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1969 DIGILAW 110 (RAJ)

Guganram v. Daluram

1969-06-18

B.P.SOOD, G.B.K.HOOJA

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This revision petition came to be heard by our Division Bench in pursuance of the order of the learned Member Shri B.C. Mukerji dated the 10th of January, 1968, raising the question whether in the facts and circumstances of the case. Rule 17 (d) of Revenue Courts Manual is to be regarded as invalid as being in conflict with Sec. 5 of the Indian Limitation Act. This revision petition arises out of an application under Sec. 251 of the Rajas-than Tenancy Act. On 10-10-1965, the Panchayat ordered the non-applicants not to obstruct the passage leading to the fields of the applicant. The same day the non-applicants were notified of the aforesaid order. The period of limitation for filing the appeal was 30 days, but the non-applicants filed the appeal before the Collector on 2-12 1965. The applicant raised the question of limitation before the Collector, but the Collector over-ruled the same vide his order dated 20th of April, 1966. In attacking this order, it is argued on behalf of the applicant that the Collector has ignored the provisions of rule 17 (d) of the Rajasthan Courts Manual, which prescribes that in the case of memorandum of appeal which is filed after the expiry of the period of limitation, an application supported by an affidavit for extension of the period of limitation under Sec. 5 of the Indian Limitation Act will accompany the memo of appeal. It is pointed out that no application under sec. 5 of the Indian Limitation Act was submitted for condonation of delay before the Collector. Thus the order of the Collector is invalid. On the other hand, the non-applicants rely on the memo of appeal which contains a long narration supported by an affidavit as to how the copy of the Panchayats order was not made available to them, inspite of their best efforts. It is urged that under these circumstances, the filing of the appeal was inevitably delayed. The Colleotor duly took into consideration the allegations of the non-applicants and held that there was sufficient cause for extending the period of limitation and that the appeal should be deemed to be within limitation. It is urged that under these circumstances, the filing of the appeal was inevitably delayed. The Colleotor duly took into consideration the allegations of the non-applicants and held that there was sufficient cause for extending the period of limitation and that the appeal should be deemed to be within limitation. The learned counsel for the applicant relies on the rule laid down in Sohanlal Chhaju Lal vs. Bolya (1965 RRD 17.) wherein Bench of this Board has held that R. 17 of the Revenue Courts Manuar is mandatory and that any appeal or revision must be accompanied by the certified copy of judgment and decree or order and also a copy of judgment of original court where remedy is sought against appellate decree or order, together with application under Sec. 5 of the India Limitation Act, where limitation has expired, unless dispensed with by Court on sufficient cause. It was held that an appeal or revision not accompanied by the documents mentioned in Rule 17 was defective and incomplete, and the failure to cure the defect within limitation where sufficient cause was not shown, was fatal. We fail to see how this authority can help the applicant. In the present case, sufficient cause exists for the failure to attach the copy of the order of the lower court with the memo. As regards the failure to attach a separate application under Sec. 5 of the Indian Limitation Act, we find in this case that the narration in the appeal describes at considerable length the causes which led to the failure of the non-applicants to enclose the original order and it further discloses that this caused the delay in the filing of the appeal. The affidavit filed by the non-applicant Daluram states that on being informed of the order on 10-10-65, he approached the Sarpanch on 13-10 65 for a copy of the order. The Sarpanch was paid a sum of Rs. 4.25 and he promised to give the copy on the next day, but the same was not made available on the next day, when the Sarpanch is alleged to have threatened him to first open the way and pay the penalty before a copy could be made available to him. Thereupon, non-applicant Daluram approached the Development Officer (Vikas (Adhikari) on 15-10-65 for the copy, but the same was not made avalable to him. Thereupon, non-applicant Daluram approached the Development Officer (Vikas (Adhikari) on 15-10-65 for the copy, but the same was not made avalable to him. On 29-10-65 he approached the Collector who in turn suitably directed the Vikas Adhikari. On 30-10-65, Daluram approached the Vikas Adhikari who stated that he would write to the Sarpanch to make the copy available. On 5-11-65, Daluram sent a money-order of Rs.5/- to the Sarpanch on the advice of the Vikas Adhikari. On 6-11-65 he sent another application to the Collector by registered post and endorsed copies of the same to the S. D. O., Tehsildar and the Sarpanch, On 19-11-65 he filed yet another complaint with the Collector who in turn again directed the Vikas Adhikari to make the copy available, Under-these circumstances the non-appli-cants were obliged to file the appeal on 2 12-65 without the copy of the order. A perusal of the record shows that the nonapphcants were able to obtain a copy of the order from the Court of the Collector in April, 1966. No doubt, in this case, no separate application under Sec. 5 of the Indian Limitation Act has been submitted, but, in our opinion, the narrations made in the memo of appeal and the accom-panying affidavit, substantially fulfils the requirements of law. In this, we are supported by the rule cited by Shri B. C. Mukerji in his order of reference, which may be reproduced as below : "Merely because there was no written application by the appellant was hardly a sufficient ground for refusing him the relief, if he was otherwise entitled to it. It has been frequently held that procedure is meant for advancing and not for obstructing the cause of justice; and if the entire material was on the record, as in the present case it obviously was, it could not promote the ends of justice, if that material was ignored and the relief refused to the appellant, merely because he had not claimed it by means of a formal application in writing or that a formal affidavit was not filed. The language of Sec. 5 of the Limitation Act does not provide that an application in writing must be filed before relief under the said provisions can be granted. (Firm Kauramal v/s Firm Mathuradas—AIR 1959 Punjab 6461). The language of Sec. 5 of the Limitation Act does not provide that an application in writing must be filed before relief under the said provisions can be granted. (Firm Kauramal v/s Firm Mathuradas—AIR 1959 Punjab 6461). In this view of the matter we do not find any conflict between the Provisions of rule 17 (d) of the Rajasthan Courts Manual and Sec. 5 of the Indian Limitation Act. As regards the merits of the case, we are satisfied that the order of the Panchayat was not passed after giving due opportunity to the non-applicants of being heard and, therefore, there is no defect in the order of the collector impugned before us setting aside the order of the Gram Pnachayat. However as the matter under sec. 251 of the Rajasthan Tenancy Act falls within the jursidic-tion of the Panchayat, we modify the order of the Collector to this extent that he case may be remitted to a neighbouring Panchayat in view of the fact that the Panchayat concerned appears to be prejudiced against the non-applicants as would appear from the facts of the case.