THE PRINCIPAL GOVT. PRE-UNIVERSITY COLLEGE & ANR.versusMR. JAMBU KUMAR MUTHA

                         [2014] 13 S.C.R. 1390


A             THE PRINCIPAL GOVT.PRE-UNIVERSITY
                       COLLEGE &ANR.
                                    v.
                     MR. JAMBU KUMAR MUTHA
B                  (CivilAppeal No.10418of2014)
                         NOVEMBER 20, 2014
             [T. S. THAKUR AND R. BANUMATHI, JJ.]
           Suit - For declaration of title over suit property, removal
c   of unauthorized construction raised over the same and
    permanent injunction restraining appellants-defendants from
    interfering with plaintiff's possession- Defendant's case was
    that suit property belonged to the State Government and that
    the same had been used for construction of a Government
D .school building - Proposal by plaintiff-respondent no. 1 to
    part with a portion of suit property by way of settlement in
    favour of the State Government leaving the remainder of the
    property to the plaintiff - State Go.vernment rejected the
    proposal- Trial Court decreed the suit-Appeal by defendant-
E occupant - State Government or college did not challenge
    the decree but moved application seeking transposition as
    appellants in the appeals- Prayer declined by High Court-
    Appellant-college filed an application seeking condonation
  · of delay in filing appeals - High Court dismissed the
F application as it found the explanation unacceptable but also
    considered the State Government's refusal to accept the offer
    made by plaintiff-respondent no. 1 to be inexplicable and
    deplorable - Held: High Court while• dismissing the
    application for condonation of delay made by the State
G dismissed even the appeal preferred by the appellants-
    occupant after obtaining leave of the court- While doing so
    High Court did not go into merits of the cont(oversy and simply
    declined to interfere with the impugned judgment- Delay in
    filing State appeal is condoned and matter remitted to the
H · High Court for consideration afresh.
                               . 1390
 THE PRINCIPAL GOVT.PRE-UNIVERSITY COLLEGE v.                 1391
           MR. JAMBU KUMAR MUTHA

     Allowing the appeals and remitting the matters to A
the High Court, the Court
     HELD : The High Court was not correct in
dismissing the appeal 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 B
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 C
judgment and decree as was challenged in the appeal
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 D
doubt true that the delay in filing of the State appeal
was considerable but given the circumstances in
which the delay had occurred, delay is condoned.
[Paras 9 and 10][1395-C; 1395-E-H; 1396-A]
                                                              E
    CIVIL APPELLATE JURISDICTION: Civil Appeal No.
10418of2014.
     From the Judgment and Order dated 13. 02.2012 of the
High Court of Karnataka at Bangalore in Regular FirstAppeal
No. 296 of 2011.                                              F
                           With
     Civil Appeal No. 10419 of 2014.
     V. N. Raghupathy, S. N. Bhat, Advs.fortheAppellants.
     Basava Prabhu S. Patil, Sr. Adv., B. Subrahmanya G
Prasad, Anirudh Sanganeria, Advs. for the Respondent.



                                                              H
1392       SUPREME COURT REPORTS                   [2014] 13 S.C.R.


 A         The Judgment of the Court was delivered by
           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
 B whereby Regular First Appeals No.806 of 2000 and 296 of
   2011 filed by the appellants have been dismissed.
          3. In OS No.125of1996 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
 C and permanent injunction restraining defendants in the suit from
   interfering with the plaintiffs 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
 D 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
 E 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
 F subsequently upgraded as a pre-univers·ity 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
 G 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 i~terfering with the possession of the plaintiff over
 H
 THE PRINCIPAL GOVT.PRE-UNIVERSITY COLLEGE v.                    1393
    MR. JAMBU KUMAR MUTHA[T. S. THAKUR, J.]

Scheduie 'Pl property which was held to be in ownership and A
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 8
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 C
suffered by them. I.A. No.2of2008 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 D
RFANo.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. !twas thereafter that defendants-appellants in SLP (C) E
No.19634 of 2012 filed RFANo.296 of 2011 before the High
Court of Karnataka at Bangalore in which they filed an,
application seeking condonation of i.ntervening delay in the
filing of the appeals. That application has been d.ismissed by
the High Court in terms of the order impugned in these appeals. F
      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 G
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
                                                                  H
1394      SUPREME COURT REPORTS                    [2014] 13 S.C.R.

 A        and decree, to hand over the disputed suit property
          described in Schedule-a 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
 B        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,
 c        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
 o        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
 E        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
 F        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 '. 2sk of
 G        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-
 H respondent No.1 to part with Schedule "B" property by way of
  THE PRINCIPAL GOVT.PRE-UNIVERSITY COLLEGE v.                1395
     MR. JAMBU KUMAR MUTHA[T. S. THAKUR,.J.]

a settlement leaving the remainder of the property to the . A
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 forthe appellants,
argued thatthe High Court was not justified adopting a coloured B
approach to the prayer for condo nation. 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 C
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 D
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 80612000 would not merit consideration and E
     accordingly rejected."
      10. We are, in the peculiar facts and circumstances of
the case, are of the opi_nion thatthe 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 F
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 G .
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 H
1396          SUPREME COURT REPORTS                   [2014] 13 S.C.R.


 A 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
 B 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.

       Devika Gujral    Appeals allowed and. matters remitted to High Court.