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2022 DIGILAW 758 (ALL)

Harish Chandra v. State of U. P.

2022-05-12

AJAI TYAGI, K.J.THAKER

body2022
JUDGMENT : Heard Sri Shyam Singh Sengar, learned counsel for the appellant, Sri Chandrashekhar, learned counsel for the respondents and learned Standing Counsel for the State. 2. On very short point this appeal can be disposed of. We are thankful to Sri Chandrashekhar for pointing out three aspects: (i) that the matter was dismissed for not making good the deficit of Court fees; (ii) this is a defective appeal of the year 1993; (iii) while filing the appeal there was no delay. The appeal came to be dismissed on 22.11.1995 and a restoration application came to be filed immediately i.e in 1995, unfortunately the appellant and his advocate did not take any steps to make good the deficit Court fees and all other defects which was there. This Court again in the year 2000 dismissed the same for the second time which went in the disposal list. 3. Learned counsel for the appellant has placed reliance on the judgment of Division Bench of this High Court in F.A. No. 56 of 2005, in F.A.No. 1062 of 1995 and judgment of Single Judge in F.A. No. 395 of 2018. Similarly, learned counsel for the respondent has placed reliance on the judgment of Single Judge in F.A No. 993 of 2021 and Division Bench of this High Court in F.A.No. 184 of 2019. 4. In the year 2018 Division Bench of this High Court more particularly in F.A. No. 56 of 2005 on 21.7.2015 passed some orders despite that appellant did not wake up from his slumber. The other matters were also allowed on 16.11.2016 relying on the decision of the Division Bench in F.A No. 56 of 2005 and F.A. No. 1062 of 1995 came to be allowed. It also did not make up the appellant herein, thereafter, one of us sitting as Single Judge decided the list where on 30.5.2018 and Hukum Singh and others and also U.P. Avas Evam Vikash Parishad took the matters to the Apex Court. 5. On 4.1.2021, the learned Single Judge of this Court in F.A.D. No. 87 of 2021 allowed connected appeals which is pointed out by the learned counsel for the respondents which has attained finality on 25.4.2022. 6. As far as this appeal is concerned three issues emerged : (1) From the year 1993 till date U.P. Avas Evam Vikash Parishad was not made party. 6. As far as this appeal is concerned three issues emerged : (1) From the year 1993 till date U.P. Avas Evam Vikash Parishad was not made party. On the direction of this Court in the year 2022 they were made party. It is submitted by the learned counsel for the U.P. Avas Evam Vikash Parishad that the appeal cannot be allowed as even in the appeal the appellant has claimed enhancement at a rate of Rs. 100/-. It is further submitted that the deficit Court fees are paid on this valuation and therefore the enhancement requires to be restricted to Rs. 100/- square yard; (2) Should the U.P. Avas Evam Vikash Parishad be saddled with interest. The appeal was dismissed for default way back in the year 1995, it was again dismissed for default even in the year 2020 and 2021, Court fees were not paid. The other matters came to be decided in the year 2016 and 2018 respectively, that also did not wake the slumber of the appellant herein. Though the delay is condoned by this Court because of the decision of the Apex Court that parity should be maintained but the decision in Ram Chandra v. U.O.I., (2020) 15 SCC, would apply, but the respondents cannot be saddled with costs/interest for the said period. The said view is reiterated by the Apex Court in case of Nimna Dudhana Project v. State of Maharashtra and others, AIR 2020 SC 717 . The appellant has been lacks in prosecuting the case and therefore and in the light of these judgments the interest for the said period cannot be granted, however, on the enhanced amount from the date of enhancement is made till the award appellant would be entitled on the enhanced amount and from the date the delay is restored it will carry interest. It is stated by the Sri Chandrashkehar, learned counsel for the respondents that the matter is concluded by the Apex Court and hence though formally objects as Rs. 100/- per square yard is claimed. 7. We hold in light of the facts that Rs. 120/- per square yard be paid to the appellant, however, for the period from 1995 till the restoration is filed in the year 2022, they shall not be entitled for the interest as held by the Apex Court and as submitted by Sri Chandrashekhar, learned counsel for the respondents. 8. 7. We hold in light of the facts that Rs. 120/- per square yard be paid to the appellant, however, for the period from 1995 till the restoration is filed in the year 2022, they shall not be entitled for the interest as held by the Apex Court and as submitted by Sri Chandrashekhar, learned counsel for the respondents. 8. The defective appeal is disposed of. 9. The appellant to make good the deficit Court fees and if they do not make good the requisite Court fees, the learned trial Judge of the Court below where the money is to be deposited would deduct the said amount of Rs. 20/- per square yard. The deficit Court fees would be recovered by the amount deposited by the respondents. The respondents to deposit the difference amount within 12 weeks from today with the accrued interest from the date of the award till the award and from the date of filing of restoration i.e. 27.4.2022 till the amount is deposited. We are thankful to Sri Chandrashekhar who has assisted us on the very first date of hearing though his name was not shown in the cause list. The counsel for the State adopted the submission of Sri Chandrashekhar.