Madhya Pradesh High Court
Shukhlal vs Vishal Sikarwar on 22 June, 2023
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA
PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 22 nd OF JUNE, 2023
MISC. PETITION No. 371 of 2018
BETWEEN:-
SHUKHLAL S/O SHRI TULAI, AGED-57 YEARS,
OCCUPATION: AGRICULTURIST, R/O VILLAGE
VISKAWALI, TEHSIL GANJ BASODA, DISTRICT
VIDISHA (MADHYA PRADESH)
.....PETITIONER
(BY SHRI GAURAV MISHRA- ADVOCATE )
AND
VISHAL SIKARWAR S/O SHRI HARI SINGH
SIKARWAR, AGED-35 YEARS, R/O WARD NO. 5
GANJ BASODA, DISTRICT VIDISHA (MADHYA
PRADESH)
.....RESPONDENTS
(NONE FOR THE RESPONDENTS)
This petition coming on for orders this day, the court passed the
following:
ORDER
The present petition under Article 227 of the Constitution of India has been directed against the orders dated 07.12.2017 and 29.11.2017, whereby the learned SDO had allowed the oral prayer of the appellant/respondent and had condoned the delay of about two years without there being any application for its condonation and when the order was assailed before the Board of Revenue in revision with a non-speaking Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 26-Jun-23 10:29:10 AM 2 and non-reasoned order, the revision preferred by the petitioner was dismissed.
Learned counsel for the petitioner had submitted that the name of the present petitioner got mutated in the revenue records in respect of land bearing survey no.66 admeasuring 0.188 hectare, survey no.67 admeasuring 2.058 hectare and survey no.68 admeasuring 0.105 hectares situated at village Viskawali Tehsil Ganj Basoda and on an area 0.677 hectares out of land survey no.76/1 admeasuring 2.707 situated at village Kharyayi, Tehsil Ganj Basoda. Against the said order some unknown person i.e. respondent preferred an appeal before the SDO which was numbered as 111/Appeal/2016-17 with a delay of approximately two years.
Along with said appeal no application under Section 5 of the Limitation Act was preferred. The learned SDO upon the objection taken by the present petitioner rejected those objections vide order dated 29.11.2017 and condoned the delay in preferring the appeal on oral request made by the present respondent/appeallant therein.
It has further been argued that against the said order the present petitioner has preferred a revision under Section 50 of the MPLRC before the learned Board of Revenue which was decided vide order 07.12.2017 and without giving any reasoning, the revision was dismissed. Being aggrieved the petitioner had filed the present petition.
On illegality of the aspect with regard to non-filing of application under Section 5 of the Limitation Act, counsel for the petitioner had referred Section 47 and Section 53 of the MPLRC. While referring those Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 26-Jun-23 10:29:10 AM 3 Sections it was argued that Section 47 deals with the limitations within which appeals against the order of the lower revenue authorities can be made and Section 53 deals with the applicability of Limitation Act, if there is delay in preferring those appeals. Further he had placed reliance in the matter of Ramesh Chandra Sharma vs. Udham Singh Kamal and Ors. reported in (1999) AIR (SC) 3837 and in the matter of Smt. Noorjan and Ors. vs. The State of Karnataka and Ors. passed in W.P. No.14070/2009 on 13.09.2013, wherein the Hon'ble Courts have held that without there being an application, the delay cannot be condoned.
None for the respondents even after service of notices. Heard the counsels for the parties and perused the record. The only controversy involved in the matter raised by the petitioner is whether delay in preferring an appeal under Section 44 of MPLRC before SDO can be condoned by him without there being any application and whether SDO was justified in condoning the delay of approx two years on oral request of the present respondent/appellant.
In the above context the provision of Section 5 of the Limitation Act is required to be seen. For ready reference Section 5 of the Limitation Act is reproduced herein below:
Section 5. Any appeal or any application, other than an application under any of the provisions of Order XXI of the CPC, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 26-Jun-23 10:29:10 AM 4 such period.
From bare reading of the provisions of Section 5 of the Limitation Act, 1963 it is reflected that it does not speak of any application, the Section unable the Court to admit an application or appeal of the applicant/appellant as the case may be, satisfies the Court that he has sufficient cause for not making the application or preferring the appeal, within prescribed time. Although it is the general practice to make a formal application under Section 5 of the Limitation Act, in order to unable the Court or tribunal to weigh the sufficiency of the cause for the inability of the appellant/applicant to approach Court/tribunal within time prescribed by Limitation Act, there is no bar to exercise by the Courts of its discretion to condone the delay, in the of absence of formal application.
A plain reading of Section 5 of the Limitation Act makes it ample clear that it is not mandatory to file application in writing before relief can be granted under such Section, and such an application being mandatory, Section 5 of the Limitation Act would have expressly provided so. Section 5, thus, would have read as the Court might condone the delay beyond the time prescribed by limitation for filing an application or appeal, if on consideration of the application for condonation of delay, the Court is satisfied that the appellant/applicant had sufficient cause for not preferring the appeal or making the application within such period. Apart from that even a proviso or explanation would have been added to Section 5 requiring the appellant or applicant as the case may be to make an application for condonation of delay.
However, the court can always insist upon the party seeking Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 26-Jun-23 10:29:10 AM 5 condonation to file application or at least submit an affidavit showing cause for the delay to be filed, and no applicant or appellant can claim condonation of delay under Section 5 of the Limitation Act as a matter of right, without making an application.
The condition president for preferring or filing an appeal, is the existence of sufficient cause and whether the explanation furnished for the delay would constitute sufficient cause or not depend upon the facts of each case. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bonafide can be imputed to the State formally for accepting or rejecting the application furnished by the applicant/appellant for delay in taking steps.
It is true that valuable right may accrue to the party by the law of limitation which should not lightly be defeated by condoning delay in a routine manner and at the same time when stakes are high, the explanation furnished should not be rejected by taking a pedantic and hyper technical view of the irreparable loss or injury to the party against whom the lis terminates. The Court's, therefore, are required to strike balance between legitimate rights and interest of the respective parties.
So far as the judgment cited by the learned counsel for the petitioner are concerned, they are based on some different fact and are not applicable in the matter.
In view of the aforesaid discussion with regard to the provisions of Section 5 of the Limitation Act if the impugned order dated 29.11.2017 Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 26-Jun-23 10:29:10 AM 6 passed by SDO is seen, it would be evident that the learned SDO has not mentioned in its order while condoning the delay as to what sufficient cause was shown by the present respondent/appellant, which instigated the learned SDO to condone the delay on oral request being made. From the impugned order it is also reflected that learned SDO had not discussed the sufficient cause shown by the present respondent/appellant which laid him to accept the explanation furnished for condoning the delay. The approach of the learned SDO appears to be very casual and he had lost sight of the fact that a valuable right has accrued in favour of the present petitioner by the law of limitation which should not have been defeated so lightly by condoning the delay in routine manner. This Court thus finds it appropriate to set aside the impugned orders dated 07.12.2017 and 29.11.2017 and relegate the matter back to the SDO to decide on the point of limitation afresh and take fresh decision after appreciating the explanation furnished by the appellant/applicant therein, whether constitutes a sufficient cause or not.
With the aforesaid, directions the petition stands allowed and disposed of.
(MILIND RAMESH PHADKE) JUDGE Chandni Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 26-Jun-23 10:29:10 AM