Ramnarain v. Tribhuvan Nath — 1956 DIGILAW 110 (RAJ)

The circumstances which have given rise to this application in revision may be stated in brief as below :— Ram Narain the applicant being aggrieved by an order passed by the Rent Controller, Jodhpur on 17th July, 1951 under the Marwar House Rent Control Act, 1951 filed and appeal before the Collector, Jodhpur. It is alleged that when that appeal was presented before the Collector, he verbally directed the appellant to present it before the District Judge who took cognizance of it and dismissed it on 22.6.52. The appellant went in revision before Honble High Court who also dismissed it on 5.1.53. A review application before the High Court also met the same fate and it was dismissed on 23.7.54. Thereafter the appellant again filed an appeal on 29.8.54 before the Collector Jodhpur on the ground that the Rajasthan High Court while disposing of the revision held in its judgment dated 10.8.53 that the proper forum for filing an appeal against the decision of the Rent Controller was the Collector and not the Dist. Judge. The learned counsel for the opposite party challenged the maintainability of the appeal before the learned Collector on the ground that it was time-barred. It was argued before the learned Collector by the learned counsel for the appellant who is the applicant before us that he should be given the benefit of sec. 5 of the Indian Limitation Act as he was under the bonafide belief that an appeal from the order of Rent Controller lay to the Distt. Judge and that he did so at the instance of the Collector who directed him to do so. The learned Collector examined the law on the subject and has rightly observed that even if the applicant was misled by any such direction given by the then Collector, there was nothing on the record to show that he had returned the memorandum of appeal with necessary endorsement thereon for presentation to the District Judge. The learned Collector further went on to say that even if it could be believed for a moment that the learned Collector returned the memorandum of appeal to the applicant and he presented it before the District Judge, it was incumbent upon the applicant to have presented the appeal to the Collector on the next day or immediately after the pronouncement of the judgment of the High Court dated 10.8.53. Instead of doing so, he preferred to file a revision application before the High Court and delayed the presentation of appeal by 1 month and 6 days after the decision of the review application. The learned Collector relying on a Division Bench of the Raj-sthan High Court Civil Miscellaneous application No. 21 of 1950 decided on 26.7.51 held that it is the duty of the applicant praying for indulgence under sec, 5 to explain each days delay satisfactorily and if he fails to do so, he cannot get the benefit of sec. 5 of the Indian Limitation Act and since the applicant failed to explain the delay, the appeal was time-barred which was accordingly dismissed by the learned Collector. The applicant has now come in revision before us. It is argued that the affidavit filed by him in support of the fact that the delay in filing the appeal after 1 month and 6 days after the decision of the review application, was beyond his control should be considered sufficient to allow him the indulgence under sec. 5 of the Indian Limitation Act. We have looked into the affidavit and find that in the first place it has not been duly attested and secondly it does not contain any satisfactory explanation for each days delay. The learned counsel for the opposite party while contesting that the applicant failed to present the appeal within a reasonable time after the expiry of the prescribed period of limitation brought to our notice the latest decision of the High Court of Rajasthan (Prem Behari Vs. Board of Revenue and others Civil 28 of 1955 under Article 226 of the Constitution of India ) dated 10th January, 1956 in which it has been held that the Board of Revenue had no revisory jurisdiction under sec. 14 of the Marwar Act on the application of a party. Nevertheless he prayed that as he was hard hit for no fault of his, the Board may be pleased to examine the legality and propriety of the impugned order suo-moto. We have accordingly done so and find that in the absence of an endorsement by the Collector returning the memorandum of appeal for presentation to the District Judge we cannot subscribe to the view that there was valid presentation of the appeal before the Collector. We have accordingly done so and find that in the absence of an endorsement by the Collector returning the memorandum of appeal for presentation to the District Judge we cannot subscribe to the view that there was valid presentation of the appeal before the Collector. It is clear therefore, that the applicant elected to choose a forum of his own accord and now after having exhausted all the remedies on the civil side, it cannot be held that the same appeal still survives. For reasons, which we have also discussed above he is also not entitled to any indulgence under sec. 5 of the Limitation Act. In the circumstances, the application in revision stands rejected.[Citation : 1961 RLW (RJ) 96] Board of Revenue KANWAR BAHADUR & S.L. AHUJA, MEMBERS Ramnarain Versus Tribhuvan Nath Case No. 5/Jodhpur of 1956, decided on 11th April, 1956 Limitation Act, sec. 5—Appellant alleging that he filed appeal before Collector but on his verbal directions presented same before District Judge who disposed it of and revision and review also dismissed by High Court—Benefit of S. 5 cannot be claimed by appellant now. Harikrishana Thanbi, for Applicant; Haraklal, for Opposite party The circumstances which have given rise to this application in revision may be stated in brief as below :— Ram Narain the applicant being aggrieved by an order passed by the Rent Controller, Jodhpur on 17th July, 1951 under the Marwar House Rent Control Act, 1951 filed and appeal before the Collector, Jodhpur. It is alleged that when that appeal was presented before the Collector, he verbally directed the appellant to present it before the District Judge who took cognizance of it and dismissed it on 22.6.52. The appellant went in revision before Honble High Court who also dismissed it on 5.1.53. A review application before the High Court also met the same fate and it was dismissed on 23.7.54. Thereafter the appellant again filed an appeal on 29.8.54 before the Collector Jodhpur on the ground that the Rajasthan High Court while disposing of the revision held in its judgment dated 10.8.53 that the proper forum for filing an appeal against the decision of the Rent Controller was the Collector and not the Dist. Judge. The learned counsel for the opposite party challenged the maintainability of the appeal before the learned Collector on the ground that it was time-barred. Judge. The learned counsel for the opposite party challenged the maintainability of the appeal before the learned Collector on the ground that it was time-barred. It was argued before the learned Collector by the learned counsel for the appellant who is the applicant before us that he should be given the benefit of sec. 5 of the Indian Limitation Act as he was under the bonafide belief that an appeal from the order of Rent Controller lay to the Distt. Judge and that he did so at the instance of the Collector who directed him to do so. The learned Collector examined the law on the subject and has rightly observed that even if the applicant was misled by any such direction given by the then Collector, there was nothing on the record to show that he had returned the memorandum of appeal with necessary endorsement thereon for presentation to the District Judge. The learned Collector further went on to say that even if it could be believed for a moment that the learned Collector returned the memorandum of appeal to the applicant and he presented it before the District Judge, it was incumbent upon the applicant to have presented the appeal to the Collector on the next day or immediately after the pronouncement of the judgment of the High Court dated 10.8.53. Instead of doing so, he preferred to file a revision application before the High Court and delayed the presentation of appeal by 1 month and 6 days after the decision of the review application. The learned Collector relying on a Division Bench of the Raj-sthan High Court Civil Miscellaneous application No. 21 of 1950 decided on 26.7.51 held that it is the duty of the applicant praying for indulgence under sec, 5 to explain each days delay satisfactorily and if he fails to do so, he cannot get the benefit of sec. 5 of the Indian Limitation Act and since the applicant failed to explain the delay, the appeal was time-barred which was accordingly dismissed by the learned Collector. The applicant has now come in revision before us. It is argued that the affidavit filed by him in support of the fact that the delay in filing the appeal after 1 month and 6 days after the decision of the review application, was beyond his control should be considered sufficient to allow him the indulgence under sec. The applicant has now come in revision before us. It is argued that the affidavit filed by him in support of the fact that the delay in filing the appeal after 1 month and 6 days after the decision of the review application, was beyond his control should be considered sufficient to allow him the indulgence under sec. 5 of the Indian Limitation Act. We have looked into the affidavit and find that in the first place it has not been duly attested and secondly it does not contain any satisfactory explanation for each days delay. The learned counsel for the opposite party while contesting that the applicant failed to present the appeal within a reasonable time after the expiry of the prescribed period of limitation brought to our notice the latest decision of the High Court of Rajasthan (Prem Behari Vs. Board of Revenue and others Civil 28 of 1955 under Article 226 of the Constitution of India ) dated 10th January, 1956 in which it has been held that the Board of Revenue had no revisory jurisdiction under sec. 14 of the Marwar Act on the application of a party. Nevertheless he prayed that as he was hard hit for no fault of his, the Board may be pleased to examine the legality and propriety of the impugned order suo-moto. We have accordingly done so and find that in the absence of an endorsement by the Collector returning the memorandum of appeal for presentation to the District Judge we cannot subscribe to the view that there was valid presentation of the appeal before the Collector. It is clear therefore, that the applicant elected to choose a forum of his own accord and now after having exhausted all the remedies on the civil side, it cannot be held that the same appeal still survives. For reasons, which we have also discussed above he is also not entitled to any indulgence under sec. 5 of the Limitation Act. In the circumstances, the application in revision stands rejected.