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2017 Supreme(Del) 1815
IN THE HIGH COURT OF DELHI AT NEW DELHI
C. HARI SHANKAR, GITA MITTAL, JJ.
Vikram Sandhu - Appellant
Versus
Sardar Bhag Singh & Ors. (Since Deceased) Thr Legal Representatives - Respondents
FAO (OS) No. 183 of 2017
Decided On : 31-05-2017
Advocate Appeared:
For the Appellant : Mr. Sandeep Sharma, Mr. Bhrigu Dhami
The need for the appellant to provide a cogent explanation for the delay in restoration of the suit and the importance of allowing the title in immovable property to attain certainty.
Headnote:
Delay - Restoration of Suit - Order IX Rule 9, Section 151 CPC, Section 5 of Limitation Act, 1963 - [Order IX Rule 9, Section 151 CPC, Section 5 of Limitation Act, 1963]
Fact of the Case:
The appellant filed a suit for specific performance, damages, and injunction against the respondents. The suit was dismissed due to non-appearance of the appellant. The appellant then filed applications for restoration of the suit after a delay of almost 12 years.
Finding of the Court:
The court found that the appellant was negligent in prosecuting the suit and failed to provide a cogent explanation for the delay in filing the restoration applications. The court held that the title in immovable property should be allowed to attain certainty and should not be disturbed at the mere asking of the plaintiff.
Issues: Delay in restoration of suit, negligence of the appellant, title in immovable property
Ratio Decidendi: The court emphasized the need for the appellant to show cause for condonation of delay and restoration of the suit. The court also highlighted the importance of allowing the title in immovable property to attain certainty.
Final Decision: The appeal was dismissed with costs quantified at Rs.50,000, to be deposited to the Delhi High Court Legal Service Authority within four weeks.
Gita Mittal, J.
1. The instant appeal has been filed assailing the order dated 29.03.2017 whereby the learned Single Judge has dismissed I.A. No.2217/2017 (filed under Order IX Rule 9 read with Section 151 CPC), I.A. No.2218/2017 (filed under Section 5 of Limitation Act, 1963 read with Section 151 CPC) and IA No.2219/2017 (under Section 151 CPC) for condonation of 16 days delay in re-filing.
2. The facts of the case are in narrow compass. The parties to the present appeal entered into an Agreement to Sale dated 09.09.1994 for sale of the property bearing 2nd Floor Terrace, J-110, South Extension, Part-I, New Delhi, which the appellant had agreed to purchase. The appellant had addressed a letter dated 28.09.1994 to the respondents to abide by the said agreement. On failure on the part of the respondents to perform their part of the contract, the appellant had sent them a legal notice dated 29.08.1995, which was followed by filing of CS(OS) No.1874/1997 seeking specific performance, damages as well as injunction against the respondents.
3. The record as placed by the appellant before us shows that the appellant was most nonchalant and non-serious prosecuting the suit. On 19.02.2003, upon failure of the appellant to file the documents despite being given a last opportunity, the appellant was precluded from filing documents. As a result, no documents were made available to the defendant for admission/denial of the documents. As the appellant failed to conduct admission/denial of the documents of the respondents herein, they were deemed to be admitted under Order XII Rule 2A of the CPC. Consequently, by order dated 17.02.2004, the right of the appellant to file replication in the suit was closed. It was also observed in the said order that since the appellant failed to file originals of the documents, the right of the appellant to file originals of the documents in the said suit was also closed.
4. Finally on 23.03.2005, the learned Single Judge dismissed the said suit on account of non-appearance of the appellant.
5. No steps at all were taken for a long period of almost 12 years. Thereafter, it was only in January/February 2017, the appellant filed the aforesaid application before the learned Single Judge. When the application was listed on 20.02.2017, the learned Single Judge observed as follows:
“2. Not only are the averments in the application for restoration vague but are totally unsupported by any documents. Though the applicant/plaintiff at the time of institution of the suit claimed to be in possession of the premises agreed to be sold for a sale consideration of Rs.27,00,000/- out of which the plaintiff claimed to have paid Rs.1,00,000/- only and on perusal of the file it transpires that the suit for possession filed against the applicant/plaintiff was also pending at that stage and the counsel for the applicant/plaintiff today states that applicant/plaintiff today is not in possession but neither any particulars in that regard have been given nor any documents with respect to the proceedings in the suit for possession been filed.
3. It has been vaguely stated that an appeal was filed against the decree for possession and which was allowed.
4. It is inexplicable as to why the applicant/plaintiff, when filed the appeal against the decree for possession, did not activate the present suit or as to why the applicant/plaintiff did not become aware of the dismissal of the suit in default when possession of the premises was taken from the applicant/plaintiff.
5. It cannot be lost sight of that the applicant/plaintiff in a suit for specific performance of an Agreement of Sale is required to be ready and willing throughout the pendency of the suit also and the conduct of the applicant/plaintiff shows that the applicant/plaintiff indeed was not ready and willing and no purpose for this reason also will be served in restoring the suit if ultimately it has to suffer the same fate.
6. However the counsel for the applicant/plaintiff be
