Civil Revision Application No. 363 of 1992

24th March, 2000

Petitioner Counsel: Shri.M.N. NAVANDAR
Respondent Counsel: Shri A.B.KADETHANKAR

Cases Cited:
Baburao Wankhede v. Sewa Sahakari Sanstha, 1989 Mh.L.R. 1144 [Para 5]
Collector, Land Acquisition, Anantnag v. Mst. Katiji, AIR 1987 S.C. 1353 [Para 5]

JUDGMENT

JUDGMENT :- This is a revision petition against the order passed by the learned District Judge, Aurangabad, on 21-2-1992 in M.A.R.J.I. No. 242 of 1990. The present Petitioner was the defendant in Regular Civil Suit No.172 of 1985 filed in the Court of Civil Judge, Junior Division, Paithan which was a suit for specific performance of contract for sale. The suit came to be decreed on 12-7-1988 and thereafter the Petitioner filed appeal against the judgment and decree. There was delay of two years, two months and 10 days in filing the appeal and, therefore, application for condonation of delay was filed. The learned District Judge dismissed that application. Hence, the present Civil Revision Application.

2. Heard the learned counsel for the Petitioner and the Respondent.

3. The petitioner has filed on record the copy of the application for condonation of delay filed by him before the District Court, and in that application, all the details regarding how the suit proceeded are mentioned. It is admitted fact that the suit summons was served on the Petitioner and he even had filed appearance before the Court. So, even if it is contended that it was an ex parte decree, that is not the position. That was not a decree covered under O.IX, R.13, C.P.C. The Petitioner failed to file written statement and, therefore, there was an order by the learned Civil Judge to proceed with the suit without written statement. But before the plaintiff could lead evidence, the Petitioner filed application seeking permission to file his written statement. That application was allowed on condition to pay costs of Rs. 50. However, the Petitioner failed to pay the costs of Rs. 50 and, ultimately, the suit had to proceed without written statement. This application to allow the written statement was granted on 3rd September 1986. Then the Advocate for the Petitioner filed application on 20-11-1986 seeking time to deposit the costs. But even thereafter, the costs were not deposited. The matter was pending before the Court and it was fixed from time to time for recording evidence. On 18-8-1987, the plaintiff filed application seeking permission to lead evidence by way of affidavit. The petitioner has contended that thereafter, his Advocate told him that the matter was fixed for judgment and they could take steps only after the judgment was pronounced. The judgment was pronounced on 12-7-1988. It appears that even thereafter the present Petitioner did not take any steps.

4. The plaintiff then filed Regular Darkhast No. 32 of 1988 for execution of the decree and the notice of the execution petition was served on the petitioner on 21-3-1989 and thereafter the Petitioner filed application for certified copies of the judgment and decree on 1-10-1990 and obtained the copies on 22-10-1990. He then filed appeal and application for condonation of delay on 12-11-1990.

5. The learned Counsel for the Petitioner relied upon the ruling of this Court in the matter of Baburao Wankhede v. Sewa Sahakari Sanstha and ors. reported in 1989 Mh.L.R. 1144, and also the ruling of the Apex Court in the matter of Collector, Land Acquisition Anantnag and another v. Mst. Katiji and others, reported in A.I.R. 1987 S.C. 1353.

6. So far as the decision of this court in the matter of Baburao (Supra), is concerned, it is to be noted that there was the question of jurisdiction of the Cooperative Court and it was pointed out that contradictory observations were made by the Cooperative Court to find out whether the petitioner before the Court was amenable to the jurisdiction of the Co-operative Court, and in such circumstances, the delay of 10 years was condoned by this Court. The facts in the present matter are not such. There is no dispute regarding the jurisdiction of the trial Court.

7. The guidelines indicated by the Apex Court in the matter of Collector of Anantnag (cited supra) are always to be taken into consideration while considering the application for condonation of delay. It is true that the matter should not go merely on technicalities and substantial justice has to be done. It also may be true in certain cases that presumption of delay as occassioned deliberately would not stand. It is also true that everyday's delay, means delay by day to day, is not to be explained and if the Petitioner gives sufficient cause of a total period of delay, that can be considered. But even after applying all those principles laid down by the Apex Court, I do not think that in the present case, there are circumstances to condone the delay. The petitioner was given ample opportunity by the trial Court. He failed to appear any time though he had engaged Advocate. He failed to file written statement. Even then he was granted permission to file written statement on imposing costs. He failed to deposit those costs. Even then the time was extended. Even thereafter, the matter was not decided immediately, but was pending before the trial Court. The Advocate engaged by the Petitioner was there to look after the matter. However, the Petitioner failed to take any proper steps till the decision in the matter. No doubt, it is contended that some time his relative was sick, and some time, he himself was sick. But it is to be noted that no medical certificate was produced either in the trial Court or in the appellate Court in support of this contention. It is not the case that the Petitioner was not aware of the proceedings, but he is now taking a stand that he was advised not to move the matter till the decision was given by the Court. It is really difficult to believe that such advice would be given by the Advocate when the matter was pending before the trial Court and decision was not given in the matter, which was known to the Advocate.

So, this is a case where either the delay is deliberate or the matter is handled in most negligent manner by the Petitioner. There is no question of presuming that the delay was caused deliberately. The facts themselves speak that the delay was deliberate, because even after the notice regarding execution petition, which was received by the Petitioner on 21-3-1989, the appeal was preferred on 12-11-1990. This was too long a time for the Petitioner to say that he was sick and he had to collect the papers and so on. No papers were to be collected. Only copies of the judgment and decree were to be obtained for filing the appeal. In such circumstances, the application for condonation of delay was rightly rejected by the learned District Judge.

8. Here, it also must be noted that the Petitioner is treating the decree passed against him as ex-parte. But that is not the position. The Petitioner was properly served with the suit summons. He had filed appearance in the Court. He had sought adjournment before the Court. The matter was fixed time and again for filing written statement and he failed to file the written statement. So when there was (no) written statement from the defendant, the present Petitioner, it has to be considered that he had admitted all the averments made in the plaint, and in such circumstances, the judgment and decree may be either under O,VIII, R.5, or, O.VIII, R.10,C.P.C., and not an ex-parte decree covered under O.IX, R.13, C.P.C. So, it was not an ex parte decree. It is a decree passed because the defendant did not raise any defence. If all these things are taken into consideration, the revision is devoid of substance.

9. One more circumstance also has to be noted that the decree for specific performance is fully executed. However, the Counsel for both sides are not able to make a specific statement, as to whether decree for recovery of costs is duly executed or not. But, the recovery of costs is not very material aspect of the case. Material aspect is execution of sale deed, which is got executed by the Court through the Superintendent of the Court, and, in such circumstances, no purpose will be served any more.

10. Hence, this Civil Revision Application stands dismissed. Rule discharged. No order as to costs.

Revision dismissed.