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Madhya Pradesh High Court · body

2013 DIGILAW 189 (MP)

Anil Kumar Dikshit v. State of M. P.

2013-02-12

U.C.Maheshwari

body2013
ORDER(ORAL) 1. The petitioner has filed this petition under Article 226 of the Constitution of India, (the same appears to be under Article 227 of the Constitution of India) being aggrieved by the order dated 12.2.2013 (Annexure-P-7) passed by the Board of Revenue in Second Appeal No. A 3027-I/2012, whereby, his second appeal filed under section 44(2) of Madhya Pradesh Land Revenue Code (in short ‘the Code’) against the order dated 30.11.2010 (Annexure-P-4) passed by the Commissioner, Jabalpur Division in case No. 89/A-73/2009-10, without examining the merits of the matter, only by rejecting the application under section 5 of the Limitation Act, filed for condoning the delay in filing such appeal, has been dismissed. 2. Shri Ramashankar Yadav, learned appearing counsel for the petitioner after taking me through the papers placed on the record by referring the copy of the order dated 6.8.2012 (Annexure-P-5) passed by this Court in writ petition No.4345/11(0) said that, subsequent to passing the order (Annexure-P-4) by the Commissioner, Jabalpur Division, Jabalpur, instead to file the second appeal, under the bona fide advise, he has filed the abovementioned writ petition No.4345/11(0) on dated 7.3.2011. In view of availability of alternate forum of appeal under the Code the same was disposed of by this Court vide order dated 6.8.2012 by extending him a liberty to assail the order of Commissioner (Annexure-P-4) availing the remedy provided under the Code with a further observation that if such appeal or revision is filed within four weeks along with a copy of the aforesaid order of the writ petition, then the authority concerned to hear and decide the same on merits and shall not dismiss it only on the ground of limitation. In continuation he said that, subsequent to order Annexure-P-5, the petitioner herein filed the impugned second appeal before the Board of Revenue along with the application under section 5 of the Limitation Act for condoning the delay in filing the appeal. In such application the averments regarding period spent in prosecuting of the aforesaid writ petition and it’s order was stated, but in the lack of proper advice on the cause title of the application section 14 of the Limitation Act was not stated. In such application the averments regarding period spent in prosecuting of the aforesaid writ petition and it’s order was stated, but in the lack of proper advice on the cause title of the application section 14 of the Limitation Act was not stated. He further said that as per section 14 of the Limitation Act, the party is entitled to get exclusion of the period of limitation spent by him in prosecuting the proceedings before the wrong forum under the bonafide advise, but in the lack of mentioning the section 14 of the Limitation Act, on cause title in such application such provision was not taken into consideration by the Board of Revenue and by holding that no sufficient cause is made out to condone the alleged delay, such application was dismissed and pursuant to that, without examining the merits of the matter, the appeal was also dismissed. With these submissions, prayed to set aside the impugned order (Annexure-P-7) and allowing his application filed under section 5 of the Limitation Act, by admitting and allowing this petition and pursuant to that, matter be remitted back to the Board of Revenue with a direction to decide the same afresh on merits. 3. On the otherhand, Shri Swapnil Ganguly, learned Panel Lawyer fairly submitted that the matter was not considered by the Board of Revenue keeping in view the order of this Court Annexure-P-5 and the provision of section 14 of the Limitation Act and prayed to pass appropriate order in this petition. 4. Having heard the counsel, keeping in view their arguments, I have carefully gone through the papers placed on the record. It is apparent that subsequent to passing the order Anenxure-P-4, by the Commissioner Jabalpur, on 30.11.2010 after obtaining the copy of the same within limitation, the petitioner has filed the aforesaid writ petition No. 4545/11, which was disposed of by this Court vide order (Annexure-P-5) by extending the liberty to the petitioner to avail the remedy by filing the appropriate proceedings under the provision of the Code with direction on filing the same, the concerning authority shall decide the same on merits and not dismiss as barred by time on question of limitation. 5. 5. It is apparent that pursuant to order of this Court Annexure-P-5, the petitioner filed the impugned second appeal under section 44 (2) of the Code along with the application under section 5 of the Limitation Act on dated 27.8.2012 with a prayer to condone the alleged delay and hear the appeal on merits, but without considering the observation and spirit of the order of this Court Annexure-P-5 and the provision of section 14 of the Limitation Act, the petitioner’s application of section 5 of the Limitation Act was dismissed and pursuant to that, without examining the merits of the matter the appeal was dismissed as barred by limitation. 6. It is settled proposition of law that under bonafide advise if the party has filed any proceedings before the forum which is not competent to entertain, hear and adjudicate the same and on coming to know about such position, if such matter is withdrawn from such forum and filed before the appropriate competent forum, then the period spent by such party in prosecuting the proceedings before the wrong forum deserves to be excluded to count the period of limitation in filing the proceedings before the competent forum provided under the law. In such premises, on examining the case at hand, it is apparent that subsequent to order of Commissioner (Annexure-P-4) the petitioner has spent the period from 7.3.2011 to 6.8.2012 in prosecuting the aforesaid writ petition before this Court, not the correct forum and thereafter, on disposing on the writ petition by extending the liberty to avail the remedy under the Code within four weeks, the petitioner under such liberty filed impugned appeal with the aforesaid application. So, in such premises, the time spent by the petitioner before this Court in writ petition should have been excluded by the Board of Revenue for entertaining the appeal and pursuant to it, on excluding the aforesaid period and the period spent in obtaining the certified copy of the order of Commissioner, the impugned appeal was filed very well within limitation. So in such premises, the Board of Revenue ought to have allowed the impugned application of section 5 of the Limitation Act and condone the alleged delay in filing the appeal. 7. So in such premises, the Board of Revenue ought to have allowed the impugned application of section 5 of the Limitation Act and condone the alleged delay in filing the appeal. 7. In view of the aforesaid discussions, the impugned order of the Board of Revenue (Annexure-P-7), being perverse is not sustainable consequently, by allowing this petition the same is hereby set aside and the application of the petitioner filed under section 5 of the Limitation Act is allowed and the entire delay in filing the second appeal before the Board of Revenue is hereby condoned. Pursuant to it, the case is remitted back to the Board of Revenue with a direction to decide the aforesaid second appeal of the petitioner on merits after extending the opportunity of hearing to the parties on some early date probably, on or before 30.11.2013. There shall be no order as to the costs.