Ravi Singh Chauhan vs Smt. Urmila Mittal & Others

SHARAD SHARMA, J. (ORAL)

This matter was listed yesterday for orders on delay condonation application preferred by the appellant seeking condonation of 2109 (i.e. about 5.77

years) days delay, which has chanced in filing the Appeal against the judgment and decree dated 30.03.2010, whereby the Suit for specific

performance preferred by the plaintiff/respondent nos. 1 & 2 seeking execution of the agreement for sale dated 30.12.2000 was decreed. Challenging

the said judgment, the judgment debtor i.e. respondent no.3 herein, had preferred a first appeal being First Appeal No. 32/2010, which is pending

consideration. In the said First Appeal the present applicant to the delay condonation application had filed an impleadment application, which has been

allowed by this Court vide its order dated 28.09.2016, on the said order a reliance is placed by the applicant seeking delay condonation in present

appeal. Before considering the impact of allowing the impleadment application in the connected First Appeal preferred by the judgment debtor it has to

be borne in mind that the two Appeals are independent in nature, whereby independent rival parties claim their rights flowing under different

circumstances, and hence they are also to be treated as to be an independent proceedings in continuation to the Suit and admittedly when the present

applicant to the delay condonation application is not a party to the proceedings before the Court below till the Suit was decreed on 30.03.2010.

Admittedly, the appellant has filed an impleadment application in connected First Appeal No.32 of 2010, on 10.03.2016, which remained pending till

it was allowed by this Court by the order dated 28.09.2016. In the impleadment application thus filed by the appellant the basis was the sale deed said

to have been made in favour of the appellant on 29.11.2012 that too almost after 02 years 08 months from the decree dated 30.03.2010, by the

Judgment debtor. An inference could be drawn that the basis of claim was the allege purchase. In the instant appeal, the appellant has filed appeal

with delay condonation on 11.04.2016, i.e. after filing impleadment and before the same was allowed by this Court on 28.09.2016. In the application

for condonation of delay altogether new ground has been pleaded. During pendency of impleadment application in connected First Appeal, the

appellant alleges to have learnt about the decree by information given to him on 08.06.2016 by judgment debtor and also when the decree holders

made efforts to extract more money from the appellant. However, at this juncture, it is made clear that this fact of purchasing the property on

29.11.2012 which has been the basis of impleadment application filed in the connected Appeal, but it is not the foundation of the delay condonation

application in this Appeal seeking condonation of delay to challenge the judgment and decree dated 30.03.2010. There are two independent pleadings

raised contrary to each other. The Appeal is supported by the delay condonation application no. 3409/2018 and the grounds taken therein seeking

condonation of delay is extracted hereunder:

“1. That the applicant was not aware of the suit and judgment & order dated 30.03.2010, as well as the first appeal no. 32 of 2010, Mahendra

Singh Gil & another v. Smt. Urmila & another filed by the defendants/respondent nos. 3/1 & 3/2 before this Hon’ble Court. First time on

08.03.2016 the applicant has learnt from the defendant/respondent nos. 3/1 & 3/2 about the judgment & order dated 30.03.2010 passed by the learned

trial court, when the defendant/respondent nos. 3/1 & 3/2 told to the applicant that the first appeal no. 32 of 2010, Mahendra Singh Gil & another v.

Smt. Urmila & another is pending before this Hon’ble Court and they also tried to snatch more money from the applicant/appellant, then the

applicant came to know about the matter in the first week of March, 2016.

That prior to it the applicant was not aware about the impugned judgment.

That on coming to know to the fact of impugned judgment the applicant enquired from the respondent nos. 3/1 & 3/2, then he came to know about

the pendency of first appeal no. 32 of 2010, then he moved an impleadment application to implead him as appellant.

That the impleadment application no. 2400 of 2016 was moved on 10-03-2016, which is pending before this Hon’ble Court.

That the applicant has been advised to file the first appeal against the impugned judgment & order dated 30.03.2010. The applicant obtained the

certified copy of the judgment & order dated 30-03-2010 and its decree passed by the learned trial court 17-03-2016 and filing the present first appeal

with an application to leave to appeal.

That the limitation to file the appeal against impugned judgment & order dated 30.03.2010 was upto 28-06-2010. Since the applicant was not party

to the suit and was also not aware of the impugned judgment and first time he came to know about the impugned judgment in the first week of March,

2016, thus there is no willful and deliberate delay on the part of applicant in filing the present appeal alongwith leave to appeal.

That since another appeal filed by the defendants/respondent nos. 3/1 & 3/2 is pending before this Hon’ble Court, then the delay is liable to be

condoned on the principal that condonation of delay in filing the appeal will not cause any prejudice to the respondents.

That since the applicant’s valuable rights are involved in the appeal and in case of non condonation of delay the applicant would suffer

irreparable loss and injury.

That the applicant is hope of success in present appeal, thus the delay is liable to be condoned.

That the delay in filing the present first appeal neither is deliberate, nor willful, the same occurred due to unawareness of the impugned judgment

& order dated 30.03.2010, thus this Hon’ble court may graciously be pleased to condone the delay from 29-06-2010 to 11-04-2016, the delay of

2,109 days in filing the present first appeal.

That in these circumstance of the case it is expedient and necessary in the interest of justice that this Hon’ble Court may graciously be

pleased to condone the delay from 29-06-2010 to 11-04-2016, the delay of 2,109 days in filing the present first appeal, otherwise the applicant/appellant

shall suffer irreparable loss and injury, which cannot be compensate in any manner.â€​

The only ground which has been narrated therein is the knowledge. The knowledge which is said to have been attributed to the applicant on

08.09.2016 is from the defendant/respondent no. 3/1 and 3/2, which is said to have been extended to them with regards to the decree. This contention,

raised in paragraph 1, has been pleaded on the basis of personal knowledge, under Section 3 of the Transfer of Property Act, which is quoted

hereunder:

a person is said to have notice"" of a fact when he actually knows that fact, or when, but for willful abstention from an enquiry or search which he

ought to have made, or gross negligence, he would have known it.

Explanation I: Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any

person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date

of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-section (2)

of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has

been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or

interest is being acquired, is situated:

PROVIDED that-

(1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (16 of 1908), and

the rules made thereunder,

(2) the instrument of memorandum has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and

(3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that

Act.

Explanation II : Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title,

if any, of any person who is for the time being in actual possession thereof.

Explanation III: A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course

of business to which that fact is material:

PROVIDED that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a

party to or otherwise cognizant of the fraud.â€​

Now the responsibilities to verify the facts about the propriety of the property proposed to be purchased has now been vested to the purchaser i.e.

the appellant herein and it was he who owes the responsibility to satisfy about the property and encumbrances against it prior to the purchaser,

meaning thereby, since in the instant case the sale deed happens to be much after the decree dated 30.03.2010 i.e. about after 02 years 08 months it

would be presumed that the applicant had purchased it after having the knowledge of the decree dated 30.03.2010. On account of the fact that the

condonation of delay as sought for has not been satisfactorily explained and also that there is no rational explanation as to under what circumstances

there had chanced a delay of 2109 days. This Court is not satisfied with the reasons assigned, therein because no other plausible reason has been

given. Whatsoever reasons are given is contrary to the pleadings and not based on alleged purchase. There is yet another logic for which the reason

for delay cannot be accepted because apart from the fact that there is an inordinate delay of 2109 days and the law of limitation proceeds on the

principle that the limitation ought not be to allowed which hampers the right of a person, who is the beneficiary of the judgment with the passage of

time.

Learned counsel for the applicant has placed reliance on a judgment ‘Radha Krishna Rai vs. Allahabad Bank and Others’ as reported in

2009(9) SCC 733. In the said case, the High Court was seized with the proceedings under Section 100 of the Appeal and the facts of delay which was

pleaded therein was on account of the dereliction on part of the counsel who was supposed to file an Appeal. The said situation is entirely different to

the one prevailing over here because admittedly, according to the records, the only reason is the knowledge.

For the reasons aforesaid, I do not find any reason to condone the delay. Accordingly, the delay condonation application stands rejected.

Consequently, the leave to Appeal as well as the Appeal would also stands dismissed.