Research › Search › Judgment

Allahabad High Court · body

2020 DIGILAW 751 (ALL)

Rais Ahmad v. Moharram Ali

2020-03-06

RAKESH SRIVASTAVA

body2020
JUDGMENT : Rakesh Srivastava, J. 1. Notice on behalf of respondent Nos. 2 and 3 has been accepted by the office of the learned Chief Standing Counsel. In view of the nature of controversy involved and the order proposed to be passed, no useful purpose would be served by keeping the petition pending and as such notice to Moharram Ali, the private respondent is dispensed with and the matter is being disposed of at the admission stage itself. 2. The suit for partition and separate possession of their shares, filed by the petitioners herein, which came to be registered as Suit No. 144/14-15, was decreed by the Sub Divisional Officer, Nawabganj Barabanki vide judgment dated 28.12.2015. The Court held the petitioners to be the absolute owners of Gata No. 1487, whereas respondent No. 1 was held to be the absolute owner of Gata No. 1483 and 1484 and with respect to the other gatas, the petitioners and Moharram Ali - respondent No. I were held to be equal share holders. 3. On 12.9.2019, the respondent No. 1, filed a Revision No. 01469/2019 under Section 210 of the U.P. Revenue Code, 2006 (for short 'the Code') against the said decree before the Additional Commissioner, Ayodhya Mandal Ayodhya. The revision was barred by more than three and a half years. 4. Without any notice to the petitioners, by the impugned order dated 18.9.2019, the delay was condoned and the revision was admitted. The impugned order reads as under: ^^i=koyh is'k gqbZA fuxjkuhdRrkZ ds fo}ku vf/koDrk dh cgl fuxjkuh dh xzkg~;rk ds fcUnq ij lquh x;hA ;g fuxjkuh eksgjZe vyh dh vksj ls miftykf/kdkjh uokcxat] ckjkcadh }kjk ikfjr vkns'k fnukad 28-12-2015 ds fo:} ;ksftr dh x;h gSA fuxjkuhdRrkZ ds vf/koDrk }kjk fe;kn vf/kfu;e dh /kkjk 5 dk ykHk ÁkIr djus gsrq ÁkFkZuk i= ÁLrqr fd;k x;k gSA vr% fe;kn vf/kfu;e dk ykHk Ánku djrs gq;s fuxjkuh lquokbZ gsrq xzkg~; dh tkrh gSA voj U;k;ky; dh i=koyh ryc dh tk,A foi{khx.k dks uksfVl tkjh dh tk,A i=koyh lquokbZ gsrq fnukad 09-01-2020 dks is'k gksA** 5. Sri Yogesh Chandra Srivastava, learned counsel for the petitioners, has contended that without issuing notice to the petitioners, the delay could not have been condoned. Sri Yogesh Chandra Srivastava, learned counsel for the petitioners, has contended that without issuing notice to the petitioners, the delay could not have been condoned. He has further submitted that neither there was any application for condonation of delay nor any sufficient cause was shown for the inordinate delay in filing the revision, and in this view of the matter also, the delay in filing the revision could not have been condoned. Even otherwise, the counsel submits, the order, being a non-speaking order, cannot be sustained. 6. Sections 210 and 214 of the U.P. Revenue Code and Section 5 of the Limitation Act, 1963 read as under: 210. Power to call for the records.- (I) The Board or the Commissioner may call for the record of any suit or proceeding decided by any subordinate revenue Court in which no appeal lies, or where an appeal lies but has not been preferred, for the purpose of satisfying itself or himself as to the legality or propriety of any order passed in such suit or proceeding; and if such subordinate Court appeals to have- (a) exercised a jurisdiction not vested in it by law; or (b) failed to exercise a jurisdiction so vested; or (c) acted in the exercise of such jurisdiction illegally or with material irregularity, the Board, or the Commissioner, as the case may be, may pass such order in the case as it or he thinks fit. (2) If an application under this section has been moved by any person either to the Board or to the Commissioner, no further application by the same person shall be entertained by the other of them. (3) No application under this section shall be entertained after the expiry of a period of third days from the date of the order sought to be revised or from the date of commencement of this Code, whichever is later. * * * 214. Applicability of Code of Civil Procedure, 1908 and Limitation Act, 1963.- Unless otherwise expressly provided by or under this Code, the provisions of the Code of Civil Procedure, 1908 and the Limitation Act, 1963 shall apply to every suit, application or proceeding under this Code. * * * 5. * * * 214. Applicability of Code of Civil Procedure, 1908 and Limitation Act, 1963.- Unless otherwise expressly provided by or under this Code, the provisions of the Code of Civil Procedure, 1908 and the Limitation Act, 1963 shall apply to every suit, application or proceeding under this Code. * * * 5. Extension of prescribed period in certain cases.-Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section. 7. Under Sub-section (3) of Section 210 of the Code, the limitation for filing a revision before the Board or the Commissioner is 30 days from the date of the order against which the application is directed. However, Section 214 of the Code read with Section 5 of the Limitation Act empowers the Board or the Commissioner, as the case may be, to condone the delay in filing the revision under Section 210 of the Code, provided that sufficient cause is shown by the applicant for not availing the remedy within the prescribed period of limitation. 8. The power to condone the delay under Section 5 of the Act is discretionary and even where sufficient cause is shown by a party it cannot claim condonation of delay as a matter or right. In Ramlal v. Rewa Coalfields Ltd., AIR 1962 SC 361 , the Apex Court has held as under: "12. It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay." (emphasis, supplied) 9. The Revisional Court, thus, had the discretion to condone the delay and entertain the revision after the expiry of the period of limitation, if it was satisfied on the facts and in the circumstances of the case that the delay had been properly explained and that it was necessary to do so in the interest of justice. The discretion conferred on the Court has to be exercised judicially and on well recognised principles. It is a well-settled legal position that whenever, the Court exercises this discretion, the same must be by a speaking order, indicating the satisfaction of the Court that the delay was satisfactorily explained and condonation of the same was in the interest of justice. 10. In P.K. Ramachandran v. State of Kerala, (1997) 7 SCC 556 , the Apex Court has held as under: "3. It would be noticed from a perusal of the impugned order that the Court has not recorded any satisfaction that the explanation for the delay was either reasonable or satisfactory, which is an essential prerequisite to condonation of delay." (emphasis supplied) 11. In D. Goptnathan Filial v. State of Kerala, (2007) 2 SCC 322 , the Apex Court reiterated what was said in Ramchandran's case. Paragraph 5 of the said report is reproduced below: "5. We are unable to countenance the finding rendered by the Sub-Judge and also the view taken by the High Court. There is no dispute in regard to the delay of 3320 days in filing the petition for setting aside the award. When a mandatory provision is not complied with and when the delay is not properly, satisfactorily and convincingly explained, the Court cannot condone the delay, only on the sympathetic ground. The orders passed by the learned Sub-Judge and also by the High Court are far from satisfactory. No reason whatsoever has been given to condone the inordinate delay of 3320 days. The orders passed by the learned Sub-Judge and also by the High Court are far from satisfactory. No reason whatsoever has been given to condone the inordinate delay of 3320 days. It is well-considered principle of law that the delay cannot be condoned without assigning any reasonable, satisfactory, sufficient and proper reason. Both the Courts have miserably failed to comply and follow the principle laid down by this Court in a catena of cases. We, therefore, have no other option except to set aside the order passed by the Sub-Judge and as affirmed by the High Court. We accordingly set aside both the orders and allow this appeal." (emphasis supplied) 12. In the case at hand, the revision filed by the respondent No. I was, on the face of it, barred by limitation by more than three and a half years. By the impugned order, the Revisional Court has condoned the inordinate delay by a cryptic order without recording its satisfaction that the delay was either reasonable or satisfactory. The Revisional Court has, thus, committed a serious error in condoning the delay and admitting the revision. In this view of the matter alone, the impugned order condoning the delay cannot be sustained and is liable to be set aside. 13. The petition is allowed. The order condoning the delay is set aside and the matter is remanded to the Revisional Court to pass a fresh order in accordance with law. 14. The petitioners are granted liberty to file their objections with regard to the maintainability of the revision taking all the pleas available to them including the plea of limitation before the Revisional Court and the Revisional Court while passing a fresh order shall take into consideration the objections, if any, filed by the petitioners.