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1987 DIGILAW 182 (ALL)

Vakil Ahmad v. District Judge, Varanasi

1987-02-17

V.K.KHANNA

body1987
JUDGMENT V.K. Khanna, J. - This writ petition has been filed against the decision of the District Judge. Varanasi dated 19-12-1986 dismissing the application of the petitioner under Section 5 of the Limitation Act. 2. At the very out set it may be mentioned that at the admission stage the contesting respondents were served and the parties have exchanged counter and rejoinder affidavits. The writ petition is, thus, being decided finally in accordance with the Rules of the Court. 3. The brief facts for the purposes of deciding the present writ petition are that the respondent-landlords filed an application under Section 21 (1) (b) of the U.P. Act No. XIII of 1972 (hereinafter referred to as the Act). The aforesaid application was allowed by the Prescribed. Authority on 10-10-1984. Feeling aggrieved, the petitioner preferred a revision which was duly admitted and the court also granted a stay order. However when the revision came up forbearing the same was dismissed on 27-2-1985 as according to the court the revision was not maintainable as a regular appeal lay under Section 22 of the Act. After the disposal of the revision the petitioner filed an appeal accompanied by an application under Section 5 of the Limitation Act. It is this application which has been rejected under the impugned order on the ground that the cause shown was not sufficient. 4. The learned Counsel for the petitioner has urged in this writ petition that the petitioner filed the revision under the bona fide advice of his client. It has also been urged that the revision was in fact admitted by the court and the stay order was also granted. The learned Counsel for the petitioner argued that the petitioner should not be penalised because of the bona fide advice which he received from his counsel. 5. The learned Counsel for the respondents has however urged that clearly an appeal lay under Section 22 of the Act and filing of the revision was not bona fide and, thus, the court below was right in rejecting the application under Section 5 of the Limitation Act. 6. After hearing the arguments raised by the learned Counsel for the parties and looking to the entire facts and circumstances, I am of the opinion that this is a fit case in which the delay in filing the appeal should have been condoned. 6. After hearing the arguments raised by the learned Counsel for the parties and looking to the entire facts and circumstances, I am of the opinion that this is a fit case in which the delay in filing the appeal should have been condoned. By no stretch of imagination it can be said that the filing of the revision by the petitioner placed him in a better situation and the version put forward by the petitioner that the revision was filed under the bona fide advice of his counsel was liable to be believed. As has been observed above it is interesting to note that even the judicial officer before whom the revision was presented admitted the same and even granted a stay order to the petitioner and that is why the revision remained pending for a few years and it was only at the time of final hearing that the court came to the conclusion that the revision was not maintainable as a statutory appeal was provided of the order under Section 22 of the Act. In these circumstances when the petitioner had received bona fide advice from his counsel and even the judicial officer who had entertained the revision had not cared to see that the revision was not maintainable. I am of the opinion that the plea taken by the petitioner was liable to be believed and the application under Section 5 of the Limitation Act should be allowed. 7. The learned Counsel appearing for the contesting respondents has however urged that the application under Section 21 (1) (b) has been filed in the year 1982 and that the application under Section 21 (1) (b) is pending since a long time and the same may now be directed to be disposed of at an early date. 8. For the reasons stated above the present writ petition is allowed and the order of the District Judge, Varanasi dated 19-12-1986 is quashed and the application under Section 5 of the Limitation Act is allowed. The learned Counsel for the parties have taken notice of the fact that they will appear before the District Judge, Varanasi along with certified copies of this order on 27-2-1987 and the District Judge or the competent court shall dispose of the appeal within a period of two months from the date of filing of the certified copies of his order before him. 9. 9. A certified copy of this order shall be made available to the learned Counsel for the parties within three days on payment of usual charges.