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2024 DIGILAW 2252 (ALL)

Keshav Prasad Singh v. State Of U. P.

2024-10-24

SAURABH SHYAM SHAMSHERY

body2024
99 JUDGMENT : Saurabh Shyam Shamshery, J. 1. Heard Sri Siddharth Nandan, Advocate holding brief of Ms. Anjali Singh, learned counsel for petitioners, Sri U.K. Saxena, learned Senior Counsel assisted by Sri Shailesh Kumar Shukla, learned counsel for respondent No. 5 and Sri Anil Kumar Singh Baghel, learned Standing Counsel for State. 2. In the present case, in the year 1974, a suit was filed under Section 229-B of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, by father of the respondent No.5 against father of the petitioner. 3. The said suit was decreed ex-parte by a judgment dated 01.02.1975, whereby the contesting respondents were declared co-sharer with petitioners and accordingly the respondent No.5 got his name mutated in Revenue Record. 4. The above proceedings remain unnoticed by present petition for about 48 years. It is petitioners’ case that when on 25.04.2022, some part of land in suit was acquired by National Highway Authority and respondent No.5 claimed entire compensation in his name only and nothing was provided to petitioners on basis of a sale-deed between respondent No.5 and National Highway Authority, matter was enquired. 5. At this stage, petitioners allegedly came to know about a decree passed in the year 1975 and, therefore, they filed an application under Order 9 Rule 13, read with Section 151 C.P.C. on 04.05.2022 alleging that their signatures were forged and without authority they were made plaintiff in the suit by contesting respondent only to get benefit in exclusion of petitioners by putting their imposters. There was no reason to file a suit against their father. 6. In above application, no separate application for condonation of delay was filed but in paragraph No.11, the reasons for condonation of delay were mentioned and in paragraph 12 of it, a prayer was made to condone the delay. For reference, the relevant paragraphs of application are reproduced hereinafter :- 7. The contesting respondents have filed objections wherein it was prayed to reject the said application on ground of delay as well as on merit. 8. During pendency of above referred recall application, petitioners have also moved an application on 04.08.2022 for appointment of a handwriting expert to verify the allegation of forged signatures. 9. The contesting respondents have filed objections wherein it was prayed to reject the said application on ground of delay as well as on merit. 8. During pendency of above referred recall application, petitioners have also moved an application on 04.08.2022 for appointment of a handwriting expert to verify the allegation of forged signatures. 9. The application filed under Order 9 Rule 13 was dismissed by an order dated 08.03.2024, mainly on ground that father of petitioners has not objected or challenged the order dated 01.02.1975 during his life time. Petitioners’ father was served and there was no ground to condone the huge delay. The relevant part thereof is mentioned hereinafter :- 10. The above referred order was challenged by petitioners before the Board of Revenue, however, it was also got dismissed by order dated 13.06.2024 on similar ground and for reference, relevant part thereof is mentioned hereinafter :- 11. In the aforesaid circumstances, this writ petition is being filed. Learned counsel for petitioners has harped mainly upon that contesting respondents have included petitioners as plaintiff as imposter and their signatures were forged, however, there is no expert opinion on record as well as application filed for expert opinion does not appear to be effectively pressed. 12. So far as merit is concerned, it could not be considered at this stage since this case is presently arising out of an application filed under Order 9 Rule 13 C.P.C. i.e. to set aside ex-parte order whereby it was dismissed since no explanation was given to condone delay i.e. delay was not condoned. 13. Learned counsel for contesting respondents has supported the impugned order that a huge delay of about 48 years has not been explained properly. No separate application was filed for condonation of delay as well as that allegation of fraud and forgery was not established even prima facie. 14. Heard counsel for parties and perused the record. 15. The Supreme Court in a very recent case of Pathapati Subba Reddy (Died) By L.Rs. No separate application was filed for condonation of delay as well as that allegation of fraud and forgery was not established even prima facie. 14. Heard counsel for parties and perused the record. 15. The Supreme Court in a very recent case of Pathapati Subba Reddy (Died) By L.Rs. and Others Versus Special Deputy Collector (LA), 2024 SCC OnLine SC 513 has dealt with consideration of condonation of delay in such applications and for reference, relevant paragraph thereof is reproduced hereinafter :- "26.On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that: (i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself; (ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time; (iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally; (iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act; (v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence; (vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal; (vii) Merits of the case are not required to be considered in condoning the delay; and (viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision." 16. In the present case, delay is huge, which is about 48 years i.e. about half century of years. Date of knowledge of an order passed in the year 1975 after such huge delay is being referred on basis of a very vague explanation that petitioner came to know about said order only when compensation was given to contesting respondent in the year 2022, when part of land was acquired by National Highway Authority. Nothing substantive was stated in the said paragraph. 17. It is not the case of petitioners that they were not in possession of their share as decided by the decree. Rather it appears that it is a dispute since now money is involved. In case, petitioners have a share in land which is acquired, their requisite share in compensation will be decided by the Land Acquisition Officer. 18. The petitioners have also not challenged the sale-deed executed by contesting respondent with National Highway Authority in the year 2022, till date. 19. It is also well settled that there is no mandatory requirement to file a separate application for condonation of delay, therefore, the averment made in said application in paragraph 11 which is also quoted earlier is also being considered. 20. In the said paragraph, it is being stated that on 25.04.2022, they heard that their father were saying that the land acquired by National Highway Authority belongs to contesting defendants on basis of some decree. Such averment is very vague as well as that a further explanation that only thereafter petitioners have inquired about suit proceedings does not inspired confidence as well. 21. The Court is conscious that ‘fraud initiates every solemn act’, however, fraud has to be asserted effectively and not in a vague manner. The allegation that petitioners’ signatures were forged in the suit being one of plaintiffs does not inspire confidence since no expert opinion is placed on record in this regard as well as application for same was not even pressed before learned Trial Court or Revisional Court. 22. The fraud cannot be considered on vague ground and for that there must be substance but in present case, it is absolutely vague without any material, since it required satisfaction of high standard of proof, which is absolutely absent. 23. 22. The fraud cannot be considered on vague ground and for that there must be substance but in present case, it is absolutely vague without any material, since it required satisfaction of high standard of proof, which is absolutely absent. 23. Petitioners have miserably failed to provide reasonable explanation to condone huge delay of about half of century of years and as referred above, in such cases, instead of liberal, a strict approach has to be adopted, therefore, I do not find that there is any illegality in impugned order whereby application filed under Order 9 Rule 13 C.P.C. was rejected by learned Trial Court on ground that extraordinary delay of 48 years remained unexplained and such findings were rightly upheld by Board of Revenue. Accordingly, this writ petition is dismissed.