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2024 DIGILAW 2041 (ALL)

Sanjay Kumar v. State Of Uttar Pradesh

2024-09-10

DINESH PATHAK

body2024
JUDGMENT : Dinesh Pathak, J. 1. Heard learned counsel for the parties and perused the record on board. 2. Aggrieved with the order dated 27.3.2023 passed by the Deputy Director of Consolidation in Revision No. 2015530149000043 under section 48(1) of UP Consolidation of Holdings Act, 1950 (in brevity ‘UPCH Act’), reversing the order dated 28.9.2002 passed by the Settlement Officer of Consolidation in appeal No. 438 under section 11(1) of UPCH Act whereby delay caused in filing the appeal has been condoned on the cost of Rs. 100/-and date is fixed for hearing the appeal on merits, petitioner has filed the present writ petition. 3. Having considered the rival submissions advanced by the learned counsel for the parties and perusal of record, it is manifested that instant writ petition has arisen from delay condonation in filing the appeal before the Settlement Officer of Consolidation. In basic consolidation record, names of Kanhaiya Lal and Shiv Prasad (predecessor-in-interest of the petitioners) were recorded. One Angad Rai (father of respondent No. 4) has filed an objection under Section 9A(2) of UPCH Act claiming his right and title over the property in question on the basis of sale deed said to have been executed by Kanhaiya Lal. The Consolidation Officer, vide order dated 30.7.1970, has allowed the objection under Section 9A(2) of UPCH Act and passed an order to record the name of Aangad Rai & others in place of recorded tenure holders. At belated stage, after the death of Kanhaiya Lal, an appeal dated 21.07.1982 has been preferred on behalf of his son, namely, Sanjay Kumar (minor) under the guardianship of his mother Smt. Prema Devi wife of Kanhaiya Lal. The Settlement Officer of Consolidation, vide order dated 15.11.1989, has condoned the delay in filing the appeal and, simultaneously, allowed the appeal on merits whereby the parties were relegated before the Consolidation Officer to get the matter decided afresh. The Deputy Director of Consolidation, on revision being filed on behalf of the Angad Rai, has reversed the order passed by the Settlement Officer of Consolidation and relegated the parties, at the appellate stage to decide the point of delay first caused in filing the appeal, before deciding its merits. The Deputy Director of Consolidation, on revision being filed on behalf of the Angad Rai, has reversed the order passed by the Settlement Officer of Consolidation and relegated the parties, at the appellate stage to decide the point of delay first caused in filing the appeal, before deciding its merits. In pursuance of the remand order dated 5.6.1999 passed by the Deputy Director of Consolidation, the matter has been scrutinized on the point of delay, as such, the Settlement Officer of Consolidation, vide order dated 28.9.2002, has condoned the delay in filing the appeal on the cost of Rs. 100/-. Having been aggrieved with the order dated 28.9.2002 passed by the Settlement Officer of Consolidation, Subhash Kumar (respondent No. 4) and others have preferred revision. The Deputy Director of Consolation, vide order dated 27.3.2003, has allowed the revision and quashed the delay condonation order passed by the Settlement Officer of Consolidation, which gives rise a cause of action for filing the instant writ petition. 4. Solitary point involved in the instant writ petition relates to the condonation of delay caused in filing the appeal dated 21.7.1982 assailing the order dated 30.7.1970 passed by the Consolidation Officer in proceeding under Section 9A(2) of UPCH Act. As per the ground taken by the petitioner in appeal dated 21.7.2022 (annexure No. 5), he/she came to know for the first time through rumour in the village on 19.7.1982 qua order passed by the consolidation court, therefore, inspected the record on 20.7.1982. Petitioner came with a specific case that before that neither the appellant (petitioner No. 1 herein) nor his father had ever come to know about the order passed by the Consolidation Officer. It is apposite to mention that father of the petitioner No. 1 had died on 25.4.1982 and, after his death, the appeal was filed on 21.7.1982. The petitioner has denied any service of notice upon Kanhaiya Lal and also denied the filing of Vakalatnama on his behalf. Learned counsel for the petitioner has attemted to bring out a case of fraud by distinguishing between the signatures made on the Vakalatnama (annexure No. 2) and the notice (annexure No. 3). Learned counsel for the contesting-respondents has denied the plea as raised on behalf of the petitioner and came with the contention that one Mr. Ramesh Chandra Kulshrestha had appeared and filed his Vakalatnama on 8.6.1970 on behalf of Kanhaiya Lal. Learned counsel for the contesting-respondents has denied the plea as raised on behalf of the petitioner and came with the contention that one Mr. Ramesh Chandra Kulshrestha had appeared and filed his Vakalatnama on 8.6.1970 on behalf of Kanhaiya Lal. Notice was properly served upon Kanhaiya Lal and the delay in filing the objection under Section 9A(2) of UPCH Act was condoned in his presence, vide order dated 18.6.1970, on the cost of Rs. 10/-. He has placed reliance on the order sheets dated 7.7.1970 and 16.7.1970 whereby time was granted to the defendant for filing written statement and, thereafter, the case was ordered to be proceeded ex-parte in absence of the defendant, respectively. Copy of the order sheets from dated 27.5.1970 to dated 16.7.1970 are collectively filed as annexure No. CA-1 to the counter affidavit. Qua the survival of another co-tenant Shiv Prasad, it has been contended that he has executed a registered sale deed on 2.9.2002, however, he himself has never made any endeavour to challenge the order dated 30.7.1970 passed by the Consolidation Officer. 5. In nutshell, there is an intricated question qua knowledge of order dated 30.7.1970 passed by the Consolidation Officer in proceeding under Section 9A(2) of UPCH Act whereby names of Kanhaiya Lal and Shiv Prashad (predecessors-in-interest of the petitioners) have been ordered to be deleted from the consolidation record and in its place name of predecessors-in-interest of the contesting-respondent No. 4 and others have been ordered to be recorded. Admittedly, Kanhaiya Lal died on 25.4.1982, however, his minor son (Sanjay Kumar) through his mother being a guardian has filed an appeal on 21.7.1982. The appellant has blatantly denied the knowledge about the order dated 30.07.1970, to him, and his father Kanhaiya Lal either. However, the contesting-respondents are vehemently relied upon the memo of appearance filed by counsel Sri Ramesh Chandra Kulshreshtha, who was a designated “Vakeel”. The Settlement Officer of Consolidation while condoning the delay in filing the appeal was of the opinion that the liberal view should be taken in condoning the delay so that opportunity may be accorded to the appellant to defend his case. However, he has not returned any finding qua sufficiency of cause for delay in filing the appeal. The Settlement Officer of Consolidation while condoning the delay in filing the appeal was of the opinion that the liberal view should be taken in condoning the delay so that opportunity may be accorded to the appellant to defend his case. However, he has not returned any finding qua sufficiency of cause for delay in filing the appeal. The Deputy Director of Consolidation, in turn, has laid emphasis upon the service of notice on Kanhaiya Lal, who had chosen not to contest the case and, ultimately, the same is resulted into final culmination of proceeding under section 9A(2) of UPCH Act by the order dated 23.7.1970 passed against him. The Deputy Director of Consolidation has emphasised the reluctance at the part of Kanhaiya Lal, who had not assailed the order dated 30.7.1970. Thus, he has concluded that both the parties were litigated before the Consolidation Officer, therefore, filing an appeal at the belated stage, after twelve years, is not liable to be condoned. 6. It is no more res integra that whenever technicality is pitted against the substantial justice, it is substantial justice which prevails. Law of limitation is based upon public policy intending to discourage unnecessary litigation between the parties, therefore, while exercising discretionary power to condone the delay, the Court should act sparingly. Delay cannot be condoned in a cavalier manner unless the sufficient cause is shown by the parties. Normally, despite the prescribed period of limitation is expired, the phrase “sufficient cause” receiving a liberal construction so as to advance substantial justice when no negligence, inaction or for want of bonafide is imputable to the adversary party. Meaning thereby, if sufficient cause for delay is shown by the parties concerned, discretion entrusted upon the court/authority concerned to condone the delay so that substantial justice be done. In the case of Ram Nath Sao v. Govardhan Sao, AIR 2002 SC 1201 , the Hon'ble Supreme Court has expounded that the expression "sufficient cause" should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned, where or not "sufficient cause" has been furnished, can be decided on the facts of the particular case and no straitjacket formula is possible. Dealing with the phrase “sufficiency cause”, Hon’ble Supreme Court in the matter of Majji Sannemma @ Sanyasirao vs. Reddy Srivedi & Others reported in AIR 2022 SC 332 , has expounded that, in normal course, delay cannot be condoned unless sufficient reason is assigned. For ready reference, Paragraph Nos. 7.1 to 7.5 are quoted hereinbelow:- "7.1 In the case of Ramlal, Motilal and Chhotelal (supra), it is observed and held as under:- In construing s. 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chattappan, (1890) J.L.R. 13 Mad. 269, "s. 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant." 7.2 In the case of P.K. Ramachandran (supra), while refusing to condone the delay of 565 days, it is observed that in the absence of reasonable, satisfactory or even appropriate explanation for seeking condonation of delay, the same is not to be condoned lightly. It is further observed that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. It is further observed that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. It is further observed that while exercising discretion for condoning the delay, the court has to exercise discretion judiciously. 7.3 In the case of Pundlik Jalam Patil (supra), it is observed as under : The laws of limitation are founded on public policy. Statutes of limitation are sometimes described as "statutes of peace". An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. The principle is based on the maxim "interest reipublicae ut sit finis litium", that is, the interest of the State requires that there should be end to litigation but at the same time laws of limitation are a means to ensure private justice suppressing fraud and perjury, quickening diligence and preventing oppression. The object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy." 7.4 In the case of Basawaraj (supra), it is observed and held by this Court that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case. It is further observed that the expression "sufficient cause" cannot be liberally interpreted if negligence. inaction or lack of bona fides is attributed to the party. It is further observed that even though limitation may harshly affect rights of a party but it has to be applied with all its rigour when prescribed by statute. It is further observed that in case a party has acted with negligence, lack of bona fides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. It is observed that each application for condonation of delay has to be decided within the framework laid down by this Court. It is further observed that in case a party has acted with negligence, lack of bona fides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. It is observed that each application for condonation of delay has to be decided within the framework laid down by this Court. It is further observed that if courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to legislature. 7.5 In the case of Pundlik Jalam Patil (supra), it is observed by this Court that the court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The Courts help those who are vigilant and "do not slumber over their rights." 7. Applying the ratio decided by Hon’ble Supreme Court, as discussed above, in the given circumstances of the present case, it is evident that Deputy Director of Consolidation while quashing the order passed by the Settlement Officer of Consolidation has not properly discussed the genuineness of the Vakalatnama and service of notice upon the Kanhaiya Lal as pointed out by the petitioner in the writ petition. Both the parties are at variance on the point of knowledge qua order dated 30.7.1970 passed by the Consolidation Officer. I have already discussed the facts relating to delay in previous paragraphs, wherein petitioner has denied the knowledge of proceeding under section 9A(2) of UPCH Act before the Consolidation Officer, however, conversely, the contesting-respondents have laid emphasis upon the knowledge to Kanhaiya Lal who was served with notice, and appeared through “Vakeel”, namely, Sri Ramesh Chandra Kulshreshtha. While returning its finding qua service of notice upon Kanhaiya Lal and his appearance through “Vakeel”, the Deputy Director of Consolidation has failed to appraise the evidence on record. There is no discussion, appraising the copy of notice which is said to have been served upon Kanhaiya Lal and memo of appearance filed by “Vakeel” Sri Ramesh Chandra Kulshreshtha on behalf of Kanhaiya Lal. In case, it is proved that despite the knowledge Kanhaiya Lal had chosen not to assail the order dated 30.7.1970 passed by the Consolidation Officer then right of the appellant (descendants from Kanhaiya Lal) to assail the order passed by the Consolidation Officer will be affected. In case, it is proved that despite the knowledge Kanhaiya Lal had chosen not to assail the order dated 30.7.1970 passed by the Consolidation Officer then right of the appellant (descendants from Kanhaiya Lal) to assail the order passed by the Consolidation Officer will be affected. However, on the flip side, in case, knowledge to Kanhaiya Lal is not proved, then certainly, to serve the substantial justice, the petitioner should be accorded an opportunity to contest the appeal on merits. Needless to say that date of knowledge and source of knowledge of any particular event to explain the “sufficient cause” is paramount consideration at the time of considering the point of delay in filing any application or appeal etc. Therefore, liberal approach in condoning the delay cannot be made absolute and same is subject to the bonafide and conscious action of the person, who is beseeching for the condonation of the delay. 8. In this conspectus, as above, in my considered opinion, the Deputy Director of Consolidation has decided the revision in a very perfunctory manner having been influenced with the presence of Kanhaiya Lal in proceeding under Section 9A(2) of UPCH Act, culminated by order dated 30.7.1970 passed by the Consolidation Officer. However, he has miserably failed to discuss the relating evidence to prove the presence of Kanhaiya Lal in the proceeding in question and his knowledge qua order dated 30.7.1970, who has allegedly restrained himself from assailing the said order during his life time. The Deputy Director of Consolidation should have accorded conscious discussion qua knowledge of Kanhaiya Lal in the light of available documentary evidence on the record with respect to which both the parties are at variance. Thus, instant writ petition succeeds and is partly allowed. The order dated 27.3.2023 passed by the Deputy Director of Consolidation is quashed. The revision filed on behalf of Subhash Kumar and others is restored to its original number and parties are relegated before the Deputy Director of Consolidation to get the revision decided de novo in the light of the observation as made in the order of the date. 9. The revision filed on behalf of Subhash Kumar and others is restored to its original number and parties are relegated before the Deputy Director of Consolidation to get the revision decided de novo in the light of the observation as made in the order of the date. 9. It is expected that the Deputy Director of Consolidation shall accord conscious appraisal to the documents on record and pass a speaking and reasoned order in accordance with law after giving opportunity of hearing to the parties concerned without granting unnecessary adjournment to either of the parties expeditiously, preferably, within a period of three months from the date of appearance of the parties along with certified copy of the order of the date, who are hereby directed to appear before the Deputy Director of Consolidation on 24.9.2024.