The Single Bench of the Bombay High Court consisting of Justice Sandeep K. Shinde opined that the expression “sufficient cause” used in Rule-2 is to be read and understood in the context of the circumstances, in which a breach has been committed. Therefore, if a party commits any wilful default of the Undertaking, he cannot be permitted to take advantage of his own wrong or else it would frustrate the object of the O39R11 of CPC.
Facts and Procedural History
Appellant was a defendant in a Special Civil Suit instituted by the respondent/plaintiff, seeking decree of specific performance of a contract qua land admeasuring 1H 83R (‘Suit Land’). Thereafter, the appellant fled First Appeal before this Court. It was admitted. Pending appeal, respondent/plaintiff, moved Civil Application seeking order of injunction to restrain the appellant, from creating third party rights in the suit property. This Court passed the following order:
“It is not necessary to grant any relief in this application.”
Later, due to enhancement in the pecuniary jurisdiction of the District Court, the First Appeal was transferred and re-numbered as Regular Civil Appeal in District Court at Niphad. Inspite of Undertaking to the Court, appellant frstly got mutated his wife’s name as a co-owner in the revenue records of the suit property. Whereafter, in breach of Undertaking, appellant permitted Dhanlaxmi Urban Co-operative Credit Society to create a charge on the suit property against the loan of Rs.50,000/- availed by him without permission of the Court. Thus, taking note of breach of Undertaking, respondent-plaintiff, moved an application under O39R11(1) of the CPC, seeking dismissal of Regular Civil Appeal. The learned District Judge, Niphad allowed the application and dismissed the Regular Civil Appeal. The Order was challenged by the appellant-plaintiff, simultaneously in two proceeding. Following order was passed:
“No interim relief. The appellant is at liberty to adopt procedure as contemplated under Sub-Rule 11 of Order 39 of Code of Civil Procedure.”
Appellant was granted liberty to adopt proceedings contemplated under O39R11(2) of the CPC. Pursuant to the said liberty, appellant moved a Miscellaneous Civil Application O39R11(2) of the CPC, seeking restoration of Regular Civil Appeal Learned District Judge rejected the Miscellaneous Civil Application, whereby he declined to restore Regular Civil Appeal. Hence, aggrieved plaintiff, has filed this Appeal from Order.
Contentions Made
Appellant: O39R11(2) of the CPC empowers the Court to restore the suit or proceedings, if the party that has been responsible for contravention of breach of Undertaking, makes amend for the contravention or breach, to the satisfaction of the Court. The appellant has remedied the breach and set right the position and therefore, there was no impediment, to restore the Appeal. In this manner, mistake has been set right and at the present time, appellant is sole owner of the suit property. Therefore, character of the suit property has been restored, as that was, prior to alteration of records of right and in this way suit property has been preserved. Mere revenue entry in the name of his wife as a co-owner, neither creates nor extinguishes his title to the suit property and therefore appellant has not created third party rights. The loan amount of Dhanalaxmi Urban Co-operative Credit Society has been repaid and the charge on the suit property has been deleted.
Respondent: The acts and/or omissions of the appellant were wilful and in complete disregard to order of and/or Undertaking to the Court. besides, creating third party rights, the appellant, through his son and daughter, sought their impleadment as party respondents in Regular Civil Appeal. All possible efforts were made by the appellant to frustrate the Decree by one way or another and has not approached the Court with clean hands. As such the order impugned cannot be faulted with and no interference is called for in the said order.
Observations of the Court
The Bench observed that:
“Facts, if taken together, reinforce the conclusion that, appellant’s acts/omissions, were not bonafide but wilful, deliberate and the plain purpose was to frustrate the Decree.”
“In essence, the expression “sufficient cause” used in Rule-2 is to be read and understood in the context of the circumstances, in which a breach has been committed. Therefore, if a party commits wilful default of the Undertaking, he cannot be permitted to take advantage of his own wrong or else it would frustrate the object of the O39R11 of CPC.”
“Appellant justified his acts by ignoring and contending that, contents of Undertaking were not true, and his Advocate did not give Undertaking as recorded in order. If that be so, now the appellant cannot argue that entry in record of rights does not confer title on person whose name has been recorded and further appellant has set-right the mistake.”
“The appellant mended his way to remedy the breach of Undertaking, as a last resort, when this Court declined to stay the execution of Decree and refused to restore the Civil Appeal. Therefore, acts/omissions and conduct of the appellant, was, ‘relevant fact’, u/s 8 of the Evidence Act, as it has influenced ‘fact-in-issue’ i.e., whether appellant has shown, sufficient cause for restoring the Appeal, that was dismissed for committing breach of Undertaking.”
Judgment
It was held that the breach was “wilful” and not committed in compelling circumstances. Since the facts of the case did not show ‘sufficient cause’ to restore the Appeal, the order impugned required no interference. In the result, Appeal from Order was dismissed.
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