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2021 DIGILAW 107 (MP)

Mata Prasad v. Ajmer Singh

2021-02-04

SANJAY DWIVEDI

body2021
JUDGMENT : Sanjay Dwivedi, J. 1. None for the other respondents, despite served, have not contested the matter before the Court below. With the consent of the learned counsel for the parties, the matter is heard finally. 2. This petition is filed under Article 227 of the Constitution of India questioning the legality, validity and propriety of the order dated 10.02.2020 passed by the Collector affirming the order of the Sub Divisional Officer dated 04.01.2020. 3. As per the facts of the case, respondent No. 1 somewhere in the year 2004 filed an application under Section 115/116 of the M.P. Land Revenue Code, 1959 (hereinafter referred to as the 'Code, 1959') before the Tahsildar, Tahsil Devsar, District Singrauli for correction in the revenue records with respect of the disputed land bearing Khasra No. 452 total area 2.80 acre, Gram Sajaapani, Tahsil Devsar, District Singrauli. 4. After filing the application, the case was registered by the Tahsildar and report of Patwari was called for and on the basis of the said report, the application was allowed vide order dated 26.04.2011 (Annexure-P/1) although the present petitioners were not given any notice in the said proceeding. 5. Being aggrieved with the order passed by the Tahsildar, an appeal was preferred under Section 44(1) of the Code, 1959, before the Sub Divisional Officer along with an application under Section 5 of the Limitation Act, 1963 as the appeal was barred by time. During the pendency of appeal, on 27.07.2017, no one appeared on behalf of the petitioners and also on behalf of the respondents, the appeal was, therefore, dismissed for want of prosecution by the Sub Divisional Officer. 6. Thereafter, on 29.06.2019, the petitioners moved an application under Section 35(3) of the Code, 1959 for restoration of appeal or recall of the order dated 27.07.2017. It is stated in the application that the petitioners are residents of Gram Dasauti, which is a distant place and they could not appear on each and every hearing of the case, but the counsel engaged by them, used to appear on their behalf. It is further stated that on 27.07.2017, their counsel was busy before other Court, as a result of which, he could not appear in the case and appeal was dismissed in default. 7. It is further stated that on 27.07.2017, their counsel was busy before other Court, as a result of which, he could not appear in the case and appeal was dismissed in default. 7. When the petitioners contacted their counsel, he informed the petitioners that he has stopped appearing in the appeal and thereafter the petitioners inquired about the status of the appeal and then only they came to know that their appeal had already been dismissed in default whereas they were interested to prosecute the same. 8. An application for restoration of appeal was filed along with the application under Section 5 of the Limitation Act saying that there is a delay in filing the application, therefore, the same may be condoned and in the application they have stated the sufficient cause. However, their application was rejected by the Sub Divisional Officer mentioning therein that since last two dates nobody appeared and the application for condonation of delay has been moved after a period of two years taking the ground of non-appearance of the counsel and not communicating the petitioners about his conduct as he stopped appearing in the case. The restoration application was rejected by the Sub Divisional Officer holding that the ground mentioned in the application does not constitute any sufficient cause. Thereafter, the order of the Sub Divisional Officer was further assailed before the Collector, who in turn, vide order dated 10.02.2020 has also rejected their appeal and affirmed the order passed by the Sub Divisional Officer holding that the reason assigned in the application does not constitute any sufficient cause. 9. Challenging the order passed by the Collector, this petition has been preferred saying that both the authorities have not properly appreciated the facts of the case and erroneously observed that the explanation given by the petitioners for condoning the delay was not sufficient and the same does not constitute any sufficient cause. 10. The counsel for the petitioners has placed reliance upon a judgment of the Supreme Court reported in (2013) 12 SCC 649 parties being Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and others, in which, the Supreme Court has laid down a principle for condoning the delay and the obligation upon the Court while dealing with the application of condonation of delay. Managing Committee of Raghunathpur Nafar Academy and others, in which, the Supreme Court has laid down a principle for condoning the delay and the obligation upon the Court while dealing with the application of condonation of delay. She further relied upon a judgment parties being Mohammed Sakir v. Union of India and another, wherein the Division Bench of this Court has observed that not appearing of the counsel in the matter without intimating the party is a sufficient cause for condoning the delay if adverse order is passed by the Court due to non-appearance of the counsel. 11. Per contra, Shri Jayaswal appearing for respondent No. 1 has submitted that the delay is exorbitant and the reason assigned in the application for condoning the delay does not appear to be proper because it is not expected from the litigant to stay aloof for a period of two years without contacting their counsel and also not showing interest in the status of their case. He further submits that the authorities have not committed any illegality and as such, supported the order passed by the Sub Divisional Officer and also by the Collector. 12. I have heard the rival contentions of the learned counsel for the parties and perused the record. 13. An application under Section 5 of the Limitation Act had also been filed by the petitioners, in which, it is stated that when the petitioners were cultivating the land in the year 2012, then only the respondents came and restrained them from doing so informing that the land had got mutated in their names. It was surprising for the petitioners, therefore, they came to Devsar on 07.07.2012; inquired about the status of their case; and applied for certified copy of the order. The copy got delivered on 16.07.2012 and on the next date i.e. 17.07.2012, an appeal was preferred by them. It was stated in the application that the reason for not appearing in the matter is sufficient as they had not been informed about their counsel not attending the case and as such, delay should be condoned. 14. The copy got delivered on 16.07.2012 and on the next date i.e. 17.07.2012, an appeal was preferred by them. It was stated in the application that the reason for not appearing in the matter is sufficient as they had not been informed about their counsel not attending the case and as such, delay should be condoned. 14. From the order of the Sub Divisional Officer, it reflects that the authorities have not considered the application and reasons mentioned therein in a proper manner, but very casually they dealt with the application and considering the period of delay i.e. two years, rejected the same saying that the reason is not sufficient and the Collector in its order has also reiterated the same. 15. However, in view of the judgment of the Division Bench of this Court i.e. Mohammed Sakir (supra), in which, almost same reason was assigned, as has been shown in the present case, and delay of seven years was condoned by the Court, and the facts and circumstances as has been stated in the application by the present petitioners, it appears that they were very much keen to prosecute their matter because as soon as they came to know about the fact that the land in dispute got mutated in the name of respondent No. 1 by deleting their names, they came to Devsar on 07.07.2012; applied for certified copy of the order, which was delivered to them on 16.07.2012 and on the next date i.e. 17.07.2012, the appeal was preferred. 16. The Division Bench in case of Mohammed Sakir (supra) has observed as under:- "The delay of seven years in filing the application for restoration was explained by contending that the counsel, who was appearing for the petitioner/applicant, did not inform the applicant, the counsel whenever contacted on phone used to tell the applicant that the matter is pending and it is only when the petitioner/applicant came to Jabalpur in July, 2013, that he was apprised of the fact of dismissal of his application, and he took steps for restoration of the same........" 17. Likewise, the Supreme Court in case of Esha Bhattacharjee (supra), has also laid down the principles for considering the application of condonation of delay and observed as under:- "The principles applicable to an application for condonation of delay are as follows: (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. (vii) The concept of liberal approach has to encapsulate the conception or reasonableness and it cannot be allowed a totally unfettered free play. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. (xi) It is to be borne in mind that on one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. (xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. (xiv) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. (xv) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. (xvi) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. (xvii) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters." 18. In view of the above and considering the reason assigned in the application, in my opinion, the same is sufficient for condoning the delay. Although, the authorities have not appreciated the same in a proper manner. 19. The petition is accordingly, allowed. The orders passed by the Collector and the Sub Divisional Officer dated 10.02.2020 and 04.01.2020 respectively, are hereby set aside. 20. The appeal No./81/Appeal/13-14 is restored to its original number. The parties are directed to appear before the Sub Divisional Officer, Devsar, District Singrauli, on 15.03.2021. 21. The petition filed by the petitioners is allowed and disposed of with the aforesaid observation.