1. Suit for specific performance — Ex-parte decree — Application to set aside decree and condone delay filed by legal representatives of the deceased defendant. (Para 2 , 5 )
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2025 Supreme(SC) 441
SUPREME COURT OF INDIA
SUDHANSHU DHULIA, K. VINOD CHANDRAN, JJ.
K. Ramasamy – Appellant
Versus
R. Nallammal and Others – Respondents
Civil Appeal No. 3505 of 2025 [S.L.P. (C) No. 2177 of 2024]
Decided On : 03-03-2025
Advocates appeared:
For the Petitioner(s): Mr. Dama Seshadri Naidu, Sr. Adv. Ms. Daisy Hannah, AOR Ms. Oindrila Sen, Adv. Mr. Samarth Mohanty, Adv. Ms. Sneha Ahmed, Adv.
For the Respondent(s): Mr. Gopal Shankarnarayanan, Sr. Adv. Mr. M. Ramesh, Adv. Mr. Ajith Williyam S, Adv. Mr. P. Shankar, Adv. Mr. K. R. Padhmanabha Raja, Adv. Mr. B. Karunakaran, AOR
For the Petitioner(s): Mr. Dama Seshadri Naidu, Sr. Adv. Ms. Daisy Hannah, AOR Ms. Oindrila Sen, Adv. Mr. Samarth Mohanty, Adv. Ms. Sneha Ahmed, Adv.
For the Respondent(s): Mr. Gopal Shankarnarayanan, Sr. Adv. Mr. M. Ramesh, Adv. Mr. Ajith Williyam S, Adv. Mr. P. Shankar, Adv. Mr. K. R. Padhmanabha Raja, Adv. Mr. B. Karunakaran, AOR
The law favors diligence over indolence; mere claims of hardship without substantial evidence do not warrant the condonation of significant delays in legal proceedings.
Headnote:(A) Specific Relief Act, 1963 - Section 20 - Condonation of delay in setting aside ex-parte decree - Delay of 1312 days sought to be condoned without sufficient explanation - High Court's order reversing Trial Court's decision set aside - The law favors diligence over indolence, and mere claims of hardship without substantial evidence do not warrant condonation. (Paras 4, 10, 11)
Facts of the case:
The appellant sought to set aside an ex-parte decree for specific performance dated 13.04.2016, after a significant delay, claiming that the legal representatives of the deceased first defendant were unaware of the decree until execution proceedings commenced. (Paras 2, 5)
Findings of Court:
The High Court's decision to condone the delay was found to lack sufficient grounds, as the first defendant had not contested the suit during his lifetime, and the legal representatives were aware of the decree during execution proceedings. (Paras 11)
Issues: The main issues included whether the delay in filing the application to set aside the ex-parte decree was adequately explained and whether the High Court's reversal of the Trial Court's decision was justified. (Paras 6, 9)
Ratio Decidendi: The court emphasized that the principles of equity do not support condoning delays without substantial justification, particularly when the delay is significant and the parties had previously engaged in the proceedings. (Paras 10, 11)
Result: The appeal is allowed, restoring the Trial Court's order rejecting the application for condonation of delay.
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2. Appellant contends delay was unexplained and deliberate; Respondents argue genuine hardship, collusive agreement, and counsel's failure to return files. (Para 6 , 7 )
3. Delay was deliberate as the defendant failed to contest despite appearance and legal representatives failed to act promptly after appearing in execution proceedings. (Para 8 , 9 , 10 )
4. Condonation of delay for setting aside an ex-parte decree requires a non-deliberate explanation; equity favors the diligent and not the indolent. (Para 10 , 11 )
5. Appeal allowed — High Court order set aside — Trial Court order rejecting the application for condonation of delay restored. (Para 11 , 12 )
6. When can equitable jurisdiction be used to condone delay in setting aside an ex-parte decree?
Equitable jurisdiction is exercised to prefer substantial justice over technical considerations, provided the delay is non-deliberate and not a result of negligence or indolence. (Para 10 )
7. Does the failure of a lawyer to return files justify the condonation of a significant delay?
No, such a contention is insufficient if the party could have obtained certified copies of the records or was already aware of the decree through other proceedings, such as execution proceedings. (Para 9 , 10 )
8. How does the court treat a party who appears in a suit but fails to file a written statement?
Such failure, combined with a subsequent failure to contest the matter or explain the delay in seeking to set aside the resulting ex-parte decree, indicates a deliberate delay. (Para 8 , 10 )
JUDGMENT :
K. VINOD CHANDRAN, J.
1. Leave granted.
2. An ex-parte judgment & decree dated 13.04.2016, for specific performance, was sought to be set aside by application dated 04.01.2020, after condoning the delay of 1312 days, long after legal representatives of the 1st defendant appeared in an execution petition filed by the plaintiff.
3. We heard learned Senior Counsel, Sri. Dama Seshadri Naidu for the appellant and Sri. Gopal Shankarnarayanan, learned Senior Counsel for the respondents.
4. The impugned order referred to two decisions of this Court in Collector, Land Acquisition, Anantnag and Another vs. Mst. Katiji and Others, (1987) 2 SCC 107 and H. Dohil Constructions Company Pvt. Ltd. vs. Nahar Exports Limited, (2015) 1 SCC 680, both on the issue of condonation of delay and applied the principles of the former to condone the delay and allow the application, setting aside the ex-parte decree on payment of cost of Rupees One lakh and a further direction to file a written statement within a period of four weeks. The suit was also directed to be disposed of within a period of three months from the date of receipt of copy of order. The reasoning for the exercise of such equitable jurisdiction was on the ground that the predecessor-in-interest who was the defendant in the suit and who had also half interest in the property though had appeared before the Trial Court had not filed a written statement and later died, upon which the wife and son, the legal representatives came into the picture. The contention that the Counsel who was handling the case on behalf of the deceased had taken time to hand over the files; which were misplaced, eventually handed over on 16.12.2019 soon after which the petition to set aside the ex-parte decree was filed, found favour with the learned Single Judge. The High Court reversed the detailed order of the Trial Court which refused to condone the delay on the facts coming out from the records.
5. On the subject matter of the suit, suffice it to notice that the defendants 1 and 2 jointly owned the scheduled property and the first defendant; who is now deceased and is represented by his legal representatives, executed a power of attorney in favour of the second defendant. The second defendant on his behalf and also on behalf of the first defendant executed a sale agreement in favour of the plaintiff for consideration of Rs. 20 lacs out of which Rs. 5 lacs were paid. The plaintiff though always willing and ready to discharge his part of the agreement, the second defendant failed so to do and also refused to turn up at the Sub Registrar’s Office where the plaintiff had gone on 14.01.2016 with the balance sale consideration; resulting in the initiation of the suit for specific performance. The first defendant, the predecessor-in-interest of respondents herein appeared but did not file a written statement. The second respondent also did not appear and the Trial Court passed judgment in the case which is produced as Annexure P-6 herein. Admittedly an execution petition was filed in which the legal representatives, the respondents herein had appeared. It was much later that the petition for setting aside the ex-parte decree was filed.
6. Sri. Naidu argued that there was absolutely no cause for the High Court to reverse the well-considered order of the Trial Court. The delay was not properly explained and the grounds taken cannot at all be countenanced. The suit was decreed on 13.04.2016 and the death of the first defendant occurred much later on 22.02.2017. The claim that first defendant was hospitalised cannot be accepted since the document produced indicated it to be a hospitalisation long after the judgment and decree. Further the very contention taken up before the trial court that the files were handed over late, also cannot be countenanced since the very same lawyer continued to represent one of the legal representatives. There is no equity in now seeking to set aside a decree of specific performance especi
