The High Court has while dismissing the application for
condonation of delay made by the State dismissed even the
appeal preferred by the appellants in RFA No.806 of 2000
after obtaining the leave of the Court. While doing so the
High Court has not gone into the merits of the controversy
and has simply declined to interfere with the impugned
judgment and decree with the following observations:
“In view of the State Government having filed an
appeal in respect of the very judgment and decree,
the appeal in RFA 806/2000 would not merit
consideration and accordingly rejected.”
10. We are, in the peculiar facts and circumstances of the
case, are of the opinion that the High Court was not correct
in dismissing RFA No.806 of 2000 summarily as it has done.
Whether or not an appeal was maintainable at the instance
of someone who was not a party to the suit was itself a
matter which ought to have engaged the attention of the
High Court. The High Court has not, however, adverted to
that aspect and dismissed the appeal simply because the
appeal preferred by the State had been dismissed. That
apart, since an appeal against the very same judgment and
decree as was challenged in RFA No.296 of 2011 was
already pending before the High Court, the High Court ought
to have taken a more pragmatic view of the matter and
condoned the delay in filing of the said appeal on such terms
as it may it consider it proper. It is no doubt true that the
delay in filing of the State appeal was considerable but given
the circumstances in which the delay had occurred, we are
inclined to condone the same.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10418 OF 2014
(Arising out of S.L.P. (C) No. 19634 of 2012)
The Principal Govt. Pre-University
College & Anr.
Vs.
Mr. Jambu Kumar Mutha
Dated:November 20, 2014
Citation:AIR 2015 SC (SUPP)306
2. These appeals arise out of a common order dated 13th
February, 2012 passed by the High Court of Karnataka
whereby Regular First Appeals No.806 of 2000 and 296 of
2011 filed by the appellants have been dismissed.
3. In OS No.125 of 1996 plaintiff-respondent No.1 in these
appeals prayed for declaration of his title over the suit
property, removal of unauthorised construction raised over
the same and permanent injunction restraining defendants
in the suit from interfering with the plaintiff’s possession and
enjoyment of the suit property. The plaintiff’s case in a
nutshell was that he is the owner of the land measuring 1
acre 38 guntas situate in Malur Town, Kalur District fully
described in the plaint out of which the defendants had
unauthorisedly occupied an area measuring 377 feet x 34
feet to construct a school building. This unauthorised
occupation and construction was, according to the plaintiff,
to be removed and possession over the entire suit property
protected by issue of a permanent prohibitory injunction
against the defendants.
4. The defendant’s case, as set out, in the written
statement filed on their behalf was that the suit property
belonged to the State Government and that the same had
been used for construction of a Government school building
subsequently upgraded as a pre-university college being run
and maintained by the State Government. On the pleadings
of the parties the trial Court framed as many as eight issues
which were answered by the Court in terms of its judgment
and decree dated 23rd June, 2000. The end result of the
discussion on the issues was a decree in favour of the
plaintiff-respondent No.1 to the effect that he was the owner
of plaint Schedule “B” property unauthorised construction
raised over which was liable to be removed. The trial Court
further restrained the defendants from interfering with the
possession of the plaintiff over Schedule ‘A’ property which
was held to be in ownership and possession of the plaintiff.
5. Aggrieved by the Judgment and decree passed by the
trial Court, appellants in SLP (C) No.20841 of 2012
approached the High Court for permission to file an appeal
against the said judgment and decree which permission was
granted by the High Court by its order dated 30th November,
2000 culminating in the filing of RFA No.806 of 2000. No
appeal, it appears, was filed by the State Government or by
the Principal of the Government Pre-University College
defendants in the suit to challenge the judgment and decree
suffered by them. I.A. No.2 of 2008 was, however, moved by
them in RFA No.806 of 2000 seeking their transposition as
appellants in the said appeal. That prayer was declined by
the High Court by an order dated 18th November, 2010 with
the observation that the defendants-respondents No.2 and 3
in RFA No.806 of 2000 being parties to the suit were free to
challenge the judgment and decree passed against them in
separate appeals, if they so advised.
6. It was thereafter that defendants-appellants in SLP (C)
No.19634 of 2012 filed RFA No.296 of 2011 before the High
Court of Karnataka at Bangalore in which they filed an
application seeking condonation of intervening delay in the
filing of the appeals. That application has been dismissed by
the High Court in terms of the order impugned in these
appeals.
7. The High Court has not only found the explanation
offered by the appellants unacceptable but also considered
the appellant’s refusal to accept the offer made by the
plaintiff-respondent No.1 to be what it has described as
“inexplicable and deplorable”. The relevant part of the order
of the High Court reads as under:
“Yet another circumstance that is equally
inexplicable and deplorable is the fact that there was
a voluntary offer from the respondent, who has
benefit of a judgment and decree, to hand over the
disputed suit property described in Schedule-B to the
plaint for the benefit of the State Government, since
it is adjoining college property and since it would be
used for purpose of the College. The State
Government represented by the Government
Pleader, on instructions, has rejected the offer on the
ground that any such acceptance of the proposal
would require the approval of the cabinet and that
concerned officials were not in a position to commit
themselves in accepting the offer. Thereafter, this
court, no being convinced about the stand of the
State Government, which was indeed unexplained
and unreasonable, since the property was being
offered voluntarily for public benefit and the State
Government negating the same had called upon the
Government Pleader to obtain better instructions and
if necessary, to obtain the approval of the Cabinet
and the matter stood adjourned yet again. The
learned Additional Advocate General had then
entered appearance and had assured the court that
steps would be taken to accept the offer made by
the respondent. Again when the matter is listed
today the Government Pleader seeks an
adjournment on the specious plea that he needs to
file an application to tender additional evidence.
This stand on the part of the appellant is
indeed unfortunate and since the transfer to be
complete, even if there is an offer by the respondent,
would necessarily require a judgment and decree to
be passed in terms of a compromise that may be
effected and having regard to the stance of the
appellant it is painful task of this court to deal with
the appeal on merits.”
8. It is evident from the above passages extracted from
the main order that the High Court was not very happy with
the Government’s response to the proposal made by the
plaintiff-respondent No.1 to part with Schedule “B” property
by way of a settlement leaving the remainder of the property
to the plaintiff. Apart from the fact that Schedule “B”
property comprises just about 377 feet x 34 feet which is
already built upon thereby leaving hardly any space for the
students to use as a playground, Mr. Bhat, learned Counsel
for the appellants, argued that the High Court was not
justified adopting a coloured approach to the prayer for
condonation. He urged that the offer made by the plaintiffrespondent
was not acceptable and was in any case no
substitute for a proper determination of the issues that fell
for consideration.
9. The High Court has while dismissing the application for
condonation of delay made by the State dismissed even the
appeal preferred by the appellants in RFA No.806 of 2000
after obtaining the leave of the Court. While doing so the
High Court has not gone into the merits of the controversy
and has simply declined to interfere with the impugned
judgment and decree with the following observations:
“In view of the State Government having filed an
appeal in respect of the very judgment and decree,
the appeal in RFA 806/2000 would not merit
consideration and accordingly rejected.”
10. We are, in the peculiar facts and circumstances of the
case, are of the opinion that the High Court was not correct
in dismissing RFA No.806 of 2000 summarily as it has done.
Whether or not an appeal was maintainable at the instance
of someone who was not a party to the suit was itself a
matter which ought to have engaged the attention of the
High Court. The High Court has not, however, adverted to
that aspect and dismissed the appeal simply because the
appeal preferred by the State had been dismissed. That
apart, since an appeal against the very same judgment and
decree as was challenged in RFA No.296 of 2011 was
already pending before the High Court, the High Court ought
to have taken a more pragmatic view of the matter and
condoned the delay in filing of the said appeal on such terms
as it may it consider it proper. It is no doubt true that the
delay in filing of the State appeal was considerable but given
the circumstances in which the delay had occurred, we are
inclined to condone the same. We accordingly allow these
appeals, set aside the orders passed by the High Court,
condone the delay in the filing of RFA No.296 of 2011 subject
to payment of costs of Rs.50,000/- to be paid to the
defendant-respondent in the said appeal and remit the
matter back to the High Court for hearing and disposal of
RFA Nos.806 of 2000 and 296 of 2011 on merits.
…………………………..…….…..…J.
(T.S. THAKUR)
…………………………..……………..J.
(R. BANUMATHI)
New Delhi;
November 20, 2014
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