Research › Search › Judgment

Uttarakhand High Court · body

2008 DIGILAW 450 (UTT)

KHADOYOT CHANDRA SAH v. DISTRICT JUDGE, NAINITAL

2008-10-01

V.K.GUPTA

body2008
JUDGMENT A release application was filed by the petitioner herein against respondent no. 4 Harendra Singh Bisht U/s 21(1)(a) of the Uttar Pradesh Urban Buildings (Regulating of Letting Rent and Eviction) Act, 1972 (U.P. Act no. XIII of 1972) for his eviction from the premises in question on the grounds contained in the release application. In the release application, respondent no. 4 was sole defendant. In the release application one of the grounds was that respondent no. 4 had sublet the property in question or a part of it to respondent no. 3 herein Sri Jeet Singh. 2. Vide judgment dated 03.07.2002, the release application was allowed by the Prescribed Authority in which it was, inter alia, held that indeed respondent no. 4 had sublet a portion of the property in question to respondent no. 3. Eviction accordingly was ordered vide the aforesaid judgment. Even though respondent no. 3 herein was not a party in the aforesaid release application, without applying for or seeking any leave from the appellate Court, respondent no. 3 filed an appeal U/s 22 of the aforesaid 1972 Act. This appeal was filed on 04.03.2003 even though the judgment by the Prescribed Authority allowing the release application was passed on 03.07.2002. 3. U/s 22 of 1972 Act, thirty days limitation has been prescribed for preferring an appeal and the limitation starts running from the date of the order appealed against. For ready reference, Section 22 is reproduced hereunder, which reads thus : “22. Appeal – Any person aggrieved by an order under Section 21 or Section 24 may within thirty days from the date of the order prefer an appeal against it to the District judge, and in other respect, the provisions of (Section 10) shall mutatis mutandis apply in relation to such appeal.” 4. It is the admitted case of respondent no. 3 that the appeal was not accompanied by any application for condonation of delay in terms of Section 5 of the Limitation Act. Only in para 18 of the memo of appeal, respondent no. 3 averred that he came to know about the passing of the judgment dated 03.07.2002 on 03.03.2003. Treating his appeal to be within time, he did not make any prayer in the memo of appeal for condonation of delay in filing the appeal. The petitioner, being respondent no. Only in para 18 of the memo of appeal, respondent no. 3 averred that he came to know about the passing of the judgment dated 03.07.2002 on 03.03.2003. Treating his appeal to be within time, he did not make any prayer in the memo of appeal for condonation of delay in filing the appeal. The petitioner, being respondent no. 2 in the aforesaid appeal, filed an application before the learned appellate Court for dismissing the appeal as time-barred, but the learned District Judge rejected that application vide his order dated 27.11.2004. 5. I have perused the order dated 27.11.2004 and find that even though the learned District Judge made a clear observation in the course of the said order that the appeal was not accompanied by any application for Condonation of Delay, yet he rejected the petitioner’s application for dismissal of the appeal and, what I could gather from the reading of the order dated 27.11.2004, is that the learned District Judge found himself to be of the opinion that the question of limitation was a question of fact which would be gone into at a subsequent stage of the proceedings of the appeal. 6. After hearing the detailed arguments of the learned counsel for the parties, I find myself in total disagreement with the approach adopted by the learned District Judge. There is no doubt whatsoever that the appeal, as filed, was beyond limitation. As per clear and unambiguous language employed in section 22 (supra) the period of limitation started running from 3.7.2002, the date of the impugned judgment. The appeal was filed in March, 2003 i.e. almost after nine months from the date of judgment whereas the period of limitation prescribed is thirty days. If the appellant-respondent no. 3 thought that he had sufficient grounds and reasons in his favour warranting condonation of delay, the appeal ought to have been accompanied by an application U/s 5 of the Limitation Act seeking condonation of delay for the reasons and grounds which would have been spelt out in the said application. Neither any such application was filed nor was a prayer made in the memo of appeal also requesting the appellate Court to condone the delay in filing the appeal. Neither any such application was filed nor was a prayer made in the memo of appeal also requesting the appellate Court to condone the delay in filing the appeal. Whenever a time-barred appeal is filed, it can be received and entertained only if it is accompanied by an application seeking condonation of delay in filing the appeal either U/s 5 of the Limitation Act or, if the Limitation Act is not applicable, under the relevant provisions of the concerned statute. Since in the present case, the Limitation Act is applicable, there being no application U/s 5 of the Limitation Act, the time-barred appeal was not maintainable. 7. I am fortified in my aforesaid view by the ratio contained in a judgment of the Supreme Court in the case of Ragho Singh Vs. Mohan Singh and others reported in (2001) 9 SCC 717, wherein dealing with the aforesaid question, their Lordships of the Supreme Court held as under : ”6. We have heard learned counsel for the parties. Since it is not disputed that the appeal filed before the Additional Collector was beyond time by 10 days and an application under Section 5 of the Limitation Act was not filed for condonation of delay, there was no jurisdiction in the Additional Collector to allow that appeal. The appeal was liable to be dismissed on the ground of limitation. The Board of Revenue before which the question of limitation was agitated was of the view that though an application for condonation of delay was not filed, the delay shall be deemed to have been condoned. This is patently erroneous. In this situation, the High Court was right in setting aside the judgment of the Additional Collector as also of the Board of Revenue. We find no infirmity in the impugned judgment. The appeal is dismissed. No costs.” 8. In my opinion, the learned District Judge fell in grave error in rejecting the application for the petitioner. The appeal being liable to be dismissed on the ground of being barred by limitation ought to have been dismissed by the learned District Judge. 9. For the aforesaid reasons, this petition is allowed. The order dated 27.11.2004 passed by the learned District Judge disallowing the application of the petitioner is set aside. The appeal filed by respondent no. 3 is held to be not maintainable. 9. For the aforesaid reasons, this petition is allowed. The order dated 27.11.2004 passed by the learned District Judge disallowing the application of the petitioner is set aside. The appeal filed by respondent no. 3 is held to be not maintainable. Accordingly, proceedings in the appeal are hereby quashed and set aside with all the consequences.