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2014 DIGILAW 96 (ALL)

Pyare Lal v. State of U. P.

2014-01-09

RAN VIJAI SINGH

body2014
JUDGMENT Ran Vijai Singh, J. 1. Heard Sri Sunil Kumar Mishra, holding brief of Sri Prakash Dwivedi, learned Counsel for the petitioner, Sri Amol Ranjan, holding brief of Sri M.N. Singh, learned Counsel for respondent Nos. 6 to 9, learned Standing Counsel appearing for the State-respondents and learned Counsel for the Gaon Sabha. By means of this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the order dated 9.4.2008 passed by the Board of Revenue, U.P. at Allahabad in revision No. 33 of 2008-09, order dated 6.2.2008 passed by the Commissioner, Vindhyachal Division, Mirzapur in appeal No. 14 of 2007 and order dated 16.1.2007 passed by the Sub Divisional Officer, Chunar, Mirzapur in suit No. 4 of 2000. 2. Vide order dated 16.1.2007, the Sub Divisional Officer, Chunar while recalling the judgment and decree dated 11.2.2005 dismissing the suit of respondent Nos. 6 to 8 decreed the suit itself. Aggrieved by this judgment and decree, the present petitioner filed appeal No. 14 of 2007 (Pyare Lal v. Payre and another), which was dismissed as barred by time. Aggrieved by the aforesaid judgment, the present petitioner filed revision No. 33 of 2008 before the Board of Revenue. The revision has also been dismissed by the following order: Heard Ld. Counsel for the revisionist as well as caveator and gone through the order of the learned Commissioner, Mirzapur Division, Mirzapur. It has been observed that the Ld. Commissioner has specifically rejected the application under section 5 of Limitation Act and has given ample reasons for rejecting the same and therefore, this revision petition, being not fit for admission, is hereby dismissed as such in limine. 3. While assailing these orders, learned Counsel for the petitioner contends that the Appellate Court as well as the Revisional Court have erred in rejecting the petitioner's application for condonation of delay and dismissing the appeal as barred by time and the revision as well. In his submissions, the order dated 16.1.2007 was passed ex parte as against the petitioner, therefore, the petitioner was unaware of the judgment and decree dated 16.1.2007 and when he came to know about the same, he filed the appeal. By that time, the appeal had become barred by time by almost seven months. In his submissions, the order dated 16.1.2007 was passed ex parte as against the petitioner, therefore, the petitioner was unaware of the judgment and decree dated 16.1.2007 and when he came to know about the same, he filed the appeal. By that time, the appeal had become barred by time by almost seven months. In the application for condonation of delay, it is stated that when the petitioner came to know about the order dated 16.1,2007, he obtained a certified copy of the order and handed over the paper to the Counsel. The Counsel has advised him to obtain the copy of the decree also. Thereafter, application was given to obtain a decree, which was obtained on 10.8.2007. On 11th & 12th August, 2007, the Court was closed, therefore, the petitioner went on 13.8.2007 to contact his Counsel and there he was informed that the Counsel is out of station and he will come on 15.8.2007. It is thereafter, the appeal was filed on 16.8.2007. 4. The appellate Court took the view that in the application for condonation of delay, the date of knowledge of the impugned judgment was not disclosed, therefore, the explanation to condone the delay was insufficient. 5. It is contended by the learned Counsel for the petitioner that the suit was decreed ex parte in the absence of the petitioner treating the service as sufficient on the basis of publication of notice in newspaper known as "Sanmarg". In his submission, the newspaper "Sanmarg" is not a paper of wide circulation. It is also contended that the petitioner is almost illiterate person and can make only his initials. He belongs to a village and is also unaware of the legal implications and legal requirement. In the submission of learned Counsel for the petitioner, both the Courts below have erred in rejecting the application. 6. Refuting the submissions of learned Counsel for the petitioner, learned Counsel for the respondents Sri Amol Ranjan has contended that the appellate Court has rightly rejected the petitioner's application for the simple reason that the petitioner has not disclosed the date of knowledge of the impugned judgment. In his submissions, even if he was an illiterate person, he should have stated when he came to know about the judgment dated 16.1.2007. In his submissions, even if he was an illiterate person, he should have stated when he came to know about the judgment dated 16.1.2007. He has further contended that the delay had not been property explained, therefore, the appellate Court had rightly rejected his application and the revisional Court too rightly refused to interfere in the impugned order in the revision. 7. I have heard learned Counsel for the parties and perused the records. 8. It is not in dispute that the suit was filed by the other side under section 229B of the U.P. Zamindari Abolition and Land Reforms Act, 1950. The said suit was dismissed by the Sub Divisional Officer vide order dated 11.2.2005. Seeking recall of the aforesaid judgment and decree, an application was filed by the respondents, in which, it appears, notices were issued, but when the service was not effected personally, it was served through publication in the newspaper. The contention of the learned Counsel for the petitioner is that the petitioner did not notice the publication of the notice and that is why, he could not participate in the proceeding and the Trial Court not only recalled the earlier order dated 11.2.2005, but decreed the suit. In his submissions a serious prejudice has been caused to the petitioner. Had the petitioner been noticed and was made aware of the judgment and decree, which was operating against him, there was no occasion for him not to file the appeal within time. 9. I find substance in the submission of learned Counsel for the petitioner. It was a case where the suit was decreed against the petitioner and had the petitioner been noticed and made aware of the judgment and decree, there was no occasion for him to sleep over his valuable right. He was not going to gain anything by not filing the appeal within time. 10. The Courts below have rejected the delay condonation application on the ground that there was no sufficient cause disclosed to condone the delay. The expression "sufficient cause" has been explained by the Apex Court time and again. In State of Bihar and others v. Kameshwar Singh and others, JT 2000 (5) SC 389 the Apex Court as observed as under Para 12. The expression "sufficient cause" has been explained by the Apex Court time and again. In State of Bihar and others v. Kameshwar Singh and others, JT 2000 (5) SC 389 the Apex Court as observed as under Para 12. ...The expression 'sufficient cause' should, therefore, be considered with pragmatism in justice-oriented process approach rather than the technical detention of sufficient case for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of pragmatic approach in justice-oriented process. The Court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. 11. Further, the Apex Court in Perumon Bhagvathy Devaswam v. Bhargavi Amma, (2008) 8 SCC 321 has observed as under: The words sufficient cause for not making the application within the period of limitation' should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words 'sufficient cause' in section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant. 12. The Apex Court as well as this Court, time and again, has held that while considering an application for condonation of delay, the Court must take a liberal view, particularly, in the cases where the litigants are rustic villagers, as they are not so skilled and almost unaware of the legal implications as they depend upon the legal advise of the Counsel. The purpose of fixing limitation to approach the Court is not meant to take away the right of appeal (N. Balakrishnan v. M. Krishnamurthy), 1998 (7) SCC 123 The effort should be made by the Courts to impart substantial justice to the parties and not to scuttle the process of justice on technicalities. In view of the law laid down by the Hon'ble Apex Court in State of Haryana v. Chandramani, AIR 1996 SC 1623 where in the Supreme Court considered large number of its earlier judgments including Binod Bihari Singh v. Union of India, (1993) 1 SCC 572 M/s. Shakambari & Co. In view of the law laid down by the Hon'ble Apex Court in State of Haryana v. Chandramani, AIR 1996 SC 1623 where in the Supreme Court considered large number of its earlier judgments including Binod Bihari Singh v. Union of India, (1993) 1 SCC 572 M/s. Shakambari & Co. v. Union of India, (1993) Supp. (1) SCC 487 Warlu v. Gangotribai, (1995) Supp. (1) SCC 37 Ramlal Motilal & Chhotelal v. Rewa Coalfields Ltd., AIR 1962 SC 361 Concord of India Insurance Co. Ltd. v. Nirmala Devi AIR 1979 SC 1666 Lala Mata Din v. A. Narayanan, AIR 1970 SC 1953 has held that expression "each day's delay must be explained", does not mean that a pedantic approach should be made and it must be applied in a rational common sense pragmatic manner. In State of U.P. v. Mohd. Nooh, AIR 1958 SC 86 the Apex Court has observed that justice should be administered in our Courts in common sense, liberal way and be broad based on human values rather than on narrow and restricted considerations hedged round with hair splitting technicalities. 13. Thus, even if day-to-day delay may not have been explained, but if cause shown is sufficient and invoke the conscious of the Court to hear the matter on merit, the delay should not come in way. 14. The Apex Court in Jeet Narain and another v. Govind Prasad and others, 2010 (3) ADJ SC 470 has condoned the delay of 26 years considering the merits of the case. 15. Here in this case I find that the limitation for filing the appeal is 30 days from the pronouncement of judgment. The appeal was barred by time about seven months. As has been noticed, for an ex parte judgment dismissing the suit of the plaintiff, a recall application was entertained and was allowed ex parte in absence of the defendant-petitioner. The service of notice was found to be sufficient on the defendant-petitioner basis of its publication in the newspaper known as "Sanmarg." It is stated that the newspaper "Sanmarg" is not a paper of the wide circulation. There is nothing on record to suggest that the said news paper, in which notice was published, was of a wide circulation in the locality and the petitioner, who resides in the village, could know about the publication of the said notice. There is nothing on record to suggest that the said news paper, in which notice was published, was of a wide circulation in the locality and the petitioner, who resides in the village, could know about the publication of the said notice. A declaratory suit filed against the petitioner was decreed. There was no occasion for the petitioner to keep mum, if he was made aware of the judgment and decree passed against him. In a number of cases, the Apex Court has held that while considering the matter of condonation of delay, if delay is not deliberate, mala fide, outcome dilatory tactics or negligence, it should be condoned. 16. After going through the entire facts, I find that there was neither any deliberate inaction, lack of bona fide or mala fide on the part of the petitioner and sufficient explanation for condoning the delay was present. Therefore, considering the various pronouncements of the Apex Court, as has been noticed in the earlier paragraphs of the judgment, I find that both the Courts below have erred in rejecting the petitioner's application for condonation of delay and dismissing the appeal as barred by time. In my considered opinion, both the judgments cannot be sustained in the eye of law. 17. Consequently, the writ petition succeeds and is allowed. The impugned order dated 6.2.2008 passed by the Commissioner, Vindhyachal Division, Vindhyachal in appeal No. 14 of 2007 is hereby quashed. The delay in filing the appeal is hereby condoned. The appellate Court is directed to decide the appeal in accordance with law. However, considering the fact that substantial justice is to be done to both the parties, therefore, the inconvenience caused to the other side is being compensated by imposing a cost of ` 5,000/- upon the petitioner. In case the petitioner deposits the above cost before the Commissioner, Vindhyachal Division, Vindhyachal in the aforesaid appeal, along with certified copy of the order of this Court, regular number be given to the appeal and the same shall be heard on merit. The cost deposited by the petitioner may be withdrawn by the contesting respondent Nos. 6 to 8.