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Himachal Pradesh High Court · body

2018 DIGILAW 1523 (HP)

Bimla Devi v. Financial Commissioner (Appeals)

2018-08-20

CHANDER BHUSAN BAROWALIA

body2018
JUDGMENT : Chander Bhusan Barowalia, J. The present petition, under Article 227 of the Constitution of India, has been maintained by the petitioner, against the order dated 30.11.2015, passed by learned Financial Commissioner, Shimla, H.P, whereby an application, No. 22 of 2016, under Section 5 of the Limitation Act, read with Section 151 CPC, filed by respondent No. 2 in Revision Petition No. 17 of 2015, has been allowed and the delay of more than 30 years has been condoned. 2. Briefly stating facts giving rise to the present petition are that respondent No. 2 filed an application before the learned Financial Commissioner (Appeals), Shimla, H.P., under Section 5 of the Limitation Act, read with Section 151 CPC, for condonation of delay in filing the revision petition. Wherein it has been averred that being one of the legal heir of the trustee, he was not aware about the said trust and he only came to know about that fact on 02.11.2014, when he got the photocopy of trust deed in the old wooden box of his father, while searching some other documents. Thereafter he applied for the copy of mutation, which was obtained on 29.12.2014 and filed the revision petition without any further delay. Thus, the delay cannot be said to be intentional and a prayer to condone the same has been made. 3. In reply to the application, it has been averred that the respondent No. 2 has no locus standi to file the present application, as he is a stranger to the land in dispute and has misused the judicial process by filing the same. It has been denied that respondent No. 2 was not aware about the mutation No. 384, as the management was contesting the said issue before different Courts. Lastly, it has been prayed that as the application is hopelessly barred by limitation and no sufficient cause has been shown by the petitioner for condonation of delay, the same be dismissed with heavy costs. 4. However, learned Financial Commissioner (Appeals), Himachal Pradesh, vide order dated 30.11.2015 condoned the delay in filing the revision petition and after admitting the case, listed the same for arguments on 29.03.2016, hence the present petition. 5. Learned counsel for the petitioners has argued that the order passed by the learned Financial Commissioner (Appeals) is without jurisdiction and has been passed in cursory manner. 5. Learned counsel for the petitioners has argued that the order passed by the learned Financial Commissioner (Appeals) is without jurisdiction and has been passed in cursory manner. He has further argued that the learned Financial Commissioner has not taken into consideration the delay, laches and merits of the case, which was required to be taken into consideration while allowing the application for condonation of delay. He has argued that the facts on record clearly show that there are many other tenants, who had also been given proprietary rights and those have become final, as in case of the present petitioner, but for some extinguish reasons the application has been maintained by respondent No. 2 and the learned Financial Commissioner has condoned the extraordinary delay of more then 30 years for entertaining the revision petition. On the other hand, learned counsel for respondent No. 2 has argued that the learned Financial Commissioner has powers to entertain the revision petition at any time and so the impugned order is as per law and needs no interference. In rebuttal, learned counsel for the petitioner has argued that the delay was required to be condoned, if it should be explained reasonably and sufficiently, however the learned Financial Commissioner without any reasons has condoned the delay of more then 30 years and the order passed is without any jurisdiction. 6. To appreciate the arguments of learned counsel for the parties, this Court has gone through the record in detail. 7. The ground taken by respondent No. 2 before the learned Financial Commissioner for condonation of delay are that earlier he was not aware about the fact that he was legal heir of the trustee and only came to know about said fact on 02.11.2014, when he got the photocopy of trust deed in the old wooden box of his father. Thereafter he applied for the copy of mutation and filed the revision petition alongwith application for condonation of delay. 8. While considering the application for condonation of delay, learned Financial Commissioner (Appeals) has taken into consideration the fact that there is no period of limitation prescribed to entertain the revision petition and it can be entertained at any time. Learned Financial Commissioner while coming to the conclusion that there is prima facie illegality in the mutation order, has not discussed what is the material before him to come to this conclusion. Learned Financial Commissioner while coming to the conclusion that there is prima facie illegality in the mutation order, has not discussed what is the material before him to come to this conclusion. At the same point of time, learned Financial Commissioner has not given any findings why he has condoned the delay of more then 30 years in moving the application and without there being any evidence on record on behalf of respondent No. 2, the application has been allowed. 9. This Court finds that as there are no reasons given by the learned Financial Commissioner while allowing the application, the present petition is required to be allowed to some limited extent, i.e. learned Financial Commissioner (Appeals) is directed to take into consideration the documents, averments and other material on record afresh and after getting the averments made by respondent No. 2 before him to be substantiated by some documents/evidence, pass a reasoned order. Ordered accordingly. Parties are directed to appear before the learned Financial Commissioner (Appeals) on 10th September, 2018. 10. The petition, so also pending miscellaneous application(s), if any, stands disposed of.