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