Bhaiya Ram v. Deputy Director of Consolidation — 1986 DIGILAW 603 (ALL)

JUDGMENT B. L. Yadav, J. - This petition under Article 226 of the Constitution of India is directed against the order dated. 7-8-1973 passed by the Deputy Director of Consolidation allowing the revision filed by the contesting respondent No. 2 Punnilal. Here the petition was decided on merits by Hon. J. N. Dubey J. by order dated 19-10-1984. But on the restoration application being filed that order was recalled. Consequently this petition has been placed before me for disposal. 2. Heard the learned counsel for the parties, in the instant Case the appeal preferred by Respondent No. 1 was tune-barred but this fact was not mentioned in the order disposing of the appeal rather this was taken as a ground by the present petitioners who were opposite parties in the revision that the appeal was time-barred, hence it could not have been disposed of on merits without condoning the delay. This fact has been mentioned on page 52 of the paper book in the impugned order passed by the Deputy Director of Consolidation. But the Deputy Director of Consolidation has taken a view that it appears that the delay was condoned by implication and thereafter the appeal was decided on merits. The revision was ultimately allowed by the impugned order. 3. The learned counsel for the petitioners urged that as the appeal filed by Respondent No. 2 was time-barred and unless the delay was condoned, it could not have been decided on merits. Reliance was placed on Tirath v. Joint Director of Consolidation & Others, ( 1985 RD 276 ). The learned counsel for the respondents, on the other hand urged that if the appeal was allowed on merits it means that the objection about the appeal being time-barred was ignored and by implication the delay was condoned. The case of Tirath v. Joint Din dor of Consolidation & Others, (supra) was tried to be distinguished. Reliance was further placed on Jainul Abdin v. Deputy Director of Consolidation Others, (1974 Suppl RD 162). Having heard the learned counsel for the parties I am of the opinion that the submissions raised by the learned counsel for the petitioners cannot be said to be without substance. Reliance was further placed on Jainul Abdin v. Deputy Director of Consolidation Others, (1974 Suppl RD 162). Having heard the learned counsel for the parties I am of the opinion that the submissions raised by the learned counsel for the petitioners cannot be said to be without substance. It is a fact that the appeal was time-barred and no specific order condoning the delay was passed before deciding the appeal on merits, in Tirath v. Joint Director of Consolidation & Others, (Supra) a Division Bench of this Court has held that in case the appeal was time-barred and the revision was filed the proper course for the Deputy Director of Consolidation was to direct the Settlement Officer (Consolidation) to decide the appeal after considering the application for condoning the delay and the Deputy Director of Consolidation himself should not have decided the revision on merits. In the instant case the appeal was time-barred and no specific order was passed by the appellate court condoning the delay. It was for the Deputy Director of Consolidation to have directed the appellate court to decide the appeal afresh after deciding the application under Section 5 of the Limitation Act. 4. In Jainulabdin v. Deputy Director of Consolidation & Others, (Supra) relied upon by the learned counsel for the respondents was a case where there was delay in filing the objection before the Consolidation Officer. The parties led evidence before him and the case was decided without passing any order condoning the delay. Thereafter appeal and revision were also decided. But no plea was taken that the objection filed before the Consolidation Officer was time barred and no order condoning the delay was passed. But this plea was taken for the first time in writ petition before this Court. It was held that under the circumstances of the case that as the plea was not raised before the appellate or the revisional court it cannot be permitted to be raised for the first time in writ petition. In other words it was also held that by implication it could be assumed that under the circumstances of the case the delay must have been condoned by the Consolidation Officer even though no specific order was passed to the effect. But in the instant case the facts are entirely different. In other words it was also held that by implication it could be assumed that under the circumstances of the case the delay must have been condoned by the Consolidation Officer even though no specific order was passed to the effect. But in the instant case the facts are entirely different. The objection has been raised by the present petitioners before the Deputy Director of Consolidation in revision as is clear by the narration of facts on page 52 of the paper book. I am accordingly of the view that the case of Jainulabdin v. Deputy Director of Consolidation & Others, (supra) is clearly distinguishable. As the revision has been decided without deciding the plea about the appeal being time-barred and the appellate court did not condone the delay by passing an or Jer on the application under Section 5 of the Limitation Act, I would have ordinarily remanded the case to the Deputy Director of Consolidation but in view of the dictum laid down in Tirath v. Joint Director of Consolidation & Others (supra) it is better that the case may be remanded to the Settlement Officer (Consolidation) to decide the appeal afresh after deciding the application under Section 5 of the Limitation Act for condonation of delay, in the filing of the appeal. 5. In view of what has been said above the impugned orders cannot be sustained and deserve to be quashed. 6. In the result, the petition succeeds and is accordingly allowed. The impugned order dated 27-8-1986 passed by the Deputy Director of Consolidation and the order dated 19-7-1971 are hereby quashed. The case is remanded back to the Settlement Officer (Consolidation) to decide the appeal afresh in accordance with law and in the light of the observations made above. However, under the circumstances of the case there shall be no order as to costs.