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1984 DIGILAW 690 (ALL)

Girdhari v. Deputy Director of Consolidation

1984-09-05

J.N.DUBEY

body1984
JUDGMENT J.N. Dubey, J.- This petition is directed against the order dated 27-9-1973 of the Deputy Director of Consolidation, Gorakhpur. 2. It appears that the land in dispute was recorded in the name of Indrasen, Opposite Party No. 4 in the basic year. The petitioner filed objection under Section 9 of the U.P. Consolidation of Holdings Act (hereinafter referred to as the Act) claiming co-tenancy in the land which was dismissed by the Consolidation Officer on 16-3-1972. The petitioner filed appeal to the Settlement Officer Consolidation which was also dismissed on 20-12-1972 by the Assistant Settlement Officer Consolidation. The petitioner thereafter filed a revision to the Deputy Director of Consolidation which was also dismissed on 27-9-1973. 3. I have heard the learned counsel for the parties and perused the record. 4. The Deputy Director of Consolidation did not go into the merits of the revision and dismissed it on the ground of limitation and non-compliance of Rule III of the U.P. Consolidation of Holdings Rules (hereinafter referred to as the Rules). The learned counsel for the petitioner has urged that the Deputy Director of Consolidation was not legally justified in dismissing the revision on the question of limitation without affording the petitioner an opportunity to explain the delay. He has further urged that the provisions of Rule 111 of the Rules are not mandatory and, therefore, the failure of the petitioner to file a certified copy of the order of the Consolidation Officer was not fatal, more so when the record of the subordinate courts had already been summoned and was before the Deputy Director of Consolidation at the time of hearing of the revision. According to him, the Deputy Director of Consolidation should have afforded an opportunity to him to move application under Section 5 of the Indian Limitation Act for explaining the delay in filing the revision and if it was found by him that the petitioner has failed to explain the delay then he should have exercised his suo motu powers under Section 45 of the Act. On the other hand, the learned counsel for the contesting opposite parties submitted that the revision was barred by time and no application was moved by the petitioner for condonation of delay and, therefore, the Deputy Director of Consolidation was perfectly justified in dismissing the revision as barred by time. On the other hand, the learned counsel for the contesting opposite parties submitted that the revision was barred by time and no application was moved by the petitioner for condonation of delay and, therefore, the Deputy Director of Consolidation was perfectly justified in dismissing the revision as barred by time. He has further urged that the compliance of Rule 111 of the Rules was mandatory and, therefore, the Deputy Director of Consolidation committed no error in dismissing the revision for non-compliance thereto. 5. It has been held by this in Smt. Indrasani Devi v. Deputy Director of Consolidation, Varanasi and others (R.D. 1981 page 247), that if a Court comes to the conclusion that a particular case is barred by time then it should give an opportunity to the party concerned to explain the delay. Thus, if the Deputy Director of Consolidation was of the view that the revision was barred by limitation he should have afforded opportunity to the petitioner to move an application under Section 5 of the Indian Limitation Act for explaining the delay in filing the revision, Similarly, Full Bench of this Court in Ramakant Singh v. Deputy Director of Consolidation, U.P. and others, (A.I.R. 1975 Allahabad 120), has held that : "After the record has been called for by the Deputy Director of Consolidation under Section 48 he should examine the record to decide whether it was a fit case for exercise of the revisional jurisdiction suo motu. Such opinion shall have to be formed even where the application in revision moved by a party is defective having been made beyond the prescribed period of limitation or all the necessary parties have not been impleaded." It is now well settled that Rule 111 of the Rules is not mandatory and therefore, the failure of the petitioner to file a certified copy of the order of the Consolidation Officer could not result in the dismissal of the revision specially when the record of the subordinate courts was already before the Deputy Director of Consolidation. 6. In my opinion, the Deputy Director of Consolidation erred in dismissing the revision on the question of limitation and for non-compliance of Rule 111 of the Rules. 6. In my opinion, the Deputy Director of Consolidation erred in dismissing the revision on the question of limitation and for non-compliance of Rule 111 of the Rules. Once it was discovered during arguments that the revision filed by the petitioner was barred by time the Deputy Director of Consolidation should have afforded an opportunity to him to move an application under Section 5 of the Indian Limitation Act for explaining the delay more so when the delay was only of a few days and in case he was of ultimate opinion that the petitioner has not succeeded in explaining the delay he should have examined the record to decide whether it was a fit case for exercise of the revisional jurisdiction suo motu. 7. In the result, the writ petition succeeds and is allowed. The order dated 27-9-1973 passed by the Deputy Director of Consolidation, Gorakhpur is quashed. He is directed to decide the revision of the petitioner afresh in the light of the observations made above. In the circumstances of the case. I direct the parties to bear their own costs.