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2010 (4) Supreme 671
SUPREME COURT OF INDIA
Deepak Verma and K.S. Radhakrishnan, JJ.
Improvement Trust, Ludhiana — Appellant
versus
Ujagar Singh & Ors. — Respondents
Civil Appeal Nos. 2395 of 2008
with
Civil Appeal Nos. 2397 of 2008
Decided on : 9-6-2010
(b) Limitation Act – Section 5 – Unless mala fides are writ large on the conduct of the party, generally as a normal rule, delay should be condoned – An attempt should always be made to allow the matter to be contested on merits rather than to throw it on such technicalities. (Page 6 -3; 7-1)
Facts of he case:
1.Land belonging to Respondent Nos. 1 to 4 was acquired by the appellant Improvement Trust, Ludhiana, for development scheme popularly known as “550 Acres Scheme”. Reference Court had passed the Award and fixed the amount of compensation together with interest at the rate of 9% per annum from the date of the issuance of the notification in favour of Respondent Nos. 1 to 4.
2.The appellant did not deposit the amount. Therefore the property was put to an auction sale.Respondent No. 5 herein, M/s. Jagan Singh and Company was declared as the highest bidder. Sale was knocked down in its favour, and later confirmed in its favour.
3.The appellant then filed objections under Order 21 Rule 90 CPC raising various grounds.
4.Appellant’s objections came to be dismissed in default due to non-appearance. The sale was confirmed and the deed was executed in favour of respondent No.5.
5.The appellant thereafter filed miscellaneous appeal before the District Judge, Ludhiana, which was dismissed.
6.Appeal/revision/review filed thereagainst before the High Court were also dismissed.
Finding of the Court:
While considering condonation of delay too technical approach should be avoided.
Key Points: - (!) The judgment emphasizes that unless mala fides are writ large, delay should generally be condoned to allow contested merits (Limitation Act, Section 5) and avoid a straight jacket formula; each case must be weighed on its facts. (!) - (!) Condonation should consider that two months and a few days of delay were not fatal to the appeal for default, and the matter should be decided on merits rather than dismissing on technicalities. (!) - (!) The court remitted the matter to the Executing Court to decide the objections under Order 21 Rule 90 CPC on merits and in accordance with law, highlighting ends of justice and liberal condonation in appropriate circumstances. (!) - (!) There is encouragement to proceed with merits-focused adjudication to avoid denying justice due to procedural delays, especially where the delay is not grossly inexcusable. (!) - (!) The appellant’s conduct and reasons for delay (including communication failures by counsel) were weighed; the court found delay not so huge as to warrant dismissal on hyper-technical grounds and allowed limited relief with conditions (costs, payment to respondent, etc.). (!) (!) - (!) The decision reiterates that ends of justice may be met by setting aside certain orders and remitting for merits-based consideration, with costs imposed. (!) (!)
ORDER
Heard counsel on either side at length. Records perused.
2. Even though both sides had cited several decisions of this Court on the scope and application of Section 5 of the Limitation Act, but it is neither necessary nor required to deal with those cases in the peculiar facts and circumstances of this case.
3. Land belonging to Respondent Nos. 1 to 4 was acquired by the appellant Improvement Trust, Ludhiana, for development scheme popularly known as "550 Acres Scheme". Reference Court had passed the Award and fixed the amount of compensation at rupees 4,27,068.20 paise together with interest at the rate of 9% per annum from the date of the issuance of the notification in favour of Respondent Nos. 1 to 4. The appellant did not deposit the amount. Respondent Nos. 1 to 4 had to approach the Executing Court for recovery of the amount awarded. The property described as Khewat No.867 Khautani No.971 Khasra No.272 admeasuring 7K-18M entered in jamabandi for the year 1988- 89 in village Jabaddi No.160 Tehsil and District Ludhiana was attached for realisation of the decretal amount. Later a notice under Order 21 Rule 66 of the Civil Procedure Code (hereinafter shall be referred to as 'C.P.C.') was stated to have been issued to the appellant. However, despite service of notice, none appeared on behalf of the appellant /judgment debtor.
4. The property was put to an auction sale on 12/8/1992. Respondent No. 5 herein, M/s. Jagan Singh and Company (hereinafter shall be referred to as 'the Company') offered Rs. 22,65,000/-, and thus was declared as the highest bidder. Sale was knocked down in its favour, and later confirmed in its favour.
5. The appellant then woke up from its slumber and filed objections under Order 21 Rule 90 Civil Procedure Code raising various grounds. Executing Court then framed issues, reproduced by the learned Single Judge in the impugned order. The case was thereafter fixed for recording of the evidence of judgment-debtor on 19/3/1993, 17/4/1993, 8/5/1993 and 29/5/1993. However, on the aforesaid dates none appeared on behalf of the appellant. Consequently, the evidence of appellant/judgment debtor was closed. As a necessary consequence thereof appellant's objections came to be dismissed in default due to non-appearance.
6. Mr. P.K. Jain, Advocate used to appear for the appellant- Trust, but did not appear on the above mentioned dates. The order-sheet dated 29/5/1993 reproduced in the impugned order passed by the learned Single Judge reflected the same. Case was posted for confirmation of sale on 5/6/1993, again there was no appearance and the sale was confirmed in favour of respondent No.5. It is reported pursuant thereto sale deed was executed in its favour through court. Out of the bid amount of Rs. 22,65,000/- the awarded amount due to respondents 1 to 4 was released, and remaining is lying in deposit with the Executing Court.
7. The appellant thereafter filed miscellaneous appeal before the District Judge, Ludhiana, challenging the correctness propriety and validity of the orders passed on 29/5/1993 and 5/6/1993, made over to Additional District Judge, Ludhiana. Said appeal was barred by limitation by two months and few days, exact delay has not been reflected in any of the orders. But after going through the files it appears that delay was for about two months and few days. An application under Section 5 of the Limitation Act was filed to condone delay but was dismissed by the Appellate Court stating therein that no good and sufficient grounds were shown for condonation of delay. Consequently the appeal was also dismissed.
8. Thereafter, appellant under some mistaken advice filed execution second appeal in the High Court of Punjab and Haryana at Chandigarh registered as Execution Second Appeal No. 820 of 1994. On objections being raised with regard to its maintainability, in the light of the specific bar created under Section 104 of the Civil Procedure Code, learned Single Judge converted the appeal into civil r
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