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2009 DIGILAW 576 (JK)

Vinod Kumar v. Addl. Dy. Commissioner

2009-11-20

A.K.Shan

body2009
1. In this revision petition order dated 15.12.2007 passed by Additional Deputy Commissioner with powers of Commissioner Agrarian Reforms, Rajouri (here-in-after the Commissioner) in an appeal filed before him by respondents 2 to 5 against the petitioner has been allowed which was filed against mutation No: 144 under Section 3-A of the Agrarian Reforms Act (here-in-after the Act) in favor of the father of the petitioner. 2. The important question of law raised in this case is the disposal of time barred appeal without deciding the application for condonation of delay. 3. The facts of the case as gathered from the record are that land measuring 1 kanal 4 Marlas under khasra No: 286 is an evacuee property. The land was in possession of the father of the petitioner who had migrated from Tehsil Kotli of POK on partition of the Country. 4. On 10.11.1989 Tehsildar Rajouri attested the mutation No:144 under Section 3-A of the Act in favor of one Bhagat Ram s/o Sham Dev and father of the petitioner who were in possession of the land according to him. This mutation was challenged by private respondents before the Commissioner by filing an appeal on 24.4.2006. As appeal was time barred so an application for condonation of delay was also filed. The Commissioner accepted the appeal after discussing the merits of the case on 15.12.2007. However, he did not decide the fate of the application for condonation of delay. His order has been challenged before this Tribunal on various grounds including the important question of law of not deciding the condonation application before entering upon the merits of the case. As this question of law goes to the roots of the matter so I will like to decide this question first of all. 5. By virtue of Rule 48 of the Agrarian Reforms Rules 1977,(here-in- after the Rules) provisions of Code of Civil Procedure relating to appeal from the original decree i.e. Order 41 Rule 3-A , subject to Rule 52 have been made applicable mutates mutandis to all appeals under the Ag. Ref. Act. 6. As per Rule 3-A of Order 41 CPC application for condonation of delay shall be decided by the appellate court before dealing with the merits of the case i.e. main appeal. This rule is mandatory in nature. Ref. Act. 6. As per Rule 3-A of Order 41 CPC application for condonation of delay shall be decided by the appellate court before dealing with the merits of the case i.e. main appeal. This rule is mandatory in nature. As such time barred appeal cannot be decided on merit unless the application for condonation of delay is decided first. 7. As per Rule 52 if the appellate court dismisses the appeal on ground of limitation it can still submit the case to this Tribunal with the report why the order appeal needs be revised and what the revised under may be. 8. Apparently this Rule is not attracted in the present case because the appellate court has not decided the question of limitation. 9. From the perusal of the record submitted by the appellate court, it transpires that the appellant had filed an application for condonation of delay which facts was in the knowledge of the appellate court but surprisingly the appellate court has not made any reference to the said application in its final order. As the appellate court has violated the mandate of Order 41 Rule 3-A CPC by deciding the appeal on merit without first deciding the application for condonation of delay so the order patently is illegal and not sustainable. 10. As the impugned order has been passed without adopting the due course of law referred here-in-above, which has resulted in passing an illegal order so on this very ground this revision petition is required to be allowed, without touching the merits or other related question raised and put across in the revision petition. 11. Accordingly the order impugned is set aside and matter is remanded back to court below for deciding the application for condonation of delay and passing of appropriate order accordingly. The appellate court shall summon the petitioners. Respondents through their counsel are informed to appear before appellate court on 31.12.2009. 12. Record of the court below be sent back and file of this Tribunal be consigned to record after due compilation.