Learned counsel for the petitioner is permitted to implead concerned Gaon Sabha as respondent no. 7 and serve the copy of the writ petition to Sri Rajesh Yadav, learned counsel for the Gaon Sabha. Learned counsel for the petitioner is also permitted to correct the description of respondent no. 2.
Heard Sri Kunal Ravi Singh along with Smt. Manjari Singh, learned counsel for the petitioner, learned Standing Counsel for the State respondents and Sri Rajesh Yadav, learned counsel for the Gaon Sabha.
By means of this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the orders dated 31.12.2013 passed by the Sub-Divisional Officer Sadar, Muzaffarnagar in Case No. 10/2006-07 (Birbal Singh Vs. Naresh Chand Jain and others) and order dated 29.1.2014 passed by the Additional Commissioner (Adminstration) Saharanpur Division, Saharanpur in Revision No. 28/2013-14 (Birbal Singh Vs. Smt. Rahisa Begum and others).
While assailing the impugned orders, learned counsel for the petitioner contends that both the courts below have erred in rejecting the petitioner's objection to decide the application for condonation of delay first and in case, the delay is condoned, only thereafter decide the recall application.
The facts giving rise to this case are that the petitioner has filed Suit No. 10/2006-07 (Birbal Singh Vs. Naresh Chand Jain and others) under Section 229-B of U.P.Zamindari Abolition and Land Reforms Act, 1950 before the Sub-Divisional Officer, Muzaffarnagar. In the suit, there were thirty defendants. The notices were issued and out of thirty, twenty six have appeared and many of them have filed their written statement including the Gaon Sabha. The present respondents no. 3 to 6 did not appear before the court and the suit was decreed exparte on 18.9.2008.
After sometime, four separate applications were filed under Order 9, Rule 13 of the Code of Civil Procedure in between 2011 to 2013 for setting aside the judgment and decree dated 18.9.2008. All the applications were barred by time, therefore applications were also filed under Section 5 of Limitation Act, 1963.
Learned counsel for the petitioner contends that the petitioner has filed an objection to Section 5 applications stating therein that delay in filing the restoration application is deliberate for the reason that respondents, inspite of due notice, have not appeared before the court and want to frustrate the fruit of the decree. Therefore, the delay condonation application be decided first and in case, delay is condoned, only thereafter the restoration application be decided on merit.
The Sub-Divisional Officer has rejected the petitioner's objection, by observing that both the applications shall be decided simultaneously, vide order dated 31.12.2013.
Aggrieved petitioner has filed revision against the aforesaid order, that has also been dismissed with the following observations :-
fuxjkuhdrkZ dk dFku gS fd vkns'k fnukad 18&09&2008 ds fo:) o"kZ 2013 esa le;ckf/kr iquLFkkZiu izkFkZuk i= izLrqr fd;k x;k gS] nsjh ds lEcU/k esa loZizFke /kkjk&5 fe;kn vf/kfu;e ds izkFkZuk i= dk fuLrkj.k fd;k tkuk Fkk fdUrq voj U;k;ky; }kjk ,slk u dj fof/kd =qfV dh x;h gSA fuxjkuhdrkZ ds bu dFkuksa esa dksbZ cy izrhr ugh gksrk gS D;ksafd iquLFkkZiu izkFkZuk i= ,oa /kkjk&5 fe;kn vf/kfu;e ds izkFkZuk i=ksa ij ,d lkFk gh lquokbZ dh tkuh U;k;ksfpr izrhr gksrh gS rkfd izdj.k dk fuLrkj.k xq.knks"k ds vk/kkj ij fd;k tk lds rFkk i{kdkjksa dks leqfpr U;k; izkIr gks ldsA voj U;k;ky; }kjk vkns'k fnukad 31&12&2013 ds }kjk izkFkZuk i= fnukad 25&06&2013 dk fuLrkj.k fd;k x;k gSA While assailing the impugned orders, Sri Singh learned counsel for the petitioner contended that once an application under Order 9, Rule 13 of the Code of Civil Procedure has become time barred, it has conferred a substantial right to the petitioner and unless the delay is condoned, the application filed under Order 9, Rule 13 of the Code of Civil Procedure cannot be decided. In support of his submissions, he has placed reliance upon the judgment of this Court in Prabhu and another Vs. Deputy Director of Consolidation, Ghazipur and others 2013 (1) ADJ 554. He has further contended that assuming the delay is condoned and the court proceeds to decide the application filed under Order 9, Rule 13 of the Code of Civil Procedure, immediately after condonation of delay that would affect the petitioner's substantial right as an order condoning the delay or refusing to condone the delay is revisable and the petitioner's right of revision may be taken away.
Learned counsel for the petitioner further contended that from the perusal of the observation made by the revisional court, it transpires that the revisional court has expressed its opinion to decide the restoration application on merit, so 4 that the substantial justice may be done to the parties and in view of the observation made by the revisional court, there is no escape before the court below except to allow the delay condonation application.
I have heard learned counsel for the petitioner and perused the record of the writ petition. I find substance in the submission of learned counsel for the petitioner.
Normally the court would have issued the notice to the respondents but considering the facts that inviting a counter affidavit would mean to keep the writ petition pending and the anxiety of the court below was to decide the case on merit. The writ petition is taken up for final disposal with the liberty to the otherside to seek recall, modification or variation of the order, which is going to be passed.
It is not in dispute that the petitioner has filed suit under Section 229-B of the Act, which was decreed on 18.9.2008. From the perusal of the judgment, it also transpires that there were thirty defendants.The notices were issued to all of them and out of them, twenty six persons have appeared. Amongst those twenty six, many of them have filed written statement including the Gaon Sabha. The present respondents no. 3 to 6 did not appear even before the court below inspite of the notice. Against them, suit was decreed on 18.9.2008 in absence of them. After lapse of three to five years i.e. in between 2011 to 2013, applications under Order 9, Rule 13 were filed. Some of the applications were barred by time by three years and some of them by five years.
Article 123 of the Limitation Act, 1963 provides the limitation of thirty days to set aside the decree passed 5 exparte or to re-hear an appeal decreed or heard exparte. The limitation is of thirty days from the date of the decree or where the summons or notice was not duly served, when the applicant had acquired the knowledge of the decree.
Admittedly, the applications were filed much after expiry of thirty days from the date of decree, what was passed in the year 2008. It is settled that once the statute provides the limitation and if any person approaches the court after expiry of period of limitation for redressal of his grievance, then in that eventuality an application under Section 5 of Limitation Act has to be filed, which is meant for extending the period of limitation, in other words, to condone the delay in filing the application/appeal/revision etc. This Court in the case of Prabhu and another (supra) has held as under :-
In view of foregoing discussions, the controversy can be summarized as under:-
(i) When the statute provides limitation for approaching the Court and a person approaches the Court after the expiry of the period of limitation, then he has to approach the Court along with an application under Section 5 of the Limitation Act praying extension of period of limitation or to condone the delay in approaching the Court.
(ii) Once the application under Section 5 of the Limitation Act is filed and unless the delay is condoned, no order can be passed on merit
(iii) The delay cannot be condoned without having the version of otherside and for that, otherside is required to be noticed and heard.
Although no order has been passed on the delay condonation application, therefore it cannot be said that the 6 delay condonation application can be rejected or allowed, but considering the submission of learned counsel for the petitioner that in case, delay is condoned and simultaneously the application filed under Order 9, Rule 13 is taken up for final disposal, the petitioner's right to challenge the order condoning the delay by way of revision shall be forfeited. This Court in the case of Bodda Vs. D.D.C. and others (Writ-B No. 5833 of 2013 decided on 1.2.2013) has held that an order condoning the delay or refusing to condone the delay is not an interlocutory order and revision lies against such orders. Therefore, I find substance in the submissions of learned counsel for the petitioner that in case, delay is condoned, he shall be deprived of to challenge the same immediately after passing of order on delay condonation application.
However, sitting under Article 226 of the Constitution of India, I am not inclined to interfere with the order passed by the Sub-Divisional Officer, but it is observed that in case, the Sub-Divisional Officer, after hearing both the sides, comes to the conclusion that delay condonation application deserves to be allowed, in that eventuality, he will postpone the hearing of the applications filed under Order 9, Rule 13 of the Code of Civil Procedure atleast for the period of four weeks so that in case the petitioner desires to challenge the order of condonation of delay, he can avail that remedy.
With the aforesaid observation/direction, this writ petition is disposed of.
Order Date :- 7.3.2014 Pratima