RANGA VENKATASWAMY MULLA Vs. PRABHAKAR HANUMANT CHAVAN

JUDGEMENT

(1.) THESE two civil revision petitions are directed against a common order dated 8th october, 1993 in r. a. nos. 85 and 86 of 1992. The petitioner before me was the appellant in both these appeals which were preferred against the two decrees passed by the trial court against the appellant. The dispute relates to a rather involved property transaction and it is alleged that the respondents 2 and 3 sold the property in question under a registered sale deed to the petitioner and respondent 4 in the year 1985 and that the purchasers were put in possession of the property. In the same year, two suits came to be filed one by the respondents 2 and 3 who contended that the sale should be set aside on the ground that it is vitiated by fraud and the second suit was filed by the first respondent to this proceeding who contended that there is a registered agreement to sell the property in his favour as far back as in the year 1983 and that consequently he is entitled to specific performance. The trial court heard the two suits together and decreed both of them. The sale in question was set aside and the court also passed a decree for specific performance in favour of respondent 1. It is against these two decrees which were passed on 11-12-1991 that the two appeals were filed. These two appeals were filed on 9-6-1992. In the meanwhile, the petitioner had applied for certified copies on 30-12-1991 and the certified copies were ready on 25-1-1992. These were collected only on 19-2-1992 and the appeal court therefore computed the limitation for filing the appeal as 30 days plus 26 days which the appellant was entitled to being the copying time. The entire controversy before me is confined to the question as to whether the delay in filing the appeals ought to have been condoned or not. The appellant's contention was that he was unwell, that he was suffering from typhoid and that this was a prolonged ailment which prevented him from contacting his Advocate and attending to the filing of the appeals and in support thereof he has not only given evidence but he has examined his doctor who is P. W. 2. The respondents seriously contested the correctness of the ground that had been pleaded as a result of which the appeal court was required to assess as to whether just and sufficient cause had been shown for the delay and the learned judge after a detailed evaluation of the evidence before him held that the appellant had failed to discharge this legal obligation and therefore dismissed both the appeals. The present civil revision petitions are directed against that order.

(2.) I need to record here that as a necessary consequence of the dismissal of the applications for condonation of delay by the appeal court that a consequential order was passed whereunder the appeals themselves stood dismissed. The respondents' learned Advocate has pointed this fact out to the court because he has contended that the present civil revision petitions can only be confined to the question as to whether the delay condonation applications were rightly rejected or not and he submits that irrespective of whether the petitioner succeeds in the civil revision petitions that it can have no bearing on the dismissal of the appeals. His contention is that even if that was a consequential Order, that it has the effect of virtually disposing of the appeals and that therefore, in the absence of a separate proceeding for setting aside the dismissal order and restoration of those appeals, which according to him can only be through a regular second appeal, that the appeals cannot be restored. Learned Advocate submits that this argument is not academic because he sought to contend that there have been several other developments in this litigation and he also submitted that on merits the petitioner has no case and if this being the position, that the question of going into the aspect of the correctness or otherwise of the delay condonation applications is rendered academic. What was sought to be contended was that even if the petitioner succeeds in the civil revision petitions, that the appeals having been dismissed and that order having become final not having been challenged, that nothing would survive in the litigation. As far as this aspect of the matter is concerned, petitioner's learned Advocate submitted that the appeals have not been dismissed on merits neither have they been dismissed by the court on the ground that they are devoid of substance and consequentially, that since the dismissal was automatic as a consequence of the dismissal of the delay condonation applications that if this court were to allow the civil revision petitions, that the order being one and the same, the appeals would also as of necessity have to be revived. To my mind, there is considerable substance in this argument because it is well-settled law that a second appeal could only be directed against a decision on merits and in the present instance where the court has dismissed the appeal only because it has been filed beyond the period of limitation, the setting aside of that order would automatically revive the appeals. I am unable to uphold the technical objection that in the peculiar circumstances of this case, separate appeal proceedings were necessary with regard to the dismissal of the appeals. It is true that some times the law prescribes technical requirements but upholding this argument would be carrying the issue too far and that to my mind, is not the spirit of the law.

(3.) PETITIONER's learned Advocate sought to submit that there was nothing more that his client could do beyond giving evidence in support of his plea that he was laid up with typhoid and that this was the ground on which the delay had occurred. He also contends that the utmost that the petitioner could do was to summon his doctor to give evidence in order to substantiate the ground on which he had prayed for condonation of delay. Learned Advocate submits that the learned trial judge has come down heavily on the doctor who was unable to produce any record whatsoever of the so-called treatment of the petitioner on 7-2-1992 and he submits that the petitioner cannot be held responsible for this State of affairs. Furthermore, he submits that in a situation where the petitioner was down with typhoid and was advised medication and bed rest that he was not in a position to produce any other documentary evidence in support of his illness and that the learned judge having disbelieved his plea only on this ground is manifestly harsh. On the other hand, the respondents' learned Advocate has submitted that this is one of the cases in which the court has very correctly questioned the plea put forward by the petitioner and that on a careful and meticulous examination of the evidence, the learned judge has very correctly come to the conclusion that the entire story of illness was a fabrication. Respondents' learned Advocate submitted that if this be the conduct of the petitioner, that he is totally disqualified from any indulgence from this court. Basically what was contended was that this is not a case in which default or poverty or helplessness was pleaded in which case the court could bestow liberality or sympathetic consideration but that this was an instance where specific justification was pleaded on the ground of serious illness and where it can be concluded that the entire plea was false that virtually no mercy should be bestowed on the petitioner. He submits that the courts normally take a charitable view in applications for condonation of delay but this is one of the cases in which the circumstance have been aggravated and where the appeal court has very rightly refused to exercise any discretion in favour of the appellant.