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1970 DIGILAW 391 (ALL)

Gomti v. Sub-Divisional Magistrate, Bansi, Basti

1970-09-29

C.D.PAREKH

body1970
ORDER C.D. Parekh, J. - This writ petition has been directed against an order dated 1-7-1968 passed by the Sub-Divisional Magistrate Bansi dismissing the revision of the Petitioners u/s 89 of the UP Panchayat Raj Act holding that it is barred by limitation. 2. Briefly stated the facts of the case are that one Muneshwar son of Bijai resident of village Karnjahar filed a complaint before the Nyaya Panchayat at Suhai Kanpurwa, District Basti on 9-10-1967. The complaint was enquired into and as it appears from the order sheet a copy of which h as been enclosed as annexure 'B' to this writ petition, the Petitioner himself admitted that various dates were fixed and the proceedings that took before the Nyaya Panchayat has been recorded therein. On 29-12-1967 the Petitioners who were accused in the casa were convicted for an offence u/s 379/406 IPC and they were fined Rs. 25/- each and they were also made liable to pay Rs. 50/- as compensation to the complainant. Against this judgment the Petitioners had preferred revision u/s 89 of the Panchayat Raj Act before the Sub-Divisional Magistrate Bansi. The Sub-Divisional Magistrate by the impugned order, without going into the merit of the revision and without going into the merit of the application u/s 29(2) which was filed along with the revision for, condoning the delay in filing the revision, decided the casa and held that the revision was barred by time. Against this order the Petitioner has preferred this writ petition. 3. The learned Counsel for the Petitioner has contended before me that u/s 89 of the UP Panchayat Raj Act an application may be made within 60 days from the data of the order complained of but if there be delay in filing the application and there are sufficient cause for not filing the application within time, an application Under Sub-section (2) of Section 29 of the Indian Limitation Act may be filed for condoning the delay. According to the learned Counsel for the Petitioner the Sub-Divisional Magistrate was in error in not considering the application Under Sub-section (2) of Section 29 of the Indian Limitation Act. 4. The learned Counsel for the opposite party stated before me that Sub-section (2) of Section 29 of the Indian Limitation Act would apply provided the fact justify the same. According to the learned Counsel for the Petitioner the Sub-Divisional Magistrate was in error in not considering the application Under Sub-section (2) of Section 29 of the Indian Limitation Act. 4. The learned Counsel for the opposite party stated before me that Sub-section (2) of Section 29 of the Indian Limitation Act would apply provided the fact justify the same. The argument is that the case was decided on 29-12-1967 in the presence of the parties and the computing period of 60 days from the date of the order, the revision should have been preferred by 27-2-1968 but as in fact it has been filed on 2-4-1968, therefore, on that date it was clearly barred by limitation. His contention is on the merit of the matter but whether the Magistrate was in error in not deciding application for condoning the delay is not disputed. 5. Considering the respective arguments of both the parties I have only to decide whether Sub-section (2) of Section 29 of the Indian Limitation Act would be applicable or not. It is conceded on behalf of the opposite parties that Sub-section (2) of Section 29 of the Limitation Act would apply to a proceeding u/s 89 of the Panchayat Raj Act. In my opinion as well the benefit of the section can be taken by the Petitioner. I am not prepared to consider the application itself filed before the Sub-Divisional Magistrate for condonation of delay. It is for the Sub-Divisional Magistrate to condone the delay or not on the facts and circumstances of the case. 6. In the result, the writ petition is allowed and the Sub-Divisional Magistrate, Bansi, District Basti is directed to consider the application for condonation of delay and decide the same on merits and if he feels that the delay may be condoned he may decide the revision as well on merit. In the special circumstances of the case I make no orders as to costs.