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2009 DIGILAW 1880 (RAJ)

Panni Bai (Mst. ) v. State of Rajasthan

2009-08-26

K.S.CHAUDHARI, R.C.GANDHI

body2009
JUDGMENT 1. - This appeal has been preferred against the judgment dated 24.7.1986 passed by the learned Single Judge in S.B. Civil Writ Petition No. 987/1986 whereby the writ petition of the petitioner-appellants has been dismissed upholding the orders passed by the Board of Revenue, Ajmer and Revenue Appellate Authority, Kota. 2. A few facts necessary for disposal of the appeal are that Kanhaiya Lal was a khatedar tenant and he inducted Onkar as his sub-tenant. In the Samwat Year 2009 while Onkar was holding the status of sub-tenant over the land bearing Survey Nos. 183 and 186 measuring 8 bigha and 9 bighas and 1 biswa respectively (17 bighas and 1 biswa) of village Kajoliya Tehsil Peepalda District Kota, became mortgagee for a consideration of Rs. 4,000/- and earned the status of mortgagee for a period of 20 years in respect of the land in question and after a period of 20 years his status in the revenue record remained as sub-tenant. 3. The State of Rajasthan promulgated Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (for short the Act"). The khatedars, who were holding the land more than the prescribed unit, were to exercise option to select their retainable unit of land under Section 18 of the Act. The khatedar-tenant Kanhaiya Lal did not select this unit. The Authorised Officer under the Act prepared the scheme and notified it to the concerned persons and final statement of the holdings was published vide order dated 22.7.1976 declaring that Kanhaiya Lal was having in his possession 1175 bighas and 5 biswas of land and his retainable unit is assessed at 67 bighas and 8 biswas of land consequently, he has to surrender to the State land measuring 1107 bighas and 13 biswas, being found in excess of the retainable unit, by the Authorised officer. 4. Against the order dated 22.7.1976, appeal was filed by Kanhaiya Lal and the litigation went up to the Supreme Court. The Apex Court in Civil Appeal No. 4946/1992 remanded the matter back to the Division Bench of this Court vide order dated 23.11.1992. The Division Bench of this Court vide order dated 25.8.2003 remanded the matter back to the Authorised officer for determination of the retainable unit of khatedar-tenant Kanhaiya Lai in terms of the provisions of the Act. Those proceedings are pending before the Authorised officer. 5. The Division Bench of this Court vide order dated 25.8.2003 remanded the matter back to the Authorised officer for determination of the retainable unit of khatedar-tenant Kanhaiya Lai in terms of the provisions of the Act. Those proceedings are pending before the Authorised officer. 5. The khatedar-tenant Kanhaiya Lal, in the meantime, died and his legal heirs were substituted. Onkar, sub-tenant preferred appeal against the order dated 22.7.1976 before the Revenue Appellate Authority, Kota on the ground that neither he was served any notice nor aware of the proceedings before the Authorised officer. lie explained the delay in the memo of the appeal and filed an affidavit also in support of the averments stated in the memo of the appeal. The Revenue Appellate Authority, Kota dismissed the appeal vide order dated 8.11.1978 on two counts that (i) the appellant-Onkar could not make out sufficient cause for condoning the delay, and (ii) no right of the appellant stood affected. 6. In the meantime, sub-tenant Onkar died and his legal heirs preferred a revision petition against the order dated 8.11.1978 before the Board of Revenue for Rajasthan, Ajmer which also came to be dismissed vide order dated 30.9.1985 confirming the order of the Revenue Appellate Authority, Kota. A review petition was preferred against the order dated 30.9.1985 which was also dismissed vide order dated 8.1.1986 by the Board of Revenue, Ajmer. 7. Orders dated 30.9.1985 and 8.1.1986 passed by the Board of Revenue and order dated 8.11.1978 passed by the Revenue Appellate Authority were challenged by the appellants by way of Writ Petition No. 987/1986 which was dismissed by the learned Single Judge on 24.7.1986. 8. This appeal has been preferred against the order of the learned Single judge as well as the orders passed against the appellants, legal heirs of Onkar, by the lower Revenue Courts, on the ground that the learned Single judge and the Courts below have not appreciated the sufficient cause shown by the appellants and also not gone into the substance of merit of the case, particularly Section 12 of the Act. 9. We have heard learned counsel for the parties and perused the record. 10. 9. We have heard learned counsel for the parties and perused the record. 10. Learned counsel for the appellants submitted that the appellants are still in possession of the land as sub-tenant and had no knowledge with regard to the proceedings initiated by the Authorised officer under the Act or passing of the order dated 22.7.1976. The deceased Onkar came to know about passing of the order by the Authorised Officer on 17.8.1977 and challenged the same by way of appeal before the Revenue Appellate Authority, Kota on 19.1.1978. The appellant-Onkar explained the delay stating the aforesaid reasons in memo of the appeal and in support of averments showing sufficient cause, he deposed the same on affidavit. His submission is that the delay should have been reckoned by the Revenue Appellate Authority, Kota from the date of knowledge of the order passed by the Authorised Officer and not from the date of passing of the order. The approach of the appellate Court for dismissing the appeal on delay and latches is not only unjustified but contrary to the law also. The appeal of the appellant-Onkar should have been decided on merits as he, as sub-tenant, was an interested person and possession of the land was with him which is still with the appellants, legal heirs of the deceased-Onkar. 11. Learned counsel for the respondents could not make out that the appellants had the knowledge of the order dated 22.7.1976 prior to 17.8.1977 as claimed by the appellants. The appellate Court has observed that there was delay of one year two months and twenty days which appears to be a wrong approach adopted as the period for delay has to be reckoned from the date of knowledge and not from the date of order passed in the absence of the parties. This legal issue has been settled by the Supreme Court in judgment delivered in case title Madan lal v. State of U.P. and others reported in AIR 1975 Supreme Court 2085 , wherein similar was the proposition on facts and law, holding as under : "9. The Act we are concerned with does not state what would happen if the Forest Settlement officer made an order under Section 11 without notice to the parties and in their absence. The Act we are concerned with does not state what would happen if the Forest Settlement officer made an order under Section 11 without notice to the parties and in their absence. In such a case, if the aggrieved party came to know of the order after the expiry of the time prescribed for presenting an appal from the order, would the remedy be lost for no fault of his? It would be absurd to think so. It is a fundamental principle of justice that a party whose rights are effected by an order must have notice of it. This principle is embodied in Order 20 Rule 1 of the Code of Civil Procedure; though the Forest Settlement Officer adjudicating on the claims under the Act is not a Court, yet the principle which is really a principle of fair play and is applicable to all Tribunals performing judicial or quasi-judicial functions must also apply to him...." 12. The delay has to be counted from 17.8.1977 to 18.1.1978 which comes to 5 months and 3 days. To make out sufficient cause for condonation of delay the appellants have stated that the time was taken in obtaining the copy and the brief was handed over to the learned Advocate who also asked the appellants to get copies of the revenue record which were made available and the appeal was presented without wasting time. The question of delay is mixed question of facts and law. The appellants have tried to make out sufficient cause. The Courts have the power to condone the delay taking into consideration the merits of the case and have to take a view that it should advance the cause of justice. In this case, the appellants are villagers. They did not know what the steps were to be taken. They consulted their Advocate and acted upon his advice. If the delay is not condoned, they will be deprived of 17 bighas of land which is source of their livelihood. 13. Learned counsel for the respondents has submitted that it is mandatory for the appellant to file an application under Section 5 of the Limitation Act seeking condonation of delay. He has not filed such an application and has simply clarified the circumstances and situations for making out sufficient cause in the memo of the appeal before the Appellate Authority which is not sufficient. He has not filed such an application and has simply clarified the circumstances and situations for making out sufficient cause in the memo of the appeal before the Appellate Authority which is not sufficient. In rebuttal learned counsel for the appellants has submitted that Onkar explained sufficient cause which prevented the appellant to file appeal within the statutory period, in the memo of the appeal, and those averments had been supported by an affidavit. His further submission is that if an application seeking condonation of delay is not filed as urged by the learned counsel for the respondents, the Court is not powerless, if the sufficient cause is made out, to condone the delay. In support of his plea he has relied upon the judgments delivered in cases title Miss Nirmala Chaudhary v. Bisheshar Lal reported in AIR 1979 Delhi 26 ; Meghraj v. Jesraj Kasturjee and another reported in AIR 1975 Madras 137 ; Mosmat Rant Kali & Ors. v. Indradeo Choudhaiy & Anr. reported in AIR 1985 Patna 148 . 14. Section 5 of the Limitation Act as framed does not necessarily imply that the Court can exercise the power for condoning the delay only on an application filed by the party. The power to condone the delay can be exercised if the parties seeking to condone the delay satisfy the Court that they have shown sufficient cause which prevented them to file the appeal within the prescribed statutory period and the Court can be satisfied taking into consideration those circumstances. It is not necessary in law that an application must be filed. Of course, as a matter of practice, the parties file an application seeking condonation of delay. The Court is not powerless, if the material is on record to make out sufficient cause for condoning the delay. 15. The Supreme Court has ruled is case title Sital Prasad Saxena v. Union of India reported in (1985) 1 SCC 163 that the technicalities pitched against the litigant should not come in the way to advance the cause of justice. in this case the Supreme Court dealt with a case wherein the appellant died. 15. The Supreme Court has ruled is case title Sital Prasad Saxena v. Union of India reported in (1985) 1 SCC 163 that the technicalities pitched against the litigant should not come in the way to advance the cause of justice. in this case the Supreme Court dealt with a case wherein the appellant died. Application for substitution after condonation of delay and setting aside the abatement was filed after 2 years by the legal representatives and the Apex Court condoned the delay of two years, set aside the abatement and granted the prayer for substitution, directing the High Court to dispose of the appeal on merit. 16. In case title N. Balakrishan v. Krishnamurthy reported in (1998) 7 SCC 123 , the Supreme Court was dealing with delay of 883 days in filing application for setting aside ex-parte decree wherein the trial Court allowed the application having found that sufficient cause has been made out for condonation of delay. The High Court of Madras in revision application under Section 115 of Civil Procedure Code observed that delay in filing application has not been properly explained and upset the order of the trial Court dismissing the application seeking to condone the delay. Dealing with this proposition, the Apex Court set aside the order of the High Court and while doing so observed as under : "8. The appellant's conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences. 9. It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. 9. It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be unreasonable due to want of acceptable explanation whereas in certain other cases delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refuses to condone the delay. In such cases, the superior Court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammelled by the conclusion of the lower Court. 10. The primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. The 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. 11. 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. The law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the 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 each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. During the 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 each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The 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. 12. A Court knows that refusal to condone delay would result foreclosing a suitor 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 v. Kuntal Kumari and State of W.B. v. Administrator, Howrah Municipality . 13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the Court should lean against acceptance of the explanation. While condoning delay, the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quiet a large litigation expenses." 17. While dealing with limitation, the Supreme Court in case title Ram Nath Sao @ Ram Nath Sahu & Ors. v. Gobardhan Sao & Ors., reported in (2002) 3 SCC 195 , observed as under : "12. It must be borne in mind that he is a loser and he too would have incurred quiet a large litigation expenses." 17. While dealing with limitation, the Supreme Court in case title Ram Nath Sao @ Ram Nath Sahu & Ors. v. Gobardhan Sao & Ors., reported in (2002) 3 SCC 195 , observed as under : "12. Thus it becomes plain that the expression "sufficient cause" within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependant upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the Courts should not proceed with he tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. On the other hand, while considering the matter the Courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However, by taking a pedantic and hyper-technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, Courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way." 18. While considering the matter, Courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way." 18. In a recent judgment delivered by the Supreme Court in case title R.B. Ramlingam v. R.B. Bhvaneswari reported in (2009) 2 SCC 689 , the Apex Court was dealing with an application for condonation of delay of 568 days in filing SLP. The delay was caused while exhausting the remedy of review and the Apex Court appreciating the sufficient cause for condonation of delay observed that the test of "sufficient cause" is purely an individualistic test and not objective test. It is discretion of the Court to take into consideration the circumstances for making out sufficient cause and pass discretionary order to advance the cause of justice. The Apex Court in para No. 6 of the judgment held as under : "6. A large number of judgments were cited before us by learned counsel. It is not necessary at this stage to discuss each and every judgment cited before us for the simple reason that Section 5 of the Limitation Act, 1963 does not lay down any standard or objective test. The test of "sufficient cause" is purely an individualistic test. It is not an objective test. Therefore, no two cases can be treated alike. The statute of Limitation has left the concept of "sufficient cause" delightfully undefined, thereby leaving to the Court a well-intentioned discretion to decide the individual cases whether circumstances exist establishing sufficient cause. There are no categories of sufficient cause. The categories of sufficient cause are never exhausted. Each case spells out a unique experience to be dealt with by the Court as such." 19. Noticing the sake of the rights of the appellants, the Courts below should not have taken pedantic and hyper-technical view of the matter as such an approach causes enormous loss and irreparable injury to a party against whom the lis terminates defeating the valuable right to have the decision on merit. We, therefore, are of the view that the approach of the trial Court in rejecting the application for condonation of delay was unjustified. in view of the aforesaid judgments delivered by the Supreme Court, it is a fit case to condone the delay. 20. We, therefore, are of the view that the approach of the trial Court in rejecting the application for condonation of delay was unjustified. in view of the aforesaid judgments delivered by the Supreme Court, it is a fit case to condone the delay. 20. The appellate Court has also recorded the findings that the appeal has no merit as no right of the appellants has been affected. The appellants being sub-tenant, their land has been categorized as encumbered land in terms of proviso to Section 18 of the Act. Such a land has to be selected by the khatedar tenant in his retainable unit. The appellants, therefore, were directly affected and interested persons. The interested person in terms of Section 12 of the Act has to be served the draft scheme prepared by the Authorised officer along with a notice considering and declaring the retainable unit by the khatedar tenant. The trial Court has not considered it, rather ignored this statutory provision of law. To appreciate as to whether the appellants were interested persons in terms of Section 12 of the Act, it is being reproduced for convenience : "12. Preparation and publication of draft statement as regards land in excess of ceiling area.-(1) On the basis of the return furnished under Section 10 and on the basis of the return or the additional particulars furnished under sub-section (1) of Section 11 or on the basis of the information obtained by him under sub-section (2) of Section 11, the Authorised officer shall, after making such enquiry as he deems fit, prepare in such form and containing such particulars as may be prescribed a draft statement in respect of each person holding land in excess of there ceiling area. (2) The draft statement shall be served on the persons concerned and on all other persons who, in the opinion of the Authorised Officer, are interest in the land to which such draft statement relates, together with a notice stating that any objection to the draft statement shall be preferred within thirty days from the date of service of such notice. (3) The Authorised officer shall consider any objection received within the period specified in the notice referred to in sub-section (2) from the person on whom a copy of the draft statement has been served under that sub-section or from any other person interested in the land and shall after giving the object or a reasonable opportunity of being heard, decide the objection by an order in writing." 21. The appellants being sub-tenant and holding the encumbered land in terms of Section 18 of the Act it was mandatory for the Authorised officer under Section 12(2) of the Act to serve the draft statement along with notice upon the concerned persons stating in the notice that if the interested person has any objection to the draft statement, he can file objection within 30 days from the service of the notice in terms of Section 12(2) of the Act. These objections are to be considered by the Authorised officer under Section 12(3) providing reasonable opportunity of being heard to the objector. This has not been done in the present case. Learned counsel for the respondents could not make out that such a notice was ever issued or served upon the appellants or the deceased Onkar. Therefore, the findings of the Appellate Court to the extent that no right of the appellants has been affected and confirmed by the superior Courts up to the learned Single Judge cannot be maintained. On this issue also the findings of the appellate Court and the other Courts who have confirmed the findings of the appellate Court deserved to be set aside. 22. For the aforesaid reasons, we are of the view that the appeal deserves to be allowed which is accordingly allowed. The order dated 22.7.1976 and orders of the Courts up to the learned Single Judge are set aside. The matter is remanded back to the Authorised officer to pass appropriate orders after hearing the parties. No order as to costs.Appeal allowed. *******