Research › Search › Judgment

Uttarakhand High Court · body

2005 DIGILAW 444 (UTT)

Budh Singh v. Additional Collector, Haridwar

2005-10-18

RAJESH TANDON

body2005
Judgment – Heard Shri Sharad Sharma, learned counsel for the petitioner, learned C.S.C. and Sri Nandan Arya, learned counsel for the respondents. 2.By the present writ petition the petitioner has prayed for a writ of certiorari quashing the orders dated 31-03-1993 and 29-05-1989 passed by the respondents Nos. 1 and 2. 3. Briefly stated the facts of the case are that notice in the form of Akar Patra 49-Ka was issued in the month of June, 1987 stating therein that the petitioner is in possession of the land since 1394 fasli. Notice was issued by the Tehsildar alleging about the unauthorized occupation of the petitioner over the land of Khasra No .. 103 area 1-1-0 and Khasra No. 104 area 0.10.10 by planting Mango trees of village Habibpur Niwada, Pargana Bhagwanpur, tehsil Roorkee, district Haridwar. On the basis of the aforesaid notice issued against the petitioner a case No. 131 of 1987 Gaon Sabha Habibpur Niwada versus Budh under Section 122-B of the U.P. Zamindari Abolition & land Reforms Act was started in the court of Tehsildar/Assistant Collector, Roorkee, district Hardwar. 4. The petitioner filed his objection stating therein that for the last 40 years there is a grove of the petitioner and the same continued before the Zamindari Abolition & land Reforms Act came into force. The petitioner was also examined by the lower court regarding his occupation for the last 40 years over the land in dispute. On 29th May, 1989 the Tehsildar has passed the order directing the eviction of the petitioner. Aggrieved by the said .order the petitioner has preferred a revision before the Collector, district Hardwar on 15-01-1992. While filing the revision, the petitioner has also filed an application for condonation of delay on the ground that he was not aware about the order passed in the year 1989 and he came to know when the Amin went on the spot. The revisional court has passed the order refusing to condone the delay. However, after deciding the question of limitation he proceeded to hear the case on merits. 5. The revisional court has passed the order refusing to condone the delay. However, after deciding the question of limitation he proceeded to hear the case on merits. 5. The grievances of the petitioner are two fold; (1) Once the reivisional court proceeded to decide the case on the question of limitation he should not have proceeded to decide the case on merits by observing that the revision was barred by time; (2) The revisional Court has not applied his mind while considering the application for condonation of delay in filing the revision. FINDING ON POINT NO. 1. 6. So far as the first question is concerned, the revisional court has not given the benefit of the delay in filing the revision and has observed that no ground is made out for condonation of delay in as much as the petitioner has not explained the cause of each days delay. After recording the aforesaid findings the revisional court proceeded to decide the case on merits. 7. I am in support of the judgment of the Apex Court reported in 1998 Allahabad Civil Journal page 1079 (Supreme Court) Ram Kali Devi Versus Manager, Punjab National Bank Shamshabad and others. The Apex Court has observed as under :- "The District Judge dismissed the appeal on the ground of limitation. It appears that the High Court has considered the case on merits. It is contended on behalf of the learned counsel for the respondent that the High Court has in fact condoned the delay in filing the appeal. The High Court has given no reason for condoning the delay in filing the appeal except a reference to the merits of the case. The merits of the case cannot be looked at without condoning the delay. We remand the case back to the High Court. The order of the High Court is set aside. The appeal is allowed. The matter is remanded back to the High Court to look into this matter and give a final judgment on all points including the point of limitation. There will be no order as to costs." 8. In view of the aforesaid Authority of the Apex Court I have no hesitation to hold that the revisional Court while deciding the application for condonation of delay should not have proceeded to decide the revision itself, once the revision was treated to be barred by time. There will be no order as to costs." 8. In view of the aforesaid Authority of the Apex Court I have no hesitation to hold that the revisional Court while deciding the application for condonation of delay should not have proceeded to decide the revision itself, once the revision was treated to be barred by time. I, therefore, decide first point in favour of the petitioner. FINDING ON POINT NO.2. 9. So far as the second point is concerned, the petitioner has explained the delay but the revisional court was swayed by this fact that he has not explained the each day's delay. In paragraph 11 of the grounds of revision he has stated as under :- 10. It is settled law that there should have been a liberal approach on the question of limitation and there should be a justice oriented approach while hearing the revision or the appeal on the question of delay. 11. The need of society is that there should be justice oriented approach and the appeal should not be rejected only on the ground of technicalities. The Apex Court has held in (2001) 8 SCC 151, M.S. Grewal Vs Deep Chand Sood as under : "Law Courts will lose their efficacy if they cannot possibly respond to the need of the society-technicalities there might be many but the justice oriented approach ought not to be thwarted on the basis of such technicality since technicality cannot and ought not to outweigh the course of justice." 12. The Apex Court in the case G.P. Srivastava Vs. R.K. Raizada, (2000) 3 SCC 54, has held as under:- The words "was prevented by any sufficient cause from appearing" must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order 9 rule 13 CPC has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each cause." 13. In N. Balakrishnan Vs Krishnamurthy reported in 1998 Supreme Court Full Bench Rent Cases page 427 the Apex Court has held that the decision should have been on the merits instead of entering into the technicalities with regard to the limitation. In N. Balakrishnan Vs Krishnamurthy reported in 1998 Supreme Court Full Bench Rent Cases page 427 the Apex Court has held that the decision should have been on the merits instead of entering into the technicalities with regard to the limitation. The Observations are quoted below :- "The reason for such a different stance is thua : The primary function of a court Is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae "up sit finis litium (it is for the general welfare that a period be put" to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. A Court knows that refusal to condone delay would result in foreclosing a suit or from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari, AIR 1969 SC 575 and State of West Bengal Vs. The Administrator, Dhowrah Municipality, AIR 1972 SC 749." 14. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari, AIR 1969 SC 575 and State of West Bengal Vs. The Administrator, Dhowrah Municipality, AIR 1972 SC 749." 14. The words 'sufficient cause' has also been explained in A.I.R. 1987 Supreme Court page 1353 Collector, Land Acquisition, Anantnag and another Vs Mst. Katiji and others by observing that a litigant does not stand to benefit by lodging an appeal late. The Apex Court has observed as under :"Ordinarily a litigant does not stand to benefit by lodging an appeal late. Refusing to condoned delay can result in a meritorious matter being thrown out at the threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. Every day's delay must be explained does not mean that pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the State which was seeking condonation and not a private' party was altogether irrelevant. The doctrine of equality before law demands that all litigants, in duding the State as a litigant, are accorded the same treatment and the law is administered in an evenhanded manner. There is no warrant for according a stepmotherly treatment when the State is the applicant praying for condonation of delay. The doctrine of equality before law demands that all litigants, in duding the State as a litigant, are accorded the same treatment and the law is administered in an evenhanded manner. There is no warrant for according a stepmotherly treatment when the State is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology inbued with the note-making, file pushing, and passing on the buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant non grata status. The Courts therefore have to informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause.' So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even-handed justice on merits in preference to the approach which scuttles a decision on merits." 15. The impleadment application has been filed by the person in whose favour the allotment has been made. However, since the matter is remanded to the revisional court, therefore, any allotment made by the S.D.M. concerned the same shall be subject to the final result of the proceedings under section 122-6 of U.P.' Zamindari Abolition & Land Reforms Act and, therefore, the parties shall maintain status quo in the meantime. 16. In view of the aforesaid, the revisional court is directed to hear the revision on merits. The order passed by the revisional court deserves to be set aside. The matter is remanded back to the revisional court for deciding the revision afresh in the light of the observations made above. 17. A writ of certiorari is issued quashing the order dated 29-05-1989 passed by the Tehsildar, Roorkee and order dated 31-03-1993 passed by the Collector, Hardwar, respondent nos. 2 and 3 respectively. The writ petition is sent back to the revisional court for deciding the case afresh on merits. 18. The writ petition is allowed. No order as to costs.