Learned Counsel contended that the applicants placed reliance upon their Advocate who sometimes would tell them that the respondent No., 2 had approached him but subsequently complained about the respondent No.2. It is further alleged that in December, 2009 the said Advocate told them that they should personally remain present before the trial Court, in Execution proceedings, and request the Judge to set aside the Judgment and Decree. It is stated that the applicants, despite their ill health, accordingly personally remained present before the trial Court and requested that the Judgment and Decree dated 29/01/2009 be set aside. Learned counsel for the applicants submitted that, according to the applicants, at that time the learned Judge made some statement in English and talked to their Advocate which the applicants did not understand, after which their Advocate told then1 that he would be making necessary application for setting aside the judgment and decree. Learned Counsel for the applicants, during the course of arguments, has produced before this Court, an application filed by Advocate Alkesh Pednekar, in Special Execution Application No. 3/2009/A, on behalf of the applicants, on 4/12/2009 before the executing Court for setting aside the ex parte Decree. However, it is seen that on the same day the executing Court has passed an order that in case the party is aggrieved by the order, the party to challenge the same. However, it is seen that on the same day the executing Court has passed an order that in case the party is aggrieved by the order, the party to challenge the same. That shows the bonafides of the applicants in trying their best to get the ex parte decree set aside, in the execution application itself. 9. The applicants have stated that their Advocate assured them that he would be taking necessary steps to get the ex parte decree set aside and they were pursuing the matter with their Advocate. Subsequently, according to the applicants, when in July, 2011, the applicants received another notice in the execution proceedings, they made attempts to contact their Advocate but the said Advocate started avoiding taking telephone calls of the applicants and ultimately told them that he would no longer appear for the applicants and called upon them to collect the files/case papers. It is pointed out by learned Counsel for the applicants that thereafter when the applicants contacted said Advocate for case papers, said Advocate stated that he is searching for the case papers and would personally hand over the same to them and therefore the applicants had to wait. They thereafter approached Advocate Pravin Kuncolienkar to attend hearing on 27/07/2011, who accordingly attended and also applied for certified copies of the case papers. According to the applicants, as Advocate Kuncolienkar was to be out of station till 7/8/2011, it was only on 08/08/2011 that he could tell the applicants that an Appeal will have to be filed to set aside the Judgment and Decree as the Executing Court had no powers to set aside the same and that they will have to look for some Advocate appearing in the High Court. The applicants have filed the affidavit of said Pravin Kuncolienkar and have also produced the tickets dated 03/08/2011 and 07/08/2011 to show that Advocate Pravin was out of station. Learned Counsel for the applicants invited the attention of this Court to paragraph 9 of the application wherein it is alleged that the applicants, thereafter, contacted Advocate Nitin Sawant, who assured that he would help them to arrange for an Advocate but could not deal with the advocate appearing in High Court, due to some of his personal difficulties as also difficulties of the applicants. Ultimately, on or about 27/08/2011 the applicants managed to get an appointment with Advocate at Panaji who took time to study the matter and file the appeal along with present application. Learned Counsel contended that there are arguable points and the applicants have a good case on merits and stakes are high. Learned Counsel for the applicants urged that in the facts and circumstances above, the delay be condoned in the interest of justice. 10. Mr. Naik, learned Counsel for the applicants has relied upon following Judgments: (i) A. V. Papayya Sastry & Ors. v. Government of A.P & Ors., AIR 2007 SC 1546 ; (ii) N. Balakrishnan v. M. Krishnamurthy, AIR 1998 SC 3222 ; (iii) State (NCT of Delhi) v. Ahmedjaan. (2008) 14 SCC 582 ; (iv) Collector, Land Acquisition. Anantnag v. Katiji, AIR 1987 SC 1353 ; (v) Ram Kumar Goyal & Ors. v. Bhuwan Singh Pradhan, AIR 2007 Sikkim 39; (vi) Ram Nath Sao and Ors. v. Gobardhan Sao and Ors., AIR 2002 SC 1201 ; (vii) Radha Krishna Rai v. Allahabad Bank. (2000) 9 SCC 733 ; (viii) Concord of India Insurance Co. Ltd v. Nirmala Devi and Ors., AIR 1979 SC 1666 ; (ix) Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corporation and Anr., JT 2010 (2) SC 389; (x) Pratapchand Lakhmaji Jain v. Smt. Lilabai Krishanath Surve. 1998 (3) Mh LJ 706; (xi) M.K. Prasad v. P. Arumugam. AIR 2001 SC 2497 . 11. Per Contra. Mr. Mendes, submitted that the statements made by the applicants and their witnesses are incomplete incorrect or false and the grounds mentioned in the application are unbelievable. The attention of this Court was drawn to the contents of paragraphs 5 and 6 of the affidavit-in-reply, filed by respondent No.1. He submitted that the applicants had appointed their son, the respondent No.2. as their Agent and through him had entered into the said agreement of sale dated 10/12/2007 and that the respondent no 1 had issued the cheque of Rs. 7.00.000/- in the name of the applicant No. 1 which was deposited by applicant No. 1 in his own account with Bank of Baroda. Vasco-Da-Gama branch on 10/12/2007. He further submitted that the applicant No. 1 had taken Rs. 7.00.000/- from one Mr. 7.00.000/- in the name of the applicant No. 1 which was deposited by applicant No. 1 in his own account with Bank of Baroda. Vasco-Da-Gama branch on 10/12/2007. He further submitted that the applicant No. 1 had taken Rs. 7.00.000/- from one Mr. Ashok Chikney by way of an oral agreement in respect of the same plot and hence in order to return that amount, the applicant No. 1 issued cheque of Rs. 7.00.000/- in the name of said Mr. Ashok Chikney. Mr. Mendes further submitted that the respondent No.1, as consideration, then tendered Rs. 5.00.000/ - by way of two cheques and the applicant No. 1 deposited these cheques in his Bank account on 22/12/2007 and two days later even issued two cheques in favour of applicant No.2 who withdrew an amount of Rs. 5.00.000/-. According to Mr. Mendes, therefore, the applicants were aware, of the sale transaction executed by their son and anything stated to the contrary, is obviously false. In this regard, it is the submission of learned Counsel for the applicants that the respondent No. 2 had no authority to enter into the agreement of sale dated 10/12/2007 since the power of attorney granted by the applicants in his favour was revoked and even a notice in this regard was published in the local news papers. According to learned counsel for the applicants, the applicants had no idea that the cheque amount had any nexus with the agreement for sale of property and bungalow. In answer to this Mr. Mendes questioned that if the power of attorney was already revoked prior to the execution of the agreement for sale, then why a deed of revocation of the power of attorney was executed subsequently. To this, learned counsel for the applicants submitted that this was done by way of abundant caution. 12. According to Mr. Mendes, learned Counsel appearing on behalf of the respondent No.1, alarm bell should have rung at least when the first notice in the execution proceedings was received by the applicants. He pointed out that the applicants received second notice thereafter but still say that they continued to repose confidence in their Advocate, which story is unbelievable. He contended that Advocate P. Kuncolienkar has been surreptitiously brought in. He pointed out that No Objection Certificate from earlier Advocate on record namely. Aklesh Pednekar has not been filed. He pointed out that the applicants received second notice thereafter but still say that they continued to repose confidence in their Advocate, which story is unbelievable. He contended that Advocate P. Kuncolienkar has been surreptitiously brought in. He pointed out that No Objection Certificate from earlier Advocate on record namely. Aklesh Pednekar has not been filed. He submitted that a draft of sale deed was sent to the applicants and hence fire was at their door steps. He questioned as to how the applicants could still remain quiet. His grievance is that even after the applicants personally came to know of the judgment and decree in the year 2009, they allowed the execution proceedings to continue till 2011. He vehemently submitted that this is not what diligent litigants are expected to do. Learned Counsel urged that the applicants are seasoned litigants knowing all tricks and in fact have tried all the tricks to stall the execution of the decree in favour of the respondent No. 1 and only when they have understood that they are now at the end of the rope, they have filed appeal along with the present application only with intention to further delay the enjoyment of fruits of decree rightly and lawfully won by the respondent No. 1. According to Mr. Mendes, even otherwise, all questions raised in the Appeal can be raised in execution Proceedings and Executing Court can decide them under Section 47 of CPC He read paragraph 13 of the judgment in Oriental Aroma Chemical Industries Ltd. (supra), and submitted that for reasons stated therein, the Apex Court dismissed the application for condonation of delay. 13. In the case of Ram Kuma Goyel and others (supra), learned Single Judge of Sikkim High Court has observed as follows: "18. It is, therefore, well settled by now that the explanation put forward in the application for condonation of delay should be considered along with the merits of the Appeal and if serious points of law are prima facie found to have been raised in the Appeal, the application for condonation of delay is not to be lightly brushed aside taking into account only the length of delay in the matter. A reference to the merits of the Appeal for the limited purpose of ascertaining whether arguable points of law have been raised would invariably be desirable for advancing the cause of substantial justice while considering the question of condonation of delay under Section 5 of the Limitation Act." 14. In the present case, admittedly, the decree is ex parte. The applicants had not signed the agreement for sale dated 10/12/2007. The impugned Judgment itself mentions that the investigation of police had revealed that the power of attorney given by the applicants in favour of the respondent No. 2 was withdrawn by public notice. Without going into the merits of all the disputes with regard to the revocation of the power of attorney and about legality or illegality of the agreement for sale, in my view, there are arguable points of law and that being the case, it would be desirable to give opportunity to the applicants, by construing the expression 'sufficient cause" liberally, for advancing cause of substantial justice. 15. In the case of Collector. Land Acquisition, Anantnag (supra), the Apex Court has observed as follows : "3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act, 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which sub-serves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that :- "Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. "1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. "1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can, happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so." 16. In the case of N. Balakrishnan v. M. Krishnamurthy (supra), the Apex Court has held thus: "11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time". 17. In the case of Oriental Aroma Chemical Industries Ltd. (supra), it has been held that the law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. 'The idea is that every legal remedy must be kept alive for a period fixed by the legislature. The Apex Court has observed that in dealing with the applications for condonation of delay filed on behalf of the State and its agencies/instrumentalities, it has, while emphasizing that same yardstick should be applied for deciding the applications for condonation of delay filed by private individuals and the State, observed that certain amount of latitude is not impermissible in the latter case because the State represents collective cause of the community and the decisions are taken by the officers/agencies at a slow pace and encumbered process of pushing the files from table to table consumes considerable time causing delay. However, the Apex Court found that incorrect and ex facie false statements were made in the application. Hence, the application for condonation of delay was dismissed. 18. In the case of M. K Prasad (supra), the Apex Court has observed as follows : "9. In the instant case, the appellant tried to explain the delay in filing the application for setting aside the ex parte decree as is evident from his application filed under Section 5 of the Limitation Act accompanied by his own affidavit. Even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigate him as all, irresponsible litigant. Even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigate him as all, irresponsible litigant. He should have been more vigilant but on his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property concededly to be valuable. While deciding the application for setting aside the ex parte decree, the Court should have kept in mind the judgment impugned, the extent of the property involved and the stake of the parties. We are of the opinion that the inconvenience caused to the respondent for the delay all, account of the appellant being absent from the Court in this case can be compensated by awarding appropriate and exemplary costs. In the interests of justice and under the peculiar circumstances of the case we set aside the order impugned and condone the delay in filing the application for setting aside ex parte decree. To avoid further delay, we have examined the merits of the main application and feel that sufficient grounds exist for setting aside the ex parte decree as well." 19. There is no need to refer to the well known principles laid down in the other judgments cited by the applicants. Considering the affidavits filed by the applicants and evidence led by them and in view of the principles laid down by the Apex Court, in various cases, in the present case. I am of the considered opinion that sufficient cause for delay has been shown and delay should be condoned, however with appropriate costs in order to make up for the inconvenience that is caused to respondent No. 1. 20. In the result, the application is allowed. The appeal shall be registered subject to payment of costs of Rs.5000/ - to be paid by the applicants to respondent No.1. The applicants shall deposit the costs, in this Court within two weeks from today. The application stands disposed of accordingly.