PRINL.GOVT.PRE-UNIV.COL.& ANR Vs. JAMBU KUMAR MUTHA
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 10418, 10419 of 2014, Judgment Date: Nov 20, 2014
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. ...Appellants
Vs.
Mr. Jambu Kumar Mutha ...Respondent
With
CIVIL APPEAL NO. 10419 OF 2014
(Arising out of S.L.P. (C) No. 20841 of 2012)
Sri S.Prakash (Dead) and Ors. ...Appellants
Vs.
Sri Jambu Kumar Mutha and Ors. ...Respondents
J U D G M E N T
T.S. THAKUR, J.
1. Leave granted.
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 plaintiff-respondent 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