Tulsi Ram Vs. Nand Lal And 4 Ors.

Allahabad High Court (Single Judge)

WRIT - A, 1719 of 2015, Judgment Date: May 04, 2015

                      HIGH COURT OF JUDICATURE AT ALLAHABAD 

?Court No. - 2 

Case :- MATTERS UNDER ARTICLE 227 No. - 1719 of 2015 

Petitioner :- Tulsi Ram 
Respondent :- Nand Lal And 4 Ors. 
Counsel for Petitioner :- Ramendra Asthana 
Counsel for Respondent :- Rajesh Kr. Varma 

Hon'ble Ashwani Kumar Mishra,J. 
This petition is directed against an order, whereby an application for condonation of delay, filed alongwith application under Order-9 Rule-13 CPC by the defendant, has been rejected. 
Briefly,stated facts are that a registered agreement to sell was executed by Ramveer infavour of respondent nos. 1,2 & 3 on 26.11.2007. No sale-deed, however, pursuant to it, was executed instead a sale-deed was executed by Ramveer in favour of his brother Tulsi Ram, who is the petitioner, herein, on 27.9.2008. Respondent Nos. 1,2 & 3, therefore, filed Original Suit No. 906 of 2008 for cancellation of sale-deed dated 27.9.2008 as well as for specific performance of registered agreement to sell dated 26.11.2007. It is further not in dispute that during the pendency of the suit, petitioner has further transferred the property to certain other persons on 1.2.2010. The suit was decreed ex-parte on 29.3.2010 after the present petitioner as well as Ramveer were duly served in the suit. It appears that the present petitioner had filed a written statement , where after, he failed to turn up, whereas, Ramveer did not file any written statement at all. 
Subsequently, an application under Order-9 Rule-13 CPC was filed on 7.1.2011 alongwith an application filed under Section 5 of the Indian Limitation Act. It was stated that the petitioner is a poor person , who went to Punjab for employment and, therefore, he was not aware about the proceedings being continued against him and, as such, he could not appear. It was also stated that parties, during the pendency of the suit, had entered into a settlement and certain amount was paid by the petitioners to the plaintiff, as such, the defendant - petitioner remained under a bonafide believe that the proceedings of the suit would not be pursued any further. 
This defence of the defendant has been strongly opposed by contending that the filing of application under Order-9 Rule-13 CPC was wholly collusive inasmuch as, at no stage of the proceedings Ramveer, who has executed agreement to sell, turn up and he set up his brother, in whose favour he executed a transfer deed. Submission advanced is that as the defendant had� no case, they were only trying to delay and� prolong the case. Trial court considered the application and by detailed and reasoned order, rejected the application filed under Section 5 of the Limitation Act, by observing that the defendant had ample opportunity� of contest and� had knowledge of the proceedings and they have deliberately chosen not to contest the matter. This order has been affirmed in revision and appeal filed against the rejection of application filed under Order-9 Rule-13 CPC has also been rejected. 
I have heard Sri Ramendra Asthana, learned counsel for the petitioner and Sri Amit Krishna, learned counsel appearing on behalf of defendant Nos. 1,2 & 3 and with the consent of the learned counsel for the parties, this petition is being disposed of finally, at this stage. 
Learned counsel for the petitioner submits that the delay has been occasioned bonafidely and the same ought to have been condoned. The facts noticed above, and brought on record, have been pressed to submit that sufficient explanation was� available on record for condoning the delay. 
Sri Amit Krishna, learned counsel for the respondents, on the other hand submits that� filing of the application was wholly collusive and the petitioner has not approached this Court with clean hands. It is also submitted that the petitioner has secured no right over the property in dispute. 
Having considered the submissions, this court finds that the registered agreement to sell� dated 26.11.2007, executed by Ramveer, at no prior point of time, was disputed by him, instead Ramveer executed a sale-deed infavour of his own brother on 27.9.2008. In the proceedings filed before the Civil Court, Ramveer , at no stage, appeared to contest the proceedings, instead the proceedings were contested by his brother on the basis of the sale-deed dated 27.9.2008. After filing the written submission, the present petitioner has also chosen not to contest� the proceedings. It is further not in dispute that during the pendency of the suit, present petitioner has further transferred the suit property to third party. The events, aforesaid, clearly goes to show that Ramveer, after having executed a registered agreement to sell, was only inventing devises to� avoid his obligations, created upon him, pursuant to agreement to sell� The manner in which the proceedings have been conducted by the petitioner and his brother clearly casts a shadow of doubt upon the bonafide of their conduct. In such view of the matter, if both the courts below have found that sufficient reasons for condoning the delay have not been brought on record, and the applications have been rejected, this court finds no good ground to interfere with it. 
Petition fails and is consigned to records. 
Order Date :- 4.5.2015