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2018 DIGILAW 663 (ORI)

Dillip Kumar Patra v. M. Gopikrishna Rao

2018-07-17

B.R.SARANGI, VINEET SARAN

body2018
JUDGMENT Dr. B.R. SARANGI, J. - The respondent, being the plaintiff before the learned Civil Judge (Senior Division), Berhampur, filed T.S. No. 128 of 1997, for specific performance of contract, where the appellant was the defendant. 2. The factual matrix of the case, in hand, is that there was an agreement between the parties on 21.08.1995 wherein the appellant had agreed to sell the disputed property measuring Ac. 0.44 cents for Rs.2,17,844/- to the respondent and to execute the sale deed within a period of seventeen months from the date of agreement. Accordingly, the respondent paid a sum of Rs.35,001/- to the appellant towards advance consideration. As the appellant did not execute the sale deed, the respondent filed aforementioned suit, in which the appellant appeared, pursuant to notice issued by the Court, and filed his written statement stating that he is ready and willing to perform his contract and the respondent be directed to deposit the entire balance consideration amount with interest in Court. Accordingly, the learned Civil Judge (Sr. Division), Berhampur decreed the suit on 07.04.2001 directing the appellant to execute the sale deed in favour the respondent within one month of the decree and the respondent to pay the balance consideration amount of the agreed value within the said period, failing which the respondent would be at liberty to get the sale deed executed and registered through Courts. 3. The appellant did not execute the sale deed as per the decree, but gave a false notice to the respondent stating that on 28.05.2001 he would execute the sale deed. On receiving the notice, the respondent had been to the office of Sub-Registrar, along with the balance consideration money. However, the appellant expressed his inability to execute the sale deed for the whole lands on the plea that he had already sold 8800 sqft., out of the scheduled property, to somebody else. The respondent in order to show his bona fide deposited the entire balance consideration amount in Bank. 4. Thereafter the appellant filed an application before the Court below under Order 47 Rule 1 of CPC to modify the judgment and decree on the ground that the extent of land as agreed was not as per schedule and the extent to be reduced. The said application was registered as M.J.C. No. 91 of 2001. 4. Thereafter the appellant filed an application before the Court below under Order 47 Rule 1 of CPC to modify the judgment and decree on the ground that the extent of land as agreed was not as per schedule and the extent to be reduced. The said application was registered as M.J.C. No. 91 of 2001. The respondent filed his objection to the said application stating that in order to delay the proceeding, the application has been filed. The respondent also filed Execution Case No. 38 of 2001 to get the decree executed, in which the appellant filed an application under Section 47 CPC questioning the executability of the decree. Thereafter, the appellant filed an application under Section 28(1) of the Specific Relief Act, 1963 to rescind the contract. The learned Civil Judge (Sr. Division), Berhampur, after hearing the parties came to a conclusion that there are no reasons to hold the decree ineffective merely because the amount was not deposited within the stipulated period. The Court is competent under Section 28 of the Act to grant extension of time to deposit the purchased price, even if the period fixed by the Court has been expired and without any application for extension. Section 148 of CPC also empowers the Court to extend the time even if the period has already been expired. Accordingly, the learned Civil Judge (Sr. Division), Berhampur rejected the application and directed the respondent to deposit the balance amount within a period of one month from the date of the order and the appellant is to execute the sale deed in view of the judgment and decree passed in the suit. 5. The aforesaid order dated 26.06.2006 passed by the learned Civil Judge (Sr. Division), Berhampur in T.S. No. 128 of 1997 filed under Section 28(1) of Specific Relief Act for rescission of contract dated 28.08.1995 was under challenge before this Court in W.P.(C) No. 11814 of 2007. After due adjudication, the learned Single Judge dismissed the writ petition on 24.09.2014 and vacated the interim order passed by that Court. Against the said judgment dated 24.09.2014 passed in W.P.(C) No. 11814 of 2007, the present appeal has been filed by the writ petitioner-appellant before this Court. Since the appeal has been filed beyond the period of limitation, the appellant filed misc. case no. Against the said judgment dated 24.09.2014 passed in W.P.(C) No. 11814 of 2007, the present appeal has been filed by the writ petitioner-appellant before this Court. Since the appeal has been filed beyond the period of limitation, the appellant filed misc. case no. 59 of 2015 under Section 5 of the Limitation Act for condonation of delay of entertaining the writ appeal before this Court. 6. This Court issued notice to the respondents on 30.05.2015 for condonation of delay, pursuant to which the respondent entered appearance through his counsel and filed objection to the petition for condonation of delay filed under Section 5 of the Limitation Act by the appellant. The said matter is listed for orders today. 7. Perused the misc. case no. 59 of 2015, where the appellant has sought for condonation of delay under Selection 5 of the Limitation Act. The sole ground taken for condonation of delay has been set out in paragraph 3 of the application, which reads as follows:- “3. That the judgment passed on 24.09.2014 the certified copy of which was obtained on 28.11.2014 even if the advocate for the petitioner knew about the result of the case, but the appellant due to illness of his wife could not turn up to file the writ appeal. Hence the delay.” In the prayer portion of the misc case, it has been prayed as follows: “The appellant therefore prayed that your lordship may graciously be pleased to allow the application, condone the delay of …..days for ends of justice and for this act of kindness the petitioner shall as in duty bound ever pray.” 8. In view of the pleadings available in the petition itself, admittedly the judgment was delivered by the learned Single Judge on 24.09.2014 and the appellant received its certified copy on 28.11.2014, but he preferred writ appeal on 30.01.2015 and filed the application for condonation of delay under Section 5 of the Limitation Act on the very same day i.e. on 30.01.2015, thereby a delay of 198 days has been caused, which has been pointed out by the office. But in the prayer portion of the petition, the number of days delay has not been indicated and it has remained blank. But in the prayer portion of the petition, the number of days delay has not been indicated and it has remained blank. As regards the reasons, it has been stated that due to illness of the wife of the appellant, he could not turn up to file the writ appeal, and to substantiate the same a doctor certificate purportedly issued on 27.01.2015 has been enclosed, wherein it has been indicated that the wife of the appellant is suffering from Rheumatoid Arthritis from 1st August, 2014. On the basis of the reasons assigned for condonation of delay, it is to be considered the purport of Section 5 of Limitation Act. Meaning thereby, while condoning the delay invoking the power under Section 5 of the Limitation Act, this Court has to take into account two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. Secondly, the consideration which cannot be ignored is that if sufficient cause for excusing delay is shown, discretion is given to the Court to condone delay and admit the appeal. Therefore, the discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. 9. This question had come up for consideration by the apex Court in various judgments and the apex Court have laid down the principles taking into account the sufficient cause shown for condonation of delay in Collector (LA) v. Mst. Katiji, AIR 1987 SC 1353 ; N. Balakrishnan v. M. Krishnamurthy, AIR 1998 SC 3222 ; P.K. Ramachandran v. State of Kerala, AIR 1998 SC 2276 ; Vedabai v. Shantaram Baburao Patil, AIR 2001 SC 2582 ; State of Nagaland v. Lipok Ao, AIR 2005 SC 2191 ; Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai, 2012 (5) SCC 157 ; Amalendu Kumar Bera and others v. State of West Bengal, 2013 (4) SCC 52 ; and Office of the Chief Post Master General & Ors. v Living Media India Ltd. & Anr., 2012 AIR SCW 1812. Relying upon the aforesaid judgments of the apex Court, this Court has already taken a similar view in Union of India v. Kahnei Charan Biswal, 2017 (Supp.-II) OLR - 498. 10. v Living Media India Ltd. & Anr., 2012 AIR SCW 1812. Relying upon the aforesaid judgments of the apex Court, this Court has already taken a similar view in Union of India v. Kahnei Charan Biswal, 2017 (Supp.-II) OLR - 498. 10. Considering the above mentioned judgments and applying the same to the facts and circumstances of this case, this Court is of the considered view that no sufficiency of cause has been shown by the appellant on the pleadings, as mentioned above, to condone the delay of 198 days in preferring this appeal before this Court. Therefore, misc. case no. 59 of 2015, being devoid of merit, is liable to be dismissed and consequentially the writ appeal being barred by limitation. 11. In addition to dismissal of the writ appeal on the ground of limitation, it is otherwise also not maintainable in view of the law laid down by the apex Court in Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423 , as well as of this Court in Rabindranath @ Rabindranath Jena v. Bijaya Kumar Bhuyan, 2016(II) ILR-CUT-28, Ananda Mahapatra v. Bijay Mahapatra,* 2017(I) ILR-CUT-24, and Jyotshna Mohapatra v. State of Odisha, 2018 (II) OLR-1. 12. In the result therefore, both the misc. case as well as the writ appeal stands dismissed. Ordered accordingly.