Madhya Pradesh High Court
Smt Prem Bai vs Smt Ram Bai @ Phula on 23 September, 2022
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 23rd OF SEPTEMBER, 2022
MISC. PETITION No. 4377 of 2019
BETWEEN:-
SMT PREM BAI W/O MOOLCHANDRA YADAV,
AGED ABOUT 50 YEARS, OCCUPATION:
HOUSEWIFE VILL GATHEVARA (MADHYA
PRADESH)
.....PETITIONER
(BY MRS. TULIKA GULATEE-ADVOCATE )
AND
1. SMT RAM BAI @ PHULA D/O LT HIRALAL
Y A D A V VILL. GATHEWARA PRESENTLY
RESIDING AT BELATAAL TAH .KULPAHAD
(UTTAR PRADESH)
2. SMT.TULSA @ RAMBAI W/O JANKI PRASAD
Y A D A V VILLAGE PALOTHA TEHSIL
CHHATARPUR (MADHYA PRADESH)
3. TARUN NAMDEO S/O SANTOSH NAMDEO
WARD NO. 29 CHHATARPUR (MADHYA
PRADESH)
4. COLLECTOR THE STATE OF MADHYA PRADESH
CHHATERPUR (MADHYA PRADESH)
.....RESPONDENTS
Th is petition coming on for hearing this day, th e court passed the
following:
ORDER
This Miscellaneous petition is pending since the year 2019 and despite issuance of notice to the respondents on correct addresses, they are not served. As the short and legal point is involved, therefore, matter is taken up for hearing Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 9/27/2022 3:09:10 PM 2 even in absence of respondents.
2. This petition has been preferred by the petitioner challenging the order dated 16.05.2019 (Annexure P/7) passed by Additional Commissioner, Sagar Division, Sagar reversing the order dated 28.10.2017 (Annexure P/4) passed by S.D.O (Revenue), Chhatarpur in appeal filed by respondent 1 Smt. Ram Bai whereby S.D.O. dismissed the application under Section 5 of the Limitation Act and consequently, dismissed the appeal also, resultantly the order dated 03.08.2012 was confirmed.
3. Learned counsel for the petitioner submits that on the basis of sale deed, order of mutation was passed by Tehsildar in favour of the petitioner, against which time barred appeal was filed by respondent 1 Smt. Ram Bai, which was dismissed by S.D.O. vide order dated 28.10.2017 on the ground of limitation, therefore, in the appeal filed by respondent 1 Smt. Ram Bai, Additional Commissioner, Sagar Division, Sagar was not having any jurisdiction to decide the entire matter on merits and the Additional Commissioner ought to have considered the question of limitation first and if delay was condonable, then it should have remanded the matter to the S.D.O. for decision of the pending appeal on merits. Learned counsel for the appellant further submits that even without condoning the delay, learned Additional Commissioner has set aside both the orders of SDO and Tehsildar on merits, as such the order passed by Additional Commissioner is completely without jurisdiction.
4. The argument advanced on behalf of the learned counsel for the petitioner appears to be correct because as per the settled law unless the delay is condoned by the Additional Commissioner or SDO, there is no appeal in the eyes of law. In the case of Chhitu Vs. Mathuralal and Ors AIR 1981 MP 13 (Para 10) this Court has taken the same view. Here in the present case, Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 9/27/2022 3:09:10 PM 3 learned Additional Commissioner has not condoned the delay and passed the order on merits. In view of the aforesaid discussion, it is clear that the Additional Commissioner has committed legal error in deciding the appeal on merits even without condoning the delay and even without remanding the matter to the S.D.O.
5. In view of the aforesaid, the order passed by Additional Commissioner is set aside and the matter is remanded to the Additional Commissioner for decision of Case No.505/A-6/2017-18 afresh.
6 . With the aforesaid observation, this petition is allowed and disposed of.
(DWARKA DHISH BANSAL) JUDGE sh Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 9/27/2022 3:09:10 PM