Allahabad High Court
Shambhu Sharan Chaubey And Others vs State Of U.P. And Another on 25 July, 2012
Author: Ran Vijai Singh
Bench: Ran Vijai Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 5 Case :- WRIT - C No. - 35569 of 2012 Petitioner :- Shambhu Sharan Chaubey And Others Respondent :- State Of U.P. And Another Petitioner Counsel :- R.C. Singh Respondent Counsel :- C.S.C. Hon'ble Ran Vijai Singh,J.
Heard Sri R.C. Singh, learned counsel for the petitioners and Sri Sanjay Goswami, learned Additional Chief Standing Counsel for the respondents.
Through this writ petition, the petitioners have prayed for issuing writ of certiorari quashing the impugned orders dated 3.4.2012, passed by respondent no. 2 in appeals nos. 406K of 2012, 407K of 2012 and 408K of 2012 (annexure nos. 9, 11 and 13 to the writ petition), by which highly time barred appeals have been admitted, without condoning the delay.
Sri Singh contends that in view of the provisions contained under section 38 of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as, 'the Act'), for deciding the appeal, the procedure contained in the Code of Civil Procedure, 1908 (in short, 'CPC') shall be applicable and once the provisions of CPC are applicable, the appeal could not be admitted without condoning the delay in filing the appeal. In his submissions, through the appeals, the orders of the year 1996, passed by the prescribed authority /Chief Revenue Officer were challenged. The appeals were filed in the year 2012.
Sri Goswami submitted that only legal questions are involved in this case, therefore, the writ petition may be decided on its own merit in view of the grounds taken in the appeals without inviting the counter affidavit. Therefore, with the consent of learned counsel for the parties, the writ petition is taken up for final disposal.
For appreciating the controversy, it would be necessary for me to look into the provisions (sections 38 and 42 of the Act and the relevant provisions of Order 41, Rule 3A sub-rules (1), (2) and (3)), contained in the CPC, for adjudication of the appeals. Sections 38 and 42 of the Act and Rule 3A sub-rules (1), (2) and (3) of Order 41 of CPC are reproduced hereinunder:
"38. Powers of the appellate Court and the procedure to be followed by it: (1) In hearing and deciding an appeal under this Act, the appellate Court shall have all the powers and the privileges of a Civil Court and follow the procedure for the hearing and disposal of appeals laid down in the Code of Civil Procedure, 1908.
(2) Where, under the provisions of this Act, an appeal has to be heard by the Commissioner, he may either hear the appeal himself or transfer it for hearing to any Additional Commission subordinate to him.
42. Application of the Limitation Act, 1963: The provisions of Sections 4, 5 and 12 of the Limitation Act, 1963 shall be applicable to all proceedings including proceedings in appeals, applications and objections under this Act.
Order 41, Rule 3A of the CPC 3A. Application for condonation of delay: (1) When an appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period.
(2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under rule 11 or rule 13, as the case may be.
(3) Where an application has been made under sub-rule (1), the Court shall not make an order for thte stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under rule 11, decide to hear the appeal."
From the bare reading of section 38 of the Act, it is clear that for deciding the appeal, the procedure contained in the CPC for deciding the appeal would be applicable and in view of section 42 of the Act, the provisions contained under section 5 of the Limitation Act would also be attracted in case the appeal has been filed after expiry of the period of limitation.
According to section 13 of the Act, which provides provisions of appeal, the limitation for filing the appeal is 30 days from the date of order. Here in this case, as has been noticed, the orders impugned in the appeals were passed in the year 1996 and the appeals were filed in the year 2012. Since the limitation for filing the appeal is 30 days from the date of order, therefore, certainly the appeals were highly barred by time by more than 15 years. Therefore, in view of Order 41, Rule 3A(1) of the CPC, it was to be filed alongwith an application under section 5 of the Limitation Act with supporting affidavit, stating therein the facts on which the appellants rely to satisfy the court, that they had sufficient cause for not preferring the appeals within time. Sub rule (2) of Order 41, Rule 3A of CPC provides that in case there is no reason to reject the application without issuing notice, the notice is to be issued to the other side before condoning the delay. From the bare reading of the language used in Order 41 Rule 3A sub-rules (1), (2) and (3), it would transpire that the same is mandatory in nature and not directory, as consequences not to follow has been clothed in the words used therein. It is well settled that when the Statute provides to do a thing in a particular manner and the consequences to not follow the procedure (manner) is given in the Statute, in that eventuality, the provisions contained in the Statute are held to be mandatory. Here in the particular case, the consequences have been given not to follow the procedure contained in Order 41, Rule 3A of the CPC, therefore, the provisions contained in Order 41, Rule 3A of the CPC are mandatory in nature and consequences not to follow would be fatal in admitting the appeal as without condoning the the delay, the appeal could not be admitted in view of sub rule (3) of Order 41, Rule 3A of CPC. Reference may be given in AIR (1935) PC 85 Maqbul Ahmad and Others Vs. Omkar Pratap Narain Singh and others, 2006(1) SCC 164 HUDA Vs. B.K. Sood, JT 2005 (9) SC 503 Haryana Urban Development Authority Vs. B.K. Sood and 2009 (5) SCC 121 (paras 11 and 12) State Bank of India Vs. B.S. Agriculture Industries (I).
The controversy in hand may be examined from the provisions contained in sub-section (1) of section 3 of the Limitation Act, perusal of which, talks about bar of limitation, which provides that subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. For this purpose, if any appeal / revision is preferred beyond the period of limitation, section 5 of the Limitation Act empowers the court to extend the period of limitation on its satisfaction, provided the application contain sufficient ground for not approaching the court within time.
Taking note of this, the apex Court in the case of Noharlal Verma Vs. District Cooperative Central Bank Ltd. Jagdalpur, 2008 14 SCC 445 (in paragraphs 32 and 33 of the aforesaid judgment) has observed as under:
" 32. Now, limitation goes to the root of the matter. If a suit, appeal or application is barred by limitation a court or an adjudicating authority has no jurisdiction, power or authority to entertain such suit, appeal or application and to decide it on merits.
33. Sub Section (1) of Section 3 of the Limitation Act, 1963 reads as under:
" 3. Bar of Limitation.- (1) Subject to the provisions contained in Sections 4 to 24 (inclusive) every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not be set up as a defence."
Bare reading of the aforesaid provision leaves no room for doubt that if a suit is instituted, appeal is preferred or application is made after the prescribed period, it has to be dismissed even though no such plea has been raised or defence has been set up. In other words, even in the absence of such plea by the defendant, respondent or opponent, the court or authority must dismiss such suit, appeal or application, if it is satisfied that the suit, appeal or application is barred by limitation."
In the case of V.M. Salgaocar and bros. Vs. Board of Trustees of Port of Mormugao and another, 2005, 4 SCC 613 (in paragraph 20 of the judgment) the apex Court has observed as under:
" The mandate of Section 3 of the Limitation Act is that it is the duty of the court to dismiss any suit instituted after the prescribed period of limitation irrespective of the fact that limitation has not been set up as a defence. If a suit is ex facie barred by the law of limitation, a court has no choice but to dismiss the same even if the defendant intentionally has not raised the plea of limitation."
In the case of Sneh Gupta Vs. Devi Sarup and others, (2009)6 SCC 194 the apex Court (paragraph 70 of the said judgment) has observed that in absence of any application for condonation of delay, the court has no jurisdiction in terms of S. 3, Limitation Act, 1963 to entertain the application filed for setting aside of decree after expiry of period of limitation.
Further, in the case of Ragho Singh Vs. Mohan Singh, 2001 (9) SCC 717, the apex Court (in paragraph 6) has held as under:
" We have heard learned counsel for the parties. Since it is not disputed that the appeal filed before the Additional Collector was beyond time by 10 days and an application under Section 5 of the Limitation Act was not filed for condonation of delay, there was no jurisdiction in the Additional Collector to allow that appeal. The appeal was liable to be dismissed on the ground of limitation. The Board of Revenue before which the question of limitation was agitated was of the view that though an application for condonation of delay was not filed, the delay shall be deemed to have been condoned. This is patently erroneous. In this situation, the High Court was right in setting aside the judgment of the Additional Collector as also of the Board of Revenue. We find no infirmity in the impugned judgment. The appeal is dismissed. No costs."
From the bare reading of the aforesaid judgments it transpires that if a revision or appeal is filed beyond the period of limitation as prescribed under the law then that has to be accompanied with an application under Section 5 of Limitation Act supported with an affidavit disclosing the reason for not approaching the court well within the time, and in absence of such application or in absence of any notice to the other side, the court can only dismiss the appeal/revision as barred by time and in no case it can condone the delay or admit/allow the Appeal/Revision.
In view of the submissions made by the learned counsel for the petitioners, admittedly, the appeals were highly barred by time and the appellate court, without condoning the delay has admitted the appeals. Therefore, in view of the provisions contained under section 3 of the Limitation Act and sub-rules (1) and (2) of Rule 3A of Order 41 of CPC, the appeals ought to have been rejected as barred by time and, in fact, there was no appeal unless the delay was condoned, as has been held by the apex Court.
In view of the legal position, as discussed above, the impugned order dated 3.4.2012, passed by Commissioner, Gorakhpur Division, District Gorakhpur (respondent no. 2) cannot be sustained.
The writ petition succeeds and is allowed. The impugned orders dated 3.4.2012, passed by respondent no. 2 in Appeal Nos. 406K of 2012, 407K of 2012 and 408K of 2012, are hereby quashed.
The Commissioner, Gorakhpur Division, Gorakhpur (respondent no. 2) is directed to, first of all, decide the application for condonation of delay filed in Appeal Nos. 406K of 2012, 407K of 2012 and 408K of 2012 (Annexure nos. 9, 11 and 13 to the writ petition) and if delay is condoned, thereafter, may proceed to hear the appeals in accordance with law.
Order Date :- 25.7.2012 Amit Mishra