THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Appellate Jurisdiction)
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SINGLE BENCH: THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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I.A. No. 03 of 2022
(Arising out of RFA No. 03 of 2014)
Shri Bharat Prasad Gupta,
S/o late Ramlakhan Prasad
R/o Majhitar, P.S. Jorethang,
South Sikkim.
..... Applicant
Versus
Md Rajjak,
S/o Md. Itris,
R/o Mazigaon, Jorethang,
South Sikkim. .....Respondent
Application under Section 5 of the Limitation Act, 1963.
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Appearance:
Mr. B. Sharma, Senior Advocate with Mr. B.N. Sharma,
Mr. Safal Sharma and Ms. Puja Kumari Singh, Advocates
for the Appellant.
Mr. A. Moulik, Senior Advocate with Mr. Ranjit Prasad,
Advocate for the Respondent.
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Date of hearing : 22.08.2023
Date of order : 22.08.2023
O R D E R (ORAL)
Bhaskar Raj Pradhan, J.
1. This is an application preferred under Section 5
of the Limitation Act, 1963 for condonation of delay.
According to paragraph 2 of the application, there is a
delay of 7 years and 11 months. However, the prayer seeks
condonation of delay of 4 years and 11 months only. 2
I.A. No. 03 of 2022 (Arising out of RFA No. 03 of 2014)
Shri Bharat Prasad Gupta vs. Md. Rajjak
2. Briefly, the applicant was the landlord of the
tenanted premises - a shop, and the respondent was the
tenant. During the pendency of Regular First Appeal No. 3
of 2014 before this Court, against the judgment dated
30.11.2013 passed by the learned District Judge, South
Sikkim at Namchi in Eviction Suit No.01/2009 filed by the
applicant against the respondent, a deed of agreement
dated 26.9.2014 (deed of agreement) was entered upon. In
terms of the deed of agreement, this Court disposed of the
appeal making the deed of agreement part of the decree in
appeal dated 27.9.2014 (decree in appeal).
3. By preferring the connected application under
Order XXIII Rule 3A and section 151 of the Code of Civil
Procedure, 1908 (CPC), the applicant seeks to set aside the
deed of agreement and the decree in appeal.
4. The application under Order XXIII Rule 3A read
with section 151 CPC was filed after considerable delay of
almost 8 years. The application for condonation of delay is
taken up for consideration.
5. The respondent has filed a detailed reply to the
application for condonation of delay denying each of the
grounds taken therein. The respondent asserts that the
parties had filed a joint petition under Order XXIII Rule 3 3 I.A. No. 03 of 2022 (Arising out of RFA No. 03 of 2014)
Shri Bharat Prasad Gupta vs. Md. Rajjak
read with section 151 CPC along with a copy of the deed of
agreement. In the joint petition, the parties asserted that
they had come to an amicable settlement of their
differences and disputes and entered upon the deed of
agreement. They had jointly prayed that the appeal pending
before this Court be disposed of as compromised and
decree be passed accordingly in terms thereof. Accordingly,
this Court passed the decree in appeal.
6. The application under Order XXIII Rule 3A of the
CPC was preferred on 12.09.2022 after eight years of the
passing of the decree in appeal on 27.09.2014.
7. The application for condonation of delay is
preferred on five grounds.
8. It is firstly, explained that the deed of agreement
was entered upon in a rush in the chamber of the
applicant's counsel but he was not made aware of the
contents thereof. The respondent disputes this assertion
asserting that the deed of agreement was entered
voluntarily. The respondent states that the terms of the
deed of agreement was read and explained to both the
parties in the presence of their respective counsel.
8(i). The decree in appeal reflects that the applicant
was represented by a senior counsel. The deed of 4 I.A. No. 03 of 2022 (Arising out of RFA No. 03 of 2014)
Shri Bharat Prasad Gupta vs. Md. Rajjak
agreement records that the applicant was a signatory
thereof. On the face of it, therefore, the ground is devoid of
merit as the applicant did not think it fit to complain about
it at the relevant time until he sought legal opinion in
August 2022. The ground is, therefore, clearly an
afterthought. The applicant provides no reason as to why
he did not make any effort to understand the contents of
the deed of agreement when it was executed or immediately
thereafter. Besides the assertion, the petitioner has
provided no other material to ascertain the correctness of
the averment.
9. Secondly, it is stated that on 26.9.2014 the
applicant was suffering from different ailments and so he
was not in a peaceful state of mind when he executed the
deed of agreement. The medical documents filed by the
applicant do not provide any adequate reason that he was
not in a peaceful state of mind when executing the deed of
agreement. Besides the statement made in the application
for condonation of delay after eight years of its execution
there is no material to substantiate this assertion. The
medical documents do not reflect any kind of disability of
the applicant to understand the terms of the deed of the
agreement; the decree in appeal; or the implications thereof
at the time of its execution.
5
I.A. No. 03 of 2022 (Arising out of RFA No. 03 of 2014)
Shri Bharat Prasad Gupta vs. Md. Rajjak
10. Thirdly, it is submitted that during the 2nd week
of August, 2022 when the applicant desired to partition his
self acquired properties, he applied and obtained certified
copies of the case records. It was found that the recipients
of the respective shares in the property were not agreeable
to receive the portion involved in the deed of agreement.
Thereafter, he was advised that the deed of agreement was
a void agreement signed under a mistake. This, the
applicant explains by stating that his children are
coparceners under the Mitaksara School of Hindu Law
hailing from Uttar Pradesh, and as such, the execution of
the deed of agreement is in direct conflict with the rights of
other coparceners of his family. It is stated that the
applicant learnt that the deed of agreement suffered from
legal impediments only on 10.08.2022 when he visited the
office of the learned counsel with the desire to partition the
properties.
10(i) The applicant, however, could not explain how
this would be a ground to set aside the decree in appeal
passed by this Court pursuant to a deed of agreement.
Although, it is quite obvious that the idea of seeking for
setting aside of the deed of agreement and the decree in
appeal occurred to the applicant when his children refused
to accept the property involved in the deed of agreement 6 I.A. No. 03 of 2022 (Arising out of RFA No. 03 of 2014)
Shri Bharat Prasad Gupta vs. Md. Rajjak
and thereafter sought legal advice in the year 2022. Merely
because the children of the applicant were not agreeable to
receive the property involved in the deed of agreement is no
ground for setting it aside. When consent to an agreement
is caused by coercion, fraud or misrepresentation, the
agreement is a contract voidable at the option of the part
whose consent was so caused. The applicant has not
asserted that the agreement was caused by coercion, fraud
or misrepresentation. Where both the parties to an
agreement are under a mistake as to a matter of fact
essential to the agreement, the agreement is void. The
applicant has also not asserted that both the parties were
under a mistake as to a matter of fact essential to the
agreement. A contract is not voidable because it was
caused by a mistake as to any law in force in India. A
contract is not voidable merely because it was caused by
any of the parties to it being under a mistake as to a matter
of fact. Thus, it is clear that the ground that the deed of
agreement was void is without any merits.
11. Fourthly, it is submitted that the applicant was
informed by his counsel on 10.8.2022 that the deed of
agreement is against the intent and spirit of notification
No.6326-600 H&W-B dated 14.04.1949. There is no
explanation whatsoever as to why he sought opinion of his 7 I.A. No. 03 of 2022 (Arising out of RFA No. 03 of 2014)
Shri Bharat Prasad Gupta vs. Md. Rajjak
counsel regarding the contents of the deed of agreement
and the decree in appeal passed in 2014 in the year 2022
only. The 1949 notification is the applicable rules framed to
regulate letting and sub-letting of premises, controlling
rents thereof and unreasonable eviction of tenants. Under
clause 2 thereof, the landlord may seek eviction of the
tenant when whole or part of the premises is required for
their personal occupation or for thorough overhauling the
premises or on failure of the tenants to pay rent for four
months. If any of these three grounds are available, the
landlord may seek eviction of the tenant if he so desires.
The deed of agreement narrates that during the course of
hearing of civil first appeal bearing RFA No. 03 of 2014, the
applicant as the landlord expressed his desire to
reconstruct the existing suit building by demolishing it and
requested the respondent - the tenant, to shift his shop
from the suit building to a temporary shed on a temporary
basis on payment of monthly rent until the respondent is
relocated to the proposed newly constructed shop premises.
It was thus agreed that the applicant shall cause the other
two occupants to vacate the two shops occupied by them;
after the two occupants vacate the two shops and the
applicant arranges the money for construction of the new
building he was required to issue a written a one month's 8 I.A. No. 03 of 2022 (Arising out of RFA No. 03 of 2014)
Shri Bharat Prasad Gupta vs. Md. Rajjak
notice in advance to the respondent to shift his shop from
the suit building to the temporary shed till the respondent
tenant is relocated in the shop in the new constructed
building of the same size. It was also agreed that if the
applicant cannot or does not construct the shop premises
of the new building to provide the shop premises to the
respondent even within nine months then the respondent
shall be free to reoccupy the shop premises in the earlier
location by making a temporary construction to run his
temporary shop and the cost of the construction of the
temporary shop was liable to be adjusted from the rent to
be paid to the applicant as per rate fixed.
12. The terms of the deed of agreement does not
violate any of the provisions of the 1949 notification. Under
the 1949 notification, if the respondent as a tenant of the
applicant violates any of the three conditions, the applicant
would have the necessary ground to seek his eviction. It is
the landlord's choice to seek eviction or not to seek
eviction.
13. Finally, according to the applicant he was
constantly ill with various ailments including chronic heart
problem from 2011 till date. The documents attached to the
application for condonation of delay are medical 9 I.A. No. 03 of 2022 (Arising out of RFA No. 03 of 2014)
Shri Bharat Prasad Gupta vs. Md. Rajjak
prescriptions and reports of the applicant over a period of
time. These medical documents, as held earlier, do not
reflect that the applicant was suffering from any disability
which disabled him to understand the nature and contents
of the deed of agreement and the decree in appeal. The
medical documents also do not explain the delay for the
period of nearly 8 years and absolutely nothing between
2014 and 2017.
14. A perusal of the decree in appeal reflects that the
applicant who was the appellant was represented by a
learned Senior Counsel. Admittedly, the agreement was
drafted in the chamber of the applicant's counsel and in his
presence. It is also clear that the applicant was fully aware
that he was entering upon a compromise with the
respondents on 26.09.2014 on the terms and conditions
therein.
15. There is no explanation whatsoever for the entire
period between the decree in appeal dated 27.09.2014 till
August, 2022 when the applicant, according to the
application, sought legal advice to partition his properties.
16. The learned Senior Advocate for the applicant
draws the attention of the Court to Article 59 of the
Limitation Act, 1963 and explains that the period of 10 I.A. No. 03 of 2022 (Arising out of RFA No. 03 of 2014)
Shri Bharat Prasad Gupta vs. Md. Rajjak
limitation is 3 years from when the facts entitling the
plaintiff to have the instrument or decree cancelled or set
aside or the contract rescinded first becomes known to
him. It is submitted that since he was informed by his
counsel that the deed of agreement was void only on
10.08.2022 limitation would start from that date.
17. The submission of the learned Senior Counsel is
devoid of merit. An attempt has been made by the applicant
to mould his facts to assert that he became aware of the
true nature and legal consequences of the deed of
agreement only in the year 2022. However, it is apparent
that the entire exercise is an afterthought. It is seen that
the applicant entered into the deed of agreement
voluntarily and he was fully aware of what he was doing.
The deed of agreement which is sought to be cancelled is in
writing and signed by the applicant. This deed of agreement
was later made a part of the decree in appeal. Article 59 is
a general provision and applicable to cancel or set aside an
instrument or decree or for recession of a contract. Time
begins to run for the applicant when the facts entitling the
applicant to have the decree set aside known to him.
Except for asserting that the applicant obtained a legal
opinion in the year 2022, he has not asserted any facts
entitling him to set aside the decree which came to be 11 I.A. No. 03 of 2022 (Arising out of RFA No. 03 of 2014)
Shri Bharat Prasad Gupta vs. Md. Rajjak
known to him then. His failure to seek legal opinion earlier
and obtain it after almost 8 years cannot be a legitimate
ground to give him a cause of action. As the present
proceedings seek the cancellation of the deed of agreement
dated 26.9.2014 and the decree in appeal dated
27.09.2014 which he was fully aware of, the three years
period would expire in the year 2017. The facts entitling the
plaintiff to have the decree set aside was known to him on
the date on which he voluntarily entered upon the deed of
agreement and thereafter when this Court passed the
decree in appeal in terms of the deed of agreement.
18. This Court having given its anxious
consideration to the arguments advanced by the learned
Senior Counsel for the respective parties is of the
considered view that the application for condonation of
delay does not explain the gross delay in approaching this
Court. The application is accordingly dismissed.
Consequently, the application under Order XXIII Rule 3A
read with section 151 CPC is also rejected.
( Bhaskar Raj Pradhan )
Judge
Approved for reporting : Yes
Internet : Yes
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