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1981 DIGILAW 55 (ALL)

Keshkumar v. Deoria

1981-01-09

K.P.SINGH

body1981
ORDER K.P. Singh, J. - This writ petition is against the judgment of Sri R.G. Pandey, Assistant Director of Consolidation, Deoria dated 31-7-1979 whereby the application moved by Ram Naresh, opposite party No. 2 in the present writ petition has been allowed for setting aside the order dated 10-10-1975 passed in favour of the petitioner's father in Revision No. 3837 Mukhoo v. State (Annexure 1' attached with the writ petition). 2. The only point canvassed before me in the present writ petition is that the revisional court has patently erred in setting aside the order dated 10-10-1975 without considering the question of limitation and condoning the delay in filing an application for setting aside the order dated 10-10-75 in favour of the petitioner's father. 3. The learned counsel for the contesting opposite party has submitted in reply that the order dated 10-10-1975 was passed behind the back of the contesting opposite party Ram Naresh, hence it has been rightly set aside by the revisional court through the impugned judgment dated 31-7-79 and in this view of the matter the impugned judgment should not be interfered with in writ jurisdiction by this court. 4. The learned counsel for the petitioner invited my attention to the rulings reported in AIR 1973 All 378 , Ibrahim v. Dy. Director of Consolidation, Basti. 1974 Rev Dec 144: ( AIR 1973 All 552 ), Chamba Singh v. State of U. P., AIR 1976 All 159 , Sohan v. Abdul Hameed Khan, 1978 All WC 588: (1978 All LJ 823)Ram Sunder Singh v. Ram Mohan Singh and 1979 All LJ 764, Parsidh Narain Rai v. Dy. Director of Consolidation, Azamgarh and has contended that due to lapse of time the petitioner had got a valuable right which has been snatched by the revisional court through the impugned order without applying its mind to the question of condonation of delay. 5. In AIR 1973 All 378 , Ibrahim v. Dy. Director of Consolidation, Basti a learned single Judge of this Court has observed as below :- "....... 5. In AIR 1973 All 378 , Ibrahim v. Dy. Director of Consolidation, Basti a learned single Judge of this Court has observed as below :- "....... In my opinion it is open to an appellate court to entertain an objection about the bar of limitation in presenting objection under Section 9 and to decide whether the Consolidation Officer had applied its mind to the explanation for the delay and whether he had exercised his discretion in condoning the delay in an arbitrary manner or upon a ground which is not, material. The Settlement Officer (Consolidation) is clearly in error when he states that while exercising appellate powers it is not open for him to go into the question whether the delay had been rightly condoned by the Consolidation Officer." 5-A. In 1974 Rev Dec 144 : ( AIR 1973 All 552 ), Chamba Singh v. State of U. P. a learned single Judge of this Court has observed as below:- "....... It is undoubtedly true that normally courts are loath to interfere with the order condoning delay. This, however, is not a rule inflexible and in appropriate cases even an order under Section 5 of the Limitation Act can be interfered with under Article 226 of the Constitution." 6. In AIR 1976 All 159 , Sohan v. Abdul Hameed Khan, a learned single Judge of this Court has pointed out as below:- "....... It is a settled law that the applicant had to show sufficient cause not only for not filing the appeal within the period of limitation prescribed by law, but to explain the delay made thereafter day by day. The explanation must therefore, cover the whole of the period of delay. It is equally settled that in construing Section 5 of the Limitation Act It is relevant to bear in mind two important considerations, namely, (1) the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties and this legal right which has accrued to the decree-holder by lapse of time should not be light heartedly disturbed, and (2) if sufficient cause for excusing the delay is shown discretion is given to the court to condone the delay and admit the appeal. It is pointed out in Ramlal v. Rewa Coalfields Ltd. ( AIR 1962 SC 361 ): (1961 All LJ 815) that even after sufficient cause has been shown, a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by S. 5. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fide may fall for consideration but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant." 7. In 1978 All WC 588: (AIR 1978 All 823), Ram Sunder Singh v. Ram Mohan Singh, a learned single Judge of this Court (has observed as below):- "....... Any person approaching any authority beyond time has to satisfy the reason for his absence or the cause due to which he was prevented from appearing in time. The concept of sufficient cause is well known. It is true that Section 5 of the Limitation Act is to be construed liberally, but it cannot be given a go-by otherwise the courts of law shall cease to be courts of law and shall become courts where instead of law the will of the authority shall prevail." 8. In 1979 All LJ 764, Parsidh Narain Rai v. Deputy Director of Consolidation, Azamgarh, I have also indicated that:- "When a remedy of a party is barred by lapse of time, the other party gets valuable right and that right can be negatived only when sufficient cause has been shown in preferring the delayed revision petition." 9. In the present case I find that the revisional court has not at all applied its mind to the question of limitation and has allowed the application for setting aside the ex parte order in favour of the petitioner when opposite party Ram Naresh had filed the application after more than two years. The revisional court appears to have exceeded its jurisdiction in passing the impugned order without adverting to the question of limitation, hence its order suffers from patent error of law. 10. The revisional court appears to have exceeded its jurisdiction in passing the impugned order without adverting to the question of limitation, hence its order suffers from patent error of law. 10. The learned counsel for the contesting opposite party has invited my attention to a number of rulings in support of his contention that when substantial justice has been done between the parties this Court should not interfere with impugned judgment in the exercise of its powers under Article 226 of the Constitution. 11. In 1957 All LJ 193: ( AIR 1957 All 276 ), Pooran Singh v. Addl. Commr Agra a Division Bench of this court has observed that:- "The mere fact that an order is without jurisdiction or that there is an error apparent on the face of the record is not sufficient to justify the issue of a writ. In addition to that it must be established that the order has resulted in manifest injustice. It is, therefore, open to the High Court to refuse to issue a writ if it feels that if a writ prayed for is issued it will clearly effectuate an injustice in the case." 11-A. In 1964 All LJ 240, Parabhu v. Dy. Director of Consolidation, Gorakhpur a Division Bench of this Court has observed that; "Even when a revisional court under Section 48 of U.P.C.H. Act acted in excess of jurisdiction but its order was proper, equitable and just, the High Court should not issue a writ for setting aside such an equitable order." 12. In AIR 1963 SC 1192 , Corporation of the City of Nagpur v. Nagpur Hand-loom Cloth Market Company Ltd., their Lordships of the Supreme Court has observed as below in para 9 of their judgment: "......... This ground may appeal to us inadequate, but the High Court has exercised its discretion in holding that, a petition notwithstanding the delay should be entertained, and we are unable in a matter essentially of discretion to set aside the judgment of the High Court on this ground alone ....." 13. In AIR 1972 All 184 . Kundan Kishan Lal v. Board of Revenue, a learned single Judge of this Court has observed in para 5 as below:- "........ This Court will not interfere when the petitioner merely relies on technicalities and does not show any injustice. In AIR 1972 All 184 . Kundan Kishan Lal v. Board of Revenue, a learned single Judge of this Court has observed in para 5 as below:- "........ This Court will not interfere when the petitioner merely relies on technicalities and does not show any injustice. A remedy under Article 226 of the Constitution is discretionary and the court will be hesitant to grant a relief under that Article to a petitioner when it finds that substantial justice has been done between the parties. 14. After going through the affidavit, counter-affidavit and rejoinder-affidavit in the present case, it is difficult to say that substantial justice has been done between the parties. The dispute centres round 'S' chak measuring .03 acre on plot No. 977. It appears 1hat the petitioner was not allotted a chak on plot No. 977 and his father had put forward a claim for a chak on plot No. 977. The claim of the petitioner's father had been rejected by the first two courts, but the prayer was granted by the revisional court. Vide para 5 of the counter-affidavit it appears that the contesting opposite party No. 2 Ram Naresh has got .17 acre land of plot No. 977 and if he parts with .03 acre to the petitioner it appears to me that substantial justice would be done between the parties in that case. Both the parties are claiming chak on plot No. 977 and if the petitioner gets a chak measuring .03 acre as given by the revisional court through its order dated 10-10-75 no material injustice shall occur to the contesting opposite party No. 2 Ram Naresh. To my mind the contention of the learned counsel for the contesting opposite party that the impugned judgment should not be interfered with on the ground that substantial justice has been done between the parties does not appear to be correct in the circumstances of the present case. 15. The perusal of Annexure 'I' attached with the writ petition does not indicate that the revisional court has applied its mind to the provisions of Section 48 of the U.P.C.H. Act. 15. The perusal of Annexure 'I' attached with the writ petition does not indicate that the revisional court has applied its mind to the provisions of Section 48 of the U.P.C.H. Act. The order dated 10-10-75 in favour of the petitioner is not a speaking order and the revisional court has not indicated through the order dated 10-10-75 the incorrectness, illegality and impropriety committed by the subordinate authorities in not giving the chak to the petitioner on plot No. 977 hence the order being non-speaking order did not comply with the provisions of law mentioned in Section 48 of the U.P.C.H. Act. Moreover, the aforesaid order appears to have been passed without affording reasonable hearing to the contesting opposite party No. 2 hence the order dated 10-10-75 is in violation of principles of natural justice and is bad in law. If I interfere with the impugned order dated 31-7-1979 on the ground that the revisional court had failed to consider the question of limitation, there are chances that, the order passed in favour of the petitioner on 10-10-75 without hearing opposite party No. 2 shall be restored. I have already indicated above that the aforesaid order dated 10-10-75 is also not a legal order. In writ jurisdiction an illegal order should not be interfered, with to restore another wrong or illegal order, and on this principle I am not inclined to interfere with the impugned order passed by the revisional court on 31-7-1979. 16. Before parting with this case I think it proper to observe that the revisional court shall hear the revision petition and afford reasonable opportunities to the parties concerned and shall see that if in law and equity the petitioners deserve a chak measuring .03 acre on plot No. 977 as he had been given by the revisional court through the order dated 10-10-75 his claim should be maintained after complying with the letters of law. The orders of the subordinate authorities can be interfered with by the revisional court on the ground of impropriety if the claim of the petitioner is found legal and equitably just on the ground that his house exists on plot No. 978. 17. In the result, the writ petition fails and is dismissed, but it is expected that the revisional court shall try to do substantial justice between the parties. 17. In the result, the writ petition fails and is dismissed, but it is expected that the revisional court shall try to do substantial justice between the parties. It can allot the chak to the petitioner at the place where the petitioner has got a chak in pursuance of the order dated 10-10-75 after affording reasonable opportunity to contesting opposite party No. 2 Ram Naresh if the claim of the petitioner is legal and just. Merely because the order dated 10-10-75 has been set aside as opposite party No. 2 was not heard it does not mean that the petitioner is not entitled to the chak allotted to him on plot No. 977. The allotment to the petitioner may be justified by pointing out the impropriety committed by the subordinate authorities if the observation of the revisional court contained in the order dated 10-10-75 is correct to the effect, that from enquiry the claim of the petitioner was proper. Parties are directed to bear their own costs.