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2019 DIGILAW 2795 (RAJ)

Anju Devi v. Trilochan Prasad Bansal

2019-11-06

SANDEEP MEHTA

body2019
JUDGMENT Sandeep Mehta, J. - The matter today comes up for orders on an application filed by Mr. Sanjeet Purohit, learned counsel representing the respondent-plaintiffs to vacate the ad interim stay order dated 27.08.2019 and so also for orders on the application under Section 5 of the Limitation Act seeking condonation of delay of 1333 days occasioned in filing the Civil Leave to Appeal filed by Mr. N.L. Joshi, learned counsel representing the appellant. 2. Brief facts relevant and essential for disposal of the applications are being noted hereinbelow. The respondent plaintiffs Mr. Trilochan Prasad and Mr. Shishanpal filed a suit for specific performance of contract against the defendant Mr. Girish Kumar. The suit was filed for enforcing an agreement to sale executed by Girish Kumar for the shop No.62/B, which was owned by Onkarmal, who had executed a will thereof in favour of Girish Kumar. The agreement was entered into for a consideration of Rs.22 lacs, of which a sum of Rs.1 lac was paid in advance. When the seller was not agreeable to execute the registered sale deed, the purchaser, i.e. the plaintiff Trilochan Prasad, filed the suit for specific performance of contract expressing his readiness and willingness to pay the balance amount of sale consideration and praying that the agreement be registered. During the pendency of the suit, the parties, i.e. the plaintiff Trilochan Prasad and the defendant-seller arrived at a compromise. A compromise application was moved, which was accepted and the suit was decided in favour of Trilochan Prasad vide judgment dated 15.04.2015 and a decree was issued in his favour. The appellant herein claims that the original owner of the shop, namely, Onkarmal, executed a subsequent will in favour of one Purushottam Lal, who in turn, executed an agreement dated 04.05.2015 in favour of one Surendra Kumar for a consideration of Rs.15 lacs. Surendra Kumar in turn executed an agreement to sale in favour of Anju Devi, the applicant herein, for a consideration of Rs.13,15,000/-. Thus, Anju Devi claims to be having a right in the suit property through this agreement to sale. 3. It may be mentioned here that in the intervening period, Purushottam Lal filed an application for probate before the competent court, but later on, he withdrew the same. Purushottam Lal also filed an objection in the execution proceedings initiated by the plaintiff, but then withdrew the same. 3. It may be mentioned here that in the intervening period, Purushottam Lal filed an application for probate before the competent court, but later on, he withdrew the same. Purushottam Lal also filed an objection in the execution proceedings initiated by the plaintiff, but then withdrew the same. It is noteworthy that the sale deed has already been executed in favour of the plaintiff Trilochan Prasad in execution of the judgment and decree dated 15.04.2015. 4. Smt. Anju Devi filed objections under Order 21 Rule 36 and Section 47 CPC in the execution proceedings being Execution Case No.35/2015. These objections came to be rejected by the Executing Court vide order dated 21.12.2018. The said order dated 21.12.2018 was assailed by Anju Devi by filing a Civil Revision No.20/2019, which was dismissed by this court vide order dated 05.03.2019. Thereafter, the instant leave to appeal application has been preferred on behalf of Smt. Anju Devi seeking leave to file an appeal against the judgment dated 15.04.2015. 5. As the leave to appeal application is delayed by 1333 days, an application under Section 5 of the Limitation Act has been moved to condone the delay occasioned in filing the leave to appeal application. The averments made in the application for condonation of delay are very material and would have a bearing on the outcome thereof and thus, are being reproduced hereinbelow for the sake of ready reference :- 1. That the humble Applicant/Appellant is filing the above noted Civil Leave to Appeal before this Hon'ble Court being aggrieved by the impugned Judgment and Decree dated 15.04.2015 passed by the learned Additional District Judge, Raisinghnagar, District - Sri Ganganagar. 2. That it is humbly submitted that the Judgment and Decree was passed by the learned Trial Court on 15.04.2015 but since the actual owner was not impleaded as party respondent to the suit filed either by Plaintiffs or by the Defendant, therefore, the fact regarding pendency of the civil suit with regard to the property in question, could not come to the notice of the Appellant. 3. That the Appellant is bonafide purchaser of the property in question as she purchased the said shop from Surendra Kumar and since then he is in continuous possession over the property in question as well as ownership of the property in question lies with the Appellant. 4. 3. That the Appellant is bonafide purchaser of the property in question as she purchased the said shop from Surendra Kumar and since then he is in continuous possession over the property in question as well as ownership of the property in question lies with the Appellant. 4. That the Appellant was absolutely unaware of the suit proceeding pending before the Trial Court and after passing the impugned Judgment and Decree dated 15.04.2015 by the learned Trial Court, the Appellant came to know that a Judgment and Decree dated 15.04.2015 has been passed with regard to the property in question (Shop of the Appellant) then immediately the Appellant approached the concerned court and applied for obtaining certified copies of the Judgment and Decree and other relevant documents only and the same were received by her. Thereafter, the Appellant approached his local counsel and sought his opinion. The local counsel advised to assail validity of the Judgment and Decree passed by the Trial Court before this Hon'ble Court. The Appellant thereafter, approached his counsel at Jodhpur by arranging requisite legal fee as well as relevant record. Therefore, in these circumstances, a slight delay has occurred in filing the Leave to Appeal. In view of the above submissions, the delay caused in filing the Leave to Appeal is bonafide not intentional. Thus, the present Appeal is preferred before this Hon'ble Court without any further delay. Therefore, this Hon'ble Court may be pleased to condone the delay and hear the Leave to Appeal on its merits." 6. On a perusal of the contents of the application under Section 5 of the Limitation Act, it is clear that the applicant Smt. Anju Devi has intentionally concealed the factum of filing of objections before the trial court in the execution proceedings. Apparently, if the disclosure had been made, the hollow claim of Smt. Anju Devi that she came to know of the judgment and decree dated 15.04.2015 after significant delay would fall flat to the face. Otherwise also, no date has been set out in this application as to when Smt. Anju Devi became aware of the judgment and decree dated 15.04.2015. The recitals made in the application for condonation of delay are totally vague, misleading and suffer from concealment of material facts. Otherwise also, no date has been set out in this application as to when Smt. Anju Devi became aware of the judgment and decree dated 15.04.2015. The recitals made in the application for condonation of delay are totally vague, misleading and suffer from concealment of material facts. Since Smt. Anju had filed the application raising objections before the Executing Court, manifestly, she must have become aware of the judgment and decree at a much earlier stage. The wilful concealment of this fact in the application for condonation of delay makes it clear that Smt. Anju, the applicant, has not approached this court with clean hands. 7. A co-ordinate Bench of this court had the occasion to examine a similar controversy in S.B. Civil Leave to Appeal No.11/2017 (Chittar Vs. Manish Kumar and Ors.) decided on 18.07.2018 and after adverting to the entirety of facts, it was held as below :- "The transfer of the property in question in favour of the appellant took place during pendency of the suit and in breach of injunction granted in another suit for injunction filed by the respondents. On account of the said fact, the trial court rejected the application for impleadment of the applicant in the suit. Whereafter, the suit has been decreed and as noticed hereinbefore, objections under Order XXI, Rule 97 CPC were filed, which came to be rejected by the executing court on 24.11.2016. Once, the appellant became aware about passing of decree, in case he was aggrieved of the said decree, it was incumbent on him to challenge the said judgment and decree appropriately. However, the appellant chose not to question the decree at the relevant time and persisted with his objections before the executing court and once the executing court, inter-alia, on the ground that the judgment and decree has not been questioned by the applicant, rejected the objections, the present appeal apparently has been filed. As already noticed, in the application seeking condonation of delay, totally vague plea regarding alleged advise given by some counsel at some point of time regarding not filing of the appeal and again filing the appeal based on advise received, has been put forth. If delay of 09 years in filing appeal based on such a vague submission is condoned, the same would provide a ground, which in absence of any further particulars would be absolutely untenable. If delay of 09 years in filing appeal based on such a vague submission is condoned, the same would provide a ground, which in absence of any further particulars would be absolutely untenable. Besides the above, the fact that even after the order was passed by the executing court on 24.11.2016, the appeal thereafter has also been filed after 09 months clearly indicates that no efforts have been made on part of the appellant to question the validity of the judgment and decree, appropriately. The reason indicated in the application as discussed herein-before cannot be said to be sufficient ground for condonation of delay." 8. In the present case, there is another circumstance, which convinces the court that the appellant entered into the transaction with Purushottam Lal in order to subterfuge the decree passed in favour of the plaintiff. The decree was passed in the year 2015, whereas the agreement to sale, on the basis whereof Smt. Anju Devi stakes a claim on the shop in question, was executed on 06.03.2017 and that too at a much lesser rate than what was settled in the agreement executed between Girish Kumar and the plaintiff Trilochan Prasad. 9. In wake of the discussion made above, I am of the firm opinion that the reasons stated in the application for condonation of delay in filing the leave to appeal application are totally far-fetched, unconvincing and unacceptable. As a matter of fact, the leave to appeal application deserves to be rejected on the grounds that the reasons set out therein are not convincing, that no details have been set out therein regarding the date on which the applicant became aware of the impugned judgment and that the applicant has concealed material facts from this court while filing the application. 10. As a result, the application under Section 5 of the Limitation Act filed by the applicant Anju Devi with a payer to condone the delay in filing the leave to appeal application fails and is hereby rejected as being devoid of merit. As a consequence, the leave to appeal application, which is delayed by 1333 days is also dismissed. The interim order shall stand vacated. The application for stay vacation filed by Mr. Sanjeet Purohit, Advocate, is disposed of as infructuous. 11. Learned counsel Mr. Joshi has moved an application for refund of court fees. As a consequence, the leave to appeal application, which is delayed by 1333 days is also dismissed. The interim order shall stand vacated. The application for stay vacation filed by Mr. Sanjeet Purohit, Advocate, is disposed of as infructuous. 11. Learned counsel Mr. Joshi has moved an application for refund of court fees. As is apparent that the applicant herein has not been granted leave to appeal and the memorandum of appeal submitted by her is not accompanied with court fee. Thus, the application is dismissed as being frivolous.