Research › Browse › Judgment

Allahabad High Court · body

1984 DIGILAW 116 (ALL)

Ram Nayan v. Gaon Sabha

1984-01-31

R.S.VARMA

body1984
JUDGMENT R.S. Varma, Member. - A suit under Section 229-B Z.A. and L.R. Act filed by Ram Navan against Gaon Sabha and State of U.P. was dismissed by the learned trial court on September 30, 1977. Appeal against that judgment was filed on December 12, 1977 that is beyond the period of limitation. No application under Section 5 Limitation Act was given at the time of filing of the appeal. Office had noted that the appeal was time barred but no other direction was given by the office. The file of the lower court was not received by the first appellate court till February 28, 1980 and several preceding dates were given for the purpose of requisitioning lower court file. The curt fixed March 26, 1980 for argument in the case. On that date the appellant field an application under Section 5 Limitation Act which was also accompanied by an affidavit and in that application it was written that the appellant had applied for copy of the trial court's order on October 25, 1977 and obtained it on Nov. 28, 1977. He further says that he went to his house for arrangement of money for the purpose of filing the appeal but he fell ill and recovered only on December 9, 1977. He, therefore, applied that the delay in filing the appeal be condoned. There was no objection against this application and no counter affidavit was filed. However the learned Additional Commission on March 28, 1980 dismissed the appeal on the ground that it was time barred and that compliance of Order XLI, Rule 3-A C.P.C. had not been made inasmuch as no application under Section 5 Limitation Act along with affidavit was given at the time of the appeal. 2. The learned counsel for the appellant has argued the case on several points. The main argument advanced by him is that inspite of Order 41 Rule 3-A C.P.C. there has been no change in Paras 161 to 176 of the revenue Court Manual and so unless these paras provide for application under Section 5 Limitation Act and Affidavit along with the presentation of the appeal, the newly added Rule 3-A of Order 41 C.P.C. will not be applicable in view of Section 341 Z.A. and L.R. Act which lays down that unless these is any provision contrary to those of the U.P.Z.A and L.R. Act the C.P.C. will apply. Paras 161 to 176 of the Revenue Court Manual specifically provide for the procedure to be adopted at the time of the filing of the appeal. It nowhere says that an application under Section 5, Limitation Act along with an affidavit is necessary at the time of filing of the appeal. Para 163(d) of the Revenue Court Manual says that on receipt in the Board's Office, the appeal or application which is not in from, or which prima facie, has not been filed within the period of limitation shall be laid as soon as possible before the court for orders. In this case if the office would have pointed out the particular defect that the time barred appeal had not been accompanied with the application under section 5 Limitation Act and the affidavit the appellant would have certainly cured the defect by filing such an application. The office also had not put up the file before the court for orders as has been laid down in para 163(d). In 1975 R.D. 156 (F.B.) this Board had held that the office is duty bound to point out any defect in the presentation of appeal and that if there is any slackness on the part of the office or of the court the parties should not be penalised for that. In this case the appeal was time barred and yet it was accepted and admitted by the first appellate court. If there was such a serious defect in the presentation of the appeal that it had to be dismissed out right as the learned additional commissioner later on did no office should have made such a condition at the very time of presentation of the appeal that it had to be dismissed out right as the learned additional commissioner later on did so office should have made such a condition at the very time of presentation of the appeal and should have pointed out this defect to the appellant or his counsel so that the defect could be cured. Also the office was duty bound to put this case immediately before the court concerned for suitable order but it did not do so and the case proceeded as far there was no defect in it. If there was no application under Section 5 Limitation Act Accompanied by an affidavit, the court should have out right refused to take the appeal. If there was no application under Section 5 Limitation Act Accompanied by an affidavit, the court should have out right refused to take the appeal. Instead the case proceeded upto the state of argument and this fact of limitation was never brought to be notice of the court. In AIR 1983 Patna 189 it was held, whether a provision is Mandatory or directory is to be tested with regard to the fact whether the provision provides sanction for not complying with the direction. Rule 3-A of Order 41 of the Code does not lay down that if the appeal field beyond time, is not accompanied by an application under section 5 of the Limitation Act the court shall reject it. Therefore it can be held that the provisions of Rule 3-A of Order 41 of the C.P.C. are directory. 3. In this case I rely on the ruling of the Patna High Court against which no other ruling of any other High Court that been brought to my notice. The Additional grounds for following this ruling is that paras 161 to 176 of the Revenue Court Manual do not provide that a application under Section 5 Limitation Act shall be given along with the time barred appeal. A further ground is that the officer did not point out the mistake to the appellant or his counsel at the very outset otherwise this defect could have been easily cured by the appellant at the very time. In these circumstances I think that it would be hard to penalise the appellant for not giving application under SEction 5 Limitation act, along with affidavit, at the very time of the presentation of the appeal. In this case he gave his application before the argument and in these circumstances the application should have been allowed because there was no objection and counter affidavit field by the other party against this application under Section 5 Limitation Act and against the affidavit field by the appellant. 4. I hold that the appeal field by Ram Nayan in the court of the Additional commissioner was competent one and that the delay in filling the appeal should have been condoned in view of the un-controverted affidavit filed by the appellant who has alleged that he was prevented because of illness to file the appeal within time. 4. I hold that the appeal field by Ram Nayan in the court of the Additional commissioner was competent one and that the delay in filling the appeal should have been condoned in view of the un-controverted affidavit filed by the appellant who has alleged that he was prevented because of illness to file the appeal within time. The delay was only of 6 or 7 days and it should have been condoned. 5. I allow the second appeal, set aside the order of the learned Additional Commissioner and sent back the case to him for deciding the appeal on merits after hearing the parties.