Allahabad High Court
Lokesh vs State Of U.P. And Another on 2 November, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 52 Case :- WRIT - B No. - 2643 of 2022 Petitioner :- Lokesh Respondent :- State of U.P. and Another Counsel for Petitioner :- Ram Chandra Kushwaha Counsel for Respondent :- C.S.C. Hon'ble Chandra Kumar Rai,J.
1. Heard Sri Ram Chandra Kushwaha, counsel for the petitioner and learned standing counsel for respondent nos. 1 and 2.
2. With the consent of the parties, the present writ petition is being heard and disposed of finally at the admission stage without calling counter affidavit.
3. The brief facts of the case are that plot in dispute was allotted by Land Management Committee in accordance with law vide proposal dated 27.10.1975, the allotment was duly approved by the concerned authorities. During consolidation period, Consolidation Officer vide order dated 24.03.2000 has expunged the long standing entry of petitioner's ancestor in fraudulent manner hence petitioner's father filed appeal which was dismissed as not maintainable vide order dated 14.06.2000. Petitioner's father filed revision which was dismissed in default vide order dated 10.02.2003 and the restoration application alongwith delay condonation application filed on 27.09.2021 was dismissed on the ground of limitation vide impugned order dated 14.09.2022 hence this writ petition.
4. Counsel for the petitioner submits that against the order of Consolidation Officer, the petitioner filed an appeal under Section 11 of U.P. Consolidation of Holdings Act, which was dismissed by the Settlement Officer of Consolidation vide order dated 14.06.2000 as not maintainable although the order of consolidation officer was without jurisdiction. Against the order dated 14.06.2000 passed by the Appellate Court, petitioner's father filed revision under Section 48 of U.P. Consolidation of Holdings Act, which was dismissed for non prosecution vide order dated 10.02.2003. He further submitted that after dismissal of the revision, petitioner's father died in the year, 2018 but petitioner was not aware about the order dismissing the revision for non prosecution. When the petitioner came to know about the order dismissing the revision in default then restoration application supported by application under Section 5 of the Limitation Act was filed on 27.09.2021, the revisional court has dismissed the restoration application on the ground of limitation holding that there is an inordinate delay in filing the restoration application. Counsel for the petitioner further submitted that the order dismissing the restoration application on technical ground is illegal and the matter be remitted back before the revisional court to decide the revision on merits.
5. I have considered the argument advanced by the counsel for the parties and perused the record.
6. There is dispute about the fact that revision filed by the petitioner's father under Section 48 of U.P. Consolidation of Holdings Act, which was dismissing for non prosecution and the restoration application was accompanied by the application under Section 5 of the Limitation Act explaining the delay in filing the restoration application but the revisional court has rejected the application on the ground of limitation.
7. Since the restoration application was filed by the petitioner giving proper reason in filing the restoration application, as such in place of rejecting the restoration application on technical ground and the matter should be decided on merit. The Apex Court in the case reported in AIR 1987 SC 1353 Collector Land Acquisition Anantnag and others Vs. Kantiji and others has held that dismissal of objection/appeal/revision/application on the technical ground is not proper. The paragraph no. 3 of the judgement is as follows:-
"The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaning- ful manner which subserves the ends of justice--that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-
"Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 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 such period."
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is con- doned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a stepmotherly treatment when the 'State' is the applicant praying for condonation of delay. In fact experi- ence shows that on account of an impersonal machinary (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the in-herited bureaucratic methodology imbued with the note-making, file pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even handed justice on merits in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time barred, is therefore. set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides."
8. In another case reported in 1998 RD 607 N. Balakrishnan Vs. N. Krishnamurthy it has been held by Apex Court that delay can be condoned on imposing cost to other side considering the facts and circumstances of the case. The relevant paragraph of the judgement is as follows:-
"A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749]. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss.
In this case explanation for the delay set up by the appellant was found satisfactory to the trial court in the exercise of its discretion and the High Court went wrong in upsetting the finding, more so when the High Court was exercising reversional jurisdiction. Nonetheless, the respondent must be compensated particularly because the appellant has secured a sum of Rs. Fifty thousand from the delinquent advocate through the Consumer Disputes Riderless Forum. We, therefore, allow these appeals and set aside the impugned order by restoring the order passed by the trial court but on a condition that appellant shall pay a sum of Rupee Ten thousand to the respondent (or deposit it in this court within one month from this date."
9. On the point of decision of case on merit by consolidation court, this Court in the case reported in 2008 (104) RD 565 Ramanuj Tewari and others Vs. Deputy Director of Consolidation Deoria and others has held as under in paragraph nos. 9 & 10.
9. Needless to say, after close of consolidation proceeding claim of any party is said to be barred under section 49 of U.P.C.H. Act and therefore, if there is no decision by any authority on merits and at the same time Deputy Director of Consolidation has found that order of the Assistant Consolidation Officer is not be in accordance with law then this Court is of the view that giving of direction to the Consolidation Officer to decide the claim of parties on merits after giving opportunity to both sides, in accordance with law, within a time bound frame, will be in the ends of justice. This Court is exercising equity powers and therefore, on the facts this Court is to interfere so that parties may get trial on merits and then a decision thereon.
10. Accordingly, this writ petition succeeds and is allowed. The impugned order passed by all the concerned/authorities are hereby quashed. The matter is directed to be revived at the level of Consolidation Officer with liberty to both sides to file their respective objections and then on exchange of pleadings, after framing the issues and opportunity of evidence the Consolidation Officer will decide the claim of parties on merits by keeping in mind that matter is old and now that is not to be prolonged any more for no justified reasons. Both parties have undertaken before this Court not to take any unwarranted adjournment unless it is required for very compelling reason.
10. In the present matter petitioner's claim has not been decided on merit by revisional court and there is no proper adjudication of petitioner's claim by Consolidation Officer as well as by appellate court, as such the Court is of the view that revisional court being last court of fact under Section 48 of U.P.C.H. Act has to decide the revision on merit in the place of technical grounds as dispute relates to title.
11. Considering the ratio of law laid down by Hon'ble Apex Court as well as the facts and circumstances of the case the interest of justice will be served by setting aside the order dated 14.09.2022 passed by the revisional court rejecting the petitioner's restoration application and sending the matter back before the revisional court to decide the petitioner's revision afresh on merit after allowing the restoration application dated 27.09.2021 imposing certain conditions upon the petitioner.
12. Accordingly, the writ petition is allowed. The impugned order of revisonal court dated 14.09.2022 passed by the respondent no. 2 is hereby set aside and revisional court is directed to allow the restoration application dated 27.09.2021 and restore the revision filed by the petitioner to its original number, provided that the petitioner deposits a sum of Rs. 10,000/- in the State Fund made for Legal Services and file the deposit receipt before the revisional court on the date fixed. The petitioner will appear before the revisional court on 05.12.2022, who shall decide the revision expeditiously, preferably within a period of six months from the date of production of certified copy of this order. It is made clear that revisional court shall not proceed with the matter unless petitioner file deposit receipt of Rs. 10,000/- before him which shall be kept on record of the revision.
Order Date :- 2.11.2022 Sanjeet