Jayabai Vs Balajinaiaka

THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 6.11.2025 PASSED ON IA NO.1 IN RA NO.58/2024 ON THE FILE OF SENIOR CIVIL JUDGE AT KADUR., DISMISSING THE IA NO.1 FILED UNDER SEC.V OF THE LIMITATION ACT., AND FILED AGAINST THE JUDGMENT AND DECREE DATED 2.01.2023 PASSED IN OS NO.643/2021 ON THE FILE OF II ADDITIONAL CIVIL JUDGE AND JMFC, KADUR.,

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

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ORAL JUDGMENT

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This appeal is preferred by the defendants

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challenging the Judgment and Decree rendered by the Senior Civil Judge, Kadur in R.A. No. 58/2024, which confirmed the Judgment and Decree passed by the II Additional Civil Judge, JMFC at Kadur in O.S. No.

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643/2021, whereby, the learned trial Judge decreed the suit of the respondent-plaintiff directing the defendants to receive balance sale consideration amount and to execute the registered sale deed in favour of the respondent - plaintiff within 2 months from the date of the order and put the plaintiff in possession over the schedule property and in the event of failing to do so, to execute the registered sale deed within 2 months from the date of the order. Plaintiff was given the liberty to deposit the balance sale consideration and to get the sale deed registered through the Court process and take possession in accordance with law.

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Parties to the proceedings shall be referred to

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as per the status before the trial Court as plaintiff and defendants.

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Brief facts of the case are that the plaintiff filed

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a suit against the defendants seeking specific performance of the agreement of sale dated 13.09.2021. It is the case

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of the plaintiff that by the registered agreement of sale dated 13.09.2021, the defendants being the owners of the suit schedule property agreed to sell the property in favour of the plaintiff for a total sale consideration of ₹2,00,000/-

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and as an earnest money ₹1,50,000/- was paid by the plaintiff by way of cash which is acknowledged in the agreement of sale registered before the concerned authorities.

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It is the case of the plaintiff that he was ready and willing to perform his part of the contract and the defendants fail to honour the commitment. Hence, he got issued a legal notice on 21.10.2021 requesting the defendants to come forward to execute the sale deed and perform the part of the contractual obligation. Despite which, the defendants having not come forward to complete their part of the promise of registering the sale deed, plaintiff was constrained to file the suit for specific performance of the contract. Upon filing of the suit,

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summons were issued to defendants who appeared before

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the Court, however, did not file written statement.

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In order to substantiate the case of the plaintiff,

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he got examined himself as PW-1 and marked Exs.P.1 to P.28 and closed his side. There was absolutely no contest by the defendants despite appearance before the Court. The learned trial judge formulated the following points for

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consideration.

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1. Whether the plaintiff proves that the defendant has executed sale agreement dated 13.09.2021 by receiving advance sale consideration of Rs.1,50,000/-?

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2. Whether the plaintiff proves that he is always ready and willing to perform his part of contract?

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3. Whether the plaintiff is entitled for the relief as sought for?

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What order or decree?

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Upon consideration of the materials placed on

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record, both oral and document, the trial Court agreed with the contentions of the plaintiff with regard to the agreement having been executed and the defendants

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having not honoured the commitment to fulfill the terms and conditions of the contract by registering the sale deed

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and also to the fact that the sale agreement was duly registered and the defendants have received substantial amount of consideration of ₹1,50,000/-, the plaintiff having approached the Court within the reasonable time and there being no challenge made to the plaint averments or to the suit filed by the plaintiff, the trial Court decreed the suit of the plaintiff, directing the defendants to receive the balance sale consideration amount and to execute the registered sale deed in favour of the plaintiff within a period of 2 months from the date of judgment and consequently put the plaintiff in possession of the suit schedule property and in the event of failure to do so, the plaintiff was given the liberty to get the sale deed registered through the Court process and take possession in accordance with law.

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Being aggrieved by the judgment and decree rendered by the trial Court, the defendants approached

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the Senior Civil Judge at Kadur in Regular Appeal No. 58/2024 challenging the said judgment. While filing the said appeal, there was already a delay of 530 days. Hence, an application was filed to condone the delay of 530 days in preferring the appeal. Upon summons being served to the respondent-plaintiff, the learned first Appellate Court ordered for enquiry to be conducted on the delay and appellant No. 10 adduced evidence as PW-1, produced several documents under Exs.P.1 to P.5 to show that the appellants belonged to below poverty line and produced Ration Cards and other materials to show they did not have sufficient means of source of income to pay the Court

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fees. Therefore, there was a delay in making arrangements for securing the financial sources to pay the Court fee, which delayed the process in filing the appeal.

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On the contrary, the respondent-plaintiff, cross-

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examined the witness, filed documents Exs. R.1 and R.2 to show the RTC extracts which was admitted by the defendants in the cross-examination with regard to

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possessing 2 acres and 30 guntas of land and so also to the fact that she, PW-1 - defendant No. 10, was working as an Anganvadi teacher, getting honorarium of ₹11,000/per month and also possessed several other landed properties, through which the defendants could have approached the Appellate Court well within time by paying the necessary Court fees from the sources which were available or if the same was true, nothing prevented the defendants to file an appeal as an indigent person. No cogent reasons are forthcoming with regard to not filing the appeal well within time despite the defendants participating in the suit, having knowledge of the proceedings in the trial Court, as well as the judgment and decree rendered by the trial Court.

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The plaintiff took up a plea that there was an inordinate delay of 530 days. Just deliberate and no proper explanation is provided for condonation of the delay. The first Appellate Court having considered all these aspects including the fact of the defendants' plea of not

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having necessary source of income to pay the Court fee and not having the knowledge of the legal intricacies and belonging to below poverty line stream, did not agree with the contentions put forth by the defendants, on the contrary agreed with the contentions put forth by the plaintiff, dismissed the application for condonation of delay. Consequently, the appeal itself having been barred by time.

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I have heard the learned counsel for the appellant and learned counsel for the respondent - plaintiff.

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The vehement contention of the learned counsel for the appellants - defendants, the judgment and decree rendered by the trial Court is illegal, perverse and contrary to the materials on record and also opposed to principles

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of natural justice for the reason that the appellants - defendants were not provided an opportunity to defend the case effectively. It is also the vehement contention of

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learned counsel for the appellants – defendants that the defendants were not aware of the legal intricacies and were not informed by the learned counsel appearing before the trial Court with regard to non-filing of the written statement and the stages of the suit proceedings and the suit having been decreed without the contest. It is further contented by learned counsel for the appellantsdefendants that there was no transaction of an agreement of sale per se as contented by the plaintiff. It was only an agreement which was executed for the purpose of security for lending of money and it was not an agreement to sell the property as portrayed in Ex.P.24 agreement dated 28.07.2021 and registered on 13.09.2021.

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It is also the contention of learned counsel for

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the appellants - defendants that the trial Court has decreed the suit solely on the basis of the evidence and documents produced by the plaintiff and without there being any defence of the appellants – defendants, so also there was no cross-examination of the plaintiff by the

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defendants. As stated earlier, it is contented by the learned counsel that the appellants were not aware and hence on coming to know of the filing of the Execution Petition pursuant to the judgment and decree, they preferred an appeal challenging the judgment and decree

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but by the time there was a delay of 530 days in preferring the appeal. They filed an application for condonation of delay which ought to have been allowed by the first Appellate Court taking a pragmatic and lenient view or rather a stringent approach has been taken by the

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first Appellate Court dismissing the application for condonation of delay and consequently dismissing the appeal itself. It is contented by learned counsel for the appellants that the delay has been properly explained by the appellants in the affidavit annexed to the application and a better affidavit has also been filed before this Court.

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Therefore, he seeks to set aside the judgment rendered by the trial Court as well as the first Appellate Court and to

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provide an opportunity to contest the matter and defend the case.

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Per contra learned counsel for the respondent-

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plaintiff, vehemently contends that there is no illegality or perversity in the judgment rendered by both the Courts. The agreement of sale is a registered agreement. Before

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filing the suit, the plaintiff had got issued a legal notice to the defendants, which was conveniently not replied by the defendants. Upon filing the suit, the defendants have appeared before the Court, but did not bother to file the written statement so also did not participate in the Lok Adalat and Mediation process however, despite granting sufficient opportunity before the trial Court to file the written statement, cross - examine PW-1 and to lead their

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own evidence, nothing was diligently performed by the appellants - defendants and left with no other alternative after granting sufficient time, the trial Court has decreed the suit.

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It is further contented by the learned counsel

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for the respondent - plaintiff that even while filing the appeal before the first Appellate Court, the appellants – defendants have not diligently approached the Court within the reasonable time and there is a huge delay of 530 days in filing the appeal. There is also no proper explanation to condone the delay, much less any reason satisfactory or plausible explanation for condonation of delay. Having considered the same, the first Appellate Court has rightly rejected the application and consequently the appeal itself, which does not call for interference.

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Having heard the learned counsel, the point that would arise for consideration is:

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1. Whether the appellants herein have made out any good ground or cogent reason to interfere with the judgment rendered by both the Courts ?

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2. Whether this Court requires to frame substantial questions of law as urged in the appeal?”

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The agreement of sale is executed on

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28.07.2021 and registered on 13.09.2021 is not disputed

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by the counsel for the defendants. But the contention taken is that it is not an agreement of sale but is a security loan agreement for having obtained loan from the plaintiff. I have gone through the entire order sheet of the trial Court, the impugned judgment of the trial Court, as well as the judgment of the first Appellate Court and the arguments advanced by the learned counsel for both parties.

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Pursuant to filing the suit the defendants have

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not filed their written statement despite participating in the suit proceedings by filing Vakalath. They have not bothered to cross-examine PW-1, neither they have filed their own evidence despite the trial Court granting sufficient time. Thereafter, the suit was decreed in favour of the plaintiff. Had there defendants been diligent, they could have filed the appeal well within time and contested the matter by stating that they have to be provided an

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opportunity to participate as there was no defence before the trial Court. In the present case on hand, right from day one of the suit proceedings, when the defendants appeared in the Court, but did not file the written statement, did not file their evidence, did not crossexamine PW-1, have further shown negligence in not approaching the first Appellate Court well within time. There is a delay of 530 days. No proper explanation is provided for the delay. The explanation so provided does not warrant merit, as the same is countenanced in the cross-examination, and so also it is not a believable one.

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It is also seen on the merits that the plaintiff on

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the basis of the registered agreement of sale for a sale consideration of ₹ 2,00,000/- has paid a sum of ₹ 1,50,000/- by way of cash which is acknowledged in the agreement itself. Pursuant to the judgment and decree, the plaintiff has deposited the balance sale consideration amount of ₹50,000/- before the trial Court. Therefore, the entire sale consideration amount is paid. The judgment in

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the case of Pathapati Subba Reddy (died) by LRs and Others Vs. Special Deputy Collector(LA) reported in

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(2024)12 SCC 336 rendered by the Hon’ble Apex Court has dealt with how a delay application has to be decided. It is the old school of thought which held that the delay application requires to be considered in a pragmatic manner, leniently by virtue of the judgment in the case of Pathapati Subba Reddy ( supra ), in the age of technology and advancement of technology, nothing prevents the aggrieved person to approach the Court within a reasonable time. Therefore, the delay should be considered on the facts and circumstances of each case, the delay having been caused is not properly explained, I do not find good ground or cogent reason to show indulgence in this matter for framing substantial questions of law, as none exist.

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