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2011 DIGILAW 2113 (RAJ)

Bhikam Singh v. Commissioner, Devsthan, Udaipur

2011-10-10

NARENDRA KUMAR JAIN I, PRASHANT KUMAR AGARWAL

body2011
JUDGMENT 1. - Heard learned counsel for the parties. 2. The appellants have preferred this special appeal challenging impugned order dated 22.12.2010 passed by learned Single Judge, whereby S.B. Civil Writ Petition No. 16530/2010 filed by the petitioners, directed against order dated 08.11.2010 passed by the Commissioner, Devasthan Department, condoning the delay in filing the appeal under Section 20 of the Rajasthan Public Trusts Act, 1959(for short 'the Act OF 1959'), has been dismissed. 3. Respondent No. 3, Mool Chand Sharma filed an appeal before Commissioner, Devasthan Department against order dated 24.11.2009 passed by Assistant Commissioner(II), Devasthan Department, Jaipur along with an application under Section 5 of the Limitation Act for condonation of delay in filing the appeal. The Commissioner vide its order daetd 08.11.2010, while condoning the delay in filing appeal, allowed the appeal, set aside the order of Assistant Commissioner and remanded the matter for fresh decision on merits. Being aggrieved with the order dated 08.11.2010, the petitioners preferred writ petition, which was dismissed vide order dated 22.12.2010. Hence, this intra-Court appeal. 4. The only submission of learned counsel for the appellants is that learned Single Judge committed an illegality in applying the provisions of Section 5 of the Limitation Act on an appeal under Section 20 of the Act of 1959, therefore, impugned order is illegal, which may be set aside. 5. Learned counsel for the respondents defended the impugned order. 6. We have considered the submissions of learned counsel for the parties and examined impugned order passed by learned Single Judge. We have also examined Section 20 of the Act of 1959, which prescribes a provision for filing an appeal within a period of two months before the Commissioner against a finding of the Assistant Commissioner under Section 19. There is no specific provision in Section 20 of the Act of 1959 for condonation of delay in filing the appeal. 7. We have also examined Section 20 of the Act of 1959, which prescribes a provision for filing an appeal within a period of two months before the Commissioner against a finding of the Assistant Commissioner under Section 19. There is no specific provision in Section 20 of the Act of 1959 for condonation of delay in filing the appeal. 7. Sub-section (2) of Section 29 of the Limitation Act, 1963 prescribes that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24(inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. 8. From Sub-section (2) of Section 29 of the Limitation Act, 1963, it is clear that unless there is a specific provision for excluding the provisions of the Limitation Act, 1963 by any special or local law, the provisions of Section 4 to 24(inclusive) of the Limitation Act, 1963 shall apply. Since there is no specific exclusion of the provisions of the Limitation Act, 1963 in the Act of 1959, therefore, we are of the view that learned Single Judge was absolutely right in observing that Commissioner, Devasthan Department committed no illegality in applying the provisions of Section 5 of the Limitation Act, 1963 for the purpose of condonation of delay in filing the appeal. 9. In addition to above, it is also relevant to mention that the questions of limitation and sufficient cause for not filing the appeal in time, are mixed questions of fact and law and the said objection was not raised by the appellants before appellate authority i.e. Commissioner. Learned Single Judge has mentioned that 'reply to the appeal' has not been enclosed along with the writ petition, but it was shown to him for perusal during arguments and there was no objection of this nature urged before the Commissioner, Devasthan Department. 10. Learned Single Judge has mentioned that 'reply to the appeal' has not been enclosed along with the writ petition, but it was shown to him for perusal during arguments and there was no objection of this nature urged before the Commissioner, Devasthan Department. 10. In view of above discussions, we do not find any merit in this special appeal and the same is, accordingly, dismissed in limine.Special appeal dismissed. *******