Delay/latches: Condonation of delay of 650 days in filing appeal against the ex parte decree – Suit for specific performance of contract by respondent partly decreed exparte and recovery of Rs.61,000 ordered while dismissing relief for specific performance – Respondent filed appeal before High Court – Appellant was duly served and appeared in the said matter through his counsel – However, due to enhancement of pecuniary jurisdiction of District Court, appeal stood transferred to District Court from High Court and fresh notice issued to appellant through paper publication – Appellant did not appear and District Court proceeding ex parte allowed appeal and granted specific performance in favour of respondent – Appellant filed appeal before High Court – There was delay of 650 days in filing appeal – His plea of non service of notice due to change of address, not accepted by High Court – High Court dismissed appeal as time barred holding that sufficient cause for delay was not established – On appeal, held: In this case, appellant had produced the documents including voters list/aadhar card showing his change of address from Amalner to Nashik – On the other hand, the respondent had produced the voters’ list of Amalner itself contending that the name of appellant was still existing – In such a situation, without any enquiry and without arriving at a finding disbelieving the explanation of the appellant, High Court was not justified in rejecting application for condonation of delay – Order of High Court set aside – High Court to take up second appeal and dispose it of expeditiously.
Disposing of appeal, the Court
HELD: 1 In this case, the appellant had also produced the documents including voters list/aadhar card showing his change of address from Amalner to Nashik. On the other hand, the respondent had produced the voters’ list of Amalner itself contending that the name of appellant is still existing. However, in such a situation without any enquiry and without arriving at a finding disbelieving the explanation of the appellant, the High Court was not justified in rejecting the application for condonation of delay. [Para 14][1130-B-C]
2. As per the judgment of Perumon Bhagvathy Devaswom, the Court, while dealing with the issue of condonation of delay in respect of matters pending at the appellate stage, advocates usually inform the litigants who are to be in contact. Sometimes, they assure their clients that they will give information to them as and when matter would be ripe for hearing. Thus, the High Court erred in dismissing the second appeal solely on the ground of limitation. A second appeal lies to the High Court if the High Court is satisfied that a substantial question of law is involved. The High Court shall take up the second appeal for admission as expeditiously as possible. [Paras 15, 16][1130-C-F]
Perumon Bhagvathyu Devaswom Perinadu Village v. Bhargavi Amma (dead) by LRS and Others (2008) 8 SCC 321:[2008] 11 SCR 1 – relied on.
Mohan v. R. Madhu 2019 (16) SCALE 602; Rohin Thapa v. Rohit Dora (2019) 7 SCC 359 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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