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       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  

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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  

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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  

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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:   

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“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  

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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.”

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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  

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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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