Pushpa Bai Kushwaha vs Santosh Kumar Gupta

A.K. Shrivastava, J.—An application LA. 98/2012 has been filed to condone the delay in filing the appeal. A decree for specific performance of contract was passed by learned District Judge, Narsinghpur in Civil Suit No. 54-A/1999 on 21-12-2000. This appeal has been filed by defendant on 2-1-2012 and thus, the office has reported this appeal to be barred by 10 years 8 months and 26 days. The contention of learned senior counsel for the appellant is that after the decree of specific performance of contract was passed against defendant/ appellant the brother of the respondent namely, Rattu alias Ratan Lal approached defendant that the matter can be settled amicably out of the Court and the defendant readily accepted the said offer. Thereafter she also paid a sum of Rs. 80,000/- to plaintiff/respondent in that regard and it was settled between the parties that the decree of specific performance will not be executed. Learned senior counsel submits that all of a sudden when a notice to deliver possession was received by the appellant from the Executing Court, thereafter she has filed this first appeal along with application u/s 5 of the Limitation Act to condone the delay.

Learned senior counsel for the appellant submits that during this period the defendant dismantled the house in question and reconstructed it after obtaining loan from two Banks. It has also been put forth that before constructing the house notice was also published in the newspapers that defendant/appellant is taking loan and if anybody is having objection, in writing objections be submitted to her. But, the plaintiff/respondent never objected and therefore, in these facts and circumstances, the delay of 10 years 8 months 26 days be condoned. In support of his contention learned senior counsel has placed heavy reliance upon the decision of Supreme Court in State of Nagaland Vs. Lipok AO and Others, and has submitted that the application u/s 5 of the Indian Limitation Act should be liberally construed and a pragmatic approach should he adopted by the Court. Thus, it has been prayed that application u/s 5 of the Limitation Act be allowed.

On the other hand, Shri Sanjay K. Agarwal, learned counsel appearing for the respondent/plaintiff by replying the application has submitted that no sufficient; ground is made out to condone the delay in filing the appeal. In reply the averments of appellant made in the application has been emphatically denied. The contention of learned counsel for the respondent is that a decree of specific performance of contract was put to execution well in time in the year 2007. Thereafter, in pursuance to the said decree the sale deed through Court has also been executed, but, no objection was raised before the Executing Court about the plea which now me appellant is setting up to condone the delay. Learned counsel further submits that when the warrant of possession was issued against the appellant, instead of setting up the said plea she took time to vacate the house in question and therefore, all these averments which all are in the air have no bearing and therefore, since the appellant has utterly failed to establish sufficient cause to condone the exorbitant delay of 10 years 8 months and 26 days, this application be dismissed. In support of his contention learned counsel has placed reliance on the decision of Supreme Court Lanka Venkateswarlu (D) by L.Rs. Vs. State of A.P. and Others,

Having heard learned counsel for the parties I am of the view that L.A. No. 98/2012 deserves to be dismissed.

Admittedly, a bi-party judgment and decree of specific performance of contract was passed by learned trial Court. Had the decree been passed in ex parte the appellant may have some say in regard to the contention which he is now placing and making the application u/s 5 of the Indian Limitation Act. Indeed, the appellant kept silent for more than a decade and did not assail the judgment and decree of specific performance of contract by filing an appeal. Merely because the decree was not put to execution immediately and was put to execution somewhere in February, 2007 would not mean that decree has become otiose or the stand taken by the appellant in the application u/s 5 of the Limitation Act is corroborated.

I do not find any merit in the contention of learned senior counsel for the appellant that the decree was not put to execution till Rattu had died and after his death only the decree was put to execution and therefore, the averments made in the application are correct. Admittedly, the decree of specific performance has been put to execution within limitation and therefore, the stand which has been taken is having no meaning. Admittedly whatever the averments which are made in the application in regard to the payment of Rs. 80,000/- etc. by the appellant to respondent/plaintiff all are oral and no document in this regard is filed. No application u/s 47, CPC was filed by appellant/ defendant in Executing Court in regard to the adjustment or full and final satisfaction of the decree. Thus, in absence of any document in this regard, the bald statement that too after 10 years 8 months and 26 days cannot be accepted and one can think and infer that all these averments are lame excuses and afterthought.

One important fact which cannot be marginalised and blinked away is that when the decree of specific performance of contract was put to execution through Court the sale deed was executed and registered, but, the appellant did not raise any objection in this regard before the Executing Court. Further she did not raise any objection even when warrant of possession was served upon her, on the contrary, she took time to vacate the suit premises. This indicates that the plea which has been taken by the appellant in the application explaining the delay in filing the appeal is afterthought.

Generally the application u/s 5 of the Limitation Act is considered with a pragmatic and liberal approach, however, such approach should be justice oriented. I have already held hereinabove that there is no justification to condone the delay because there is no sufficient reason assigned in the application u/s 5 of the Limitation Act to condone the delay. According to me, while deciding the said application the Courts do not enjoy the unlimited and unbridled discretionary powers and the discretion of the judicial power should be exercised within reasonable bounds known to the law. The liberal approach would not include whims or fancies; prejudices or predilections. The valuable right has been accrued in favour of plaintiff/respondent after the decree was passed in his favour and it should not be lightly brushed aside on the basis of the averment made in the application which has no bearing and is not having any supporting documents to corroborate the averments. Thus, I am of the view that in this backdrop the decision of Supreme Court State of Nagaland (supra) relied by learned senior counsel for the appellant on facts is distinguishable and is not applicable but the decision Lanka Venkateswarlu (supra) placed reliance by learned counsel for the respondent is squarely applicable. On this point I may also profitably place reliance upon another decision of Supreme Court State of Rajasthan Vs. Nav Bharat Construction Co.,

After giving my anxious and bestowed consideration to the averments made in the application (I.A. No. 98/2012). I do not find that sufficient cause has been made out to condone the inordinate and exorbitant delay of 10 years 8 months and 26 days. Eventuality, I.A. No. 98/2012 is hereby dismissed and eventually this appeal is also hereby dismissed as barred by time.