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Allahabad High Court · body

1986 DIGILAW 47 (ALL)

Adalat Singh v. Board of Revenue

1986-01-16

B.L.YADAV

body1986
JUDGMENT B.L. Yadav, J. - This petition is directed against the order of the Board of Revenue dated 13.7.1976 The appeal has been directed to abate as no substitution application was filed on the death of G Mrao Rao, father of Respondent No. 3, within ninety days and that no application to set aside abatement was filed within a period of sixty days thereafter. 2. I have heard Sri A.N. Singh, learned Counsel for the Petitioners and Sri N.C. Pandey, learned Counsel for the Respondents. 3. The learned Counsel for the Petitioners urged that Ghirau Rai died on 31.3.1974 and the substitution application was filed on 30.9.1974 accompanied by an application u/s 5 of the Limitation Act for condensation of delay. It appears that till 31.8.1974 an application to set aside abatement must have been made and in fact it was made on 10.9.1974. Hence there appears to be ten days delay in making the application to set aside the abatement and as it was a negligence of the clerk of the counsel for the Petitioner that was in fact a sufficient cause for condoning the delay. Reliance was placed on Lala Hanuman Das v. Pirthvi Nath, 1956 AWR 455 . 4. Sri N.C. Pandey, learned Counsel for the Respondents, on the other hand, urged that the delay was not sufficiently explained and that no application under Order XXII Rule 9 CPC was filed and application u/s 5 of the Limitation Act cannot be treated to be an application for setting aside the abatement also, and that the application moved by the Petitioners was not maintainable and cannot be treated as an application to set aside abatement. Reliance was placed on Sitaram Ramcharan v. Nagrasna (M.N.) Authority under the Payment of Wages Act for Ahmedabad Area 1960 LLJ SC 29 . 5. Having heard the learned Counsel for the parties I am of the view that the submissions made by the learned Counsel for the Petitioners are not without substance. In the instant case, u/s 5 of the Limitation Act, an application along with the substitution application was moved and it was prayed that the delay in filing the substitution application may be condoned and the substitution application may be treated to be within time and abatement, if any, may be set aside. The mistake was alleged that of the clerk of the counsel for the Petitioners. The mistake was alleged that of the clerk of the counsel for the Petitioners. In Lai Hanuman Dass v. Pirthvi Nath 1956 AWR 455 it was held by a Division Bench of this Court that the mistake of the clerk of the counsel would be treated to be a sufficient cause for condensation of delay. It is thus clear that the delay would be treated to be sufficiently explained. As regards the case of Sita Ram Ram Charan v. Nagrasna 1960 LLJ SC 29 relied upon by the learned Counsel for the Respondents suffice it to say that in that case delay was not cause due to negligence of the clerk of the counsel and as the delay was not condoned, hence the finding on that point was treated to be finding of fact and it was held that no case for interference was made out. 6. In O.P. Kathpalia Vs. Lakhmir Singh (Dead) and Others, AIR 1984 SC 1744 it has been held by the Supreme Court as follows: An order u/s 5 of the Limitation Act refusing to condone the delay would not be interfered with unless the failure to exercise the jurisdiction would lead to miscarriage of justice. 7. In the instant case I am satisfied that the refusal to condone the delay by the Board of Revenue has resulted in manifest injustice to the Petitioners for no fault of their own. At the time the Petitioners gave instructions and paid expenses to Sri Ramayan Dubey, the clear of Sri A.N. bmgh, the learned Counsel for the Petitioners, the substitution application was within time. In this view of the matter the delay has been satisfactorily explained and deserved to be condoned. Under these circumstances the delay in filing substitution application is condoned and the abatement is set aside. The impugned order cannot be sustained in law. 8. In the result, the petition succeeds and is accordingly allowed. The order of the Board of Revenue dated 13.7.1976 is hereby quashed and the Board of Revenue is directed to decide the appeal on merits as expeditiously as possible. However, there shall be no order as to costs.