IMPORTANT POINT
Second appeal lies to High Court if High Court is satisfied that a substantial question of law is involved.

JUDGMENT :

J.K. MAHESHWARI, J.

Leave granted.

2. This appeal arises out of the judgment passed on 7.8.2018 by the High Court of judicature of Bombay, Bench at Aurangabad on Civil Application No. 12143 of 2017 in Second Appeal (ST) No. 31286 of 2017 dismissing the application seeking condonation of delay and the appeal as barred by limitation.

3. The facts leading to file this appeal are that a suit for specific performance of the contract was filed by the respondent against the appellant based on an agreement to sell dated 18.2.1998 with respect to an agricultural land bearing Gat No. 21/1, admeasuring 1.54 hectares, situated at Maouje Hingone Sim Tehsil Amalner. The said suit was partly decreed exparte by judgment dated 9.12.2002 in Special Civil Suit No. 2 of 2001 by Civil Judge (Sr. Division), Amalner directing recovery of a sum of Rs. 61,000/ along with interest @ 6% p.a. from the appellant (defendant therein), while relief for specific performance of contract was denied.

4. Respondent preferred first appeal before the High Court. The appellant was duly served and appeared in the said matter through the counsel. However, due to enhancement of pecuniary jurisdiction of the District Court, the said appeal stood transferred from the High Court to the District Court. Thereafter, a fresh notice was issued to the appellant, which was served through paper publication. The appellant did not appear, and taken pretext of non-service of the notice due to change of his address. The Adhoc District JudgeI, Amalner proceeding exparte, allowed the Regular Civil Appeal No. 31 of 2012 vide judgment dated 8.09.2015 and granted decree of specific performance in favour of respondent (plaintiff therein).

5. Aggrieved by the judgment of the Adhoc District JudgeI, appellant filed second appeal before the High Court of judicature of Bombay, Bench at Aurangabad on 18.9.2017, inter alia, contending that the judgment passed by the 1st Appellate Court came to his knowledge only on 14.9.2017. There was a delay of 650 days in filing the appeal. However, explaining the delay due to lack of knowledge of the decision in the appeal, prayer for condonation was made.

6. By the impugned judgment dated 07.08.2018, passed by the High Court in Second Appeal (ST) No. 31286 of 2017, the application seeking condonation was rejected, observing that the plea of non service of notice due to change of address was not acceptable. It was also observed that the appellant had himself been negligent and had not contacted his counsel engaged in the lower appellate court. The High Court, however, observed that the respondent, who had been litigating since last 17 years, ought not be deprived of the valuable right as accrued to him. With these observations, the application seeking condonation was rejected, dismissing the second appeal, as time barred.

7. Learned counsel for the appellant has strenuously urged that the suit was filed for specific performance of contract. As per the defence taken, it is visible from the agreement itself that it was not an agreement to sell but a money transaction, to which a sum of Rs. 90,000/has been refunded and only sum of Rs. 51,000/was remaining. In addition, Rs. 10,000/- paid later and endorsed therein. The trial court decreed the suit partly, for refund of earnest amount. The decree of specific performance is a discretionary relief, as specified under Section 16 of the Specific Relief Act. However, without giving an opportunity of hearing to contest the claim, the lower appellate court allowed the appeal of the respondent and passed an exparte judgment and decree of specific performance. Counsel argued that the dismissal of the second appeal on the ground of limitation is wholly unreasonable.

8. In support of the contentions, reliance has been placed on a judgment of this Court in the case of Perumon Bhagvathyu Devaswom Perinadu Village vs. Bhargavi Amma (dead) by LRS and Others (2008) 8 SCC 321 to contend that when appeal is pending in the appella