Heard Shri Husain Sayeed Zamal Ahmad, Advocate holding brief of Shir S. Mirza, learned counsel for the petitioner, Shri R.A.Khan, learned counsel for the respondent and perused the record.
By means of the present writ petition, the petitioner has challenged the impugned order dated 10.1.1994 (Annexure No.4) passed by the opposite party no.9/Additional Collector/Chief Revenue Officer, Bahraich.
Facts in brief of the present case are that the controversy involved in the present case relates to Gata No.1870/6.82 situated in village Chhapariya, Pargana, Tehsil and District-Bahraich.
In respect of the land in dispute, the matter came up before the opposite party no.9/Additional Collector/Chief Revenue Officer, Bahraich in a revision under Section 48 of the U.P. Consolidation of Holdings Act along with an application under Section 5 of the Limitation Act.
By means of the order dated 10.1.1994 as contained in Annexure No.4 to the writ petition, opposite party no.9/Additional Collector/Chief Revenue Officer, Bahraich heard the matter in regard to the condonation of delay/maintainability and after hearing the parties on the said issue, he reserved the order on the said points and directed that the parties shall proceed to argue the revision on merit in the interest of justice.
Aggrieved by the order dated 10.1.1994, the present writ petition has been filed by the petitioner before this Court.
Shri Husain Sayeed Zamal Ahmad, Advocate holding brief of Shri S. Miraza, learned counsel for the petitioner has challenged the impugned order on the ground that the same is illegal and without jurisdiction as opposite party no.9 has acted in most illegal and arbitrary matter thereby not deciding the matter in regard to the condonation of delay/maintainability first. So, the impugned order is in contravention to the provisions as provided under Section 3 of the Limitation Act, 1963, in support of his argument, he has placed reliance on the judgment given by this court in the case of Narsing Rao and others vs. Deputy Director of Consolidation, Deoria and others 1982 (1) R.R. 283 and Ram Baran vs. D.D.C., Gonda and others 1987 RD page 91.
Accordingly, it is submitted by learned counsel for the petitioner that the impugned order being contrary to law, liable to be set aside.
Shri R.A.Khan, learned counsel for the respondent while defending the impugned order submits that the order dated 22.1.1984 had been obtained by the petitioner by way of fraud. So, the action on the part of the opposite party no.9/Additional Collector/Chief Revenue Officer, Bahraich thereby directing the parties to argue the matter on merit, after hearing them on the point of limitation/maintainability is not illegal order, hence, the present writ petition is liable to be dismissed.
I have heard learned counsel for the parties and perused the record.
As per admitted facts of the present case, the order dated 22.1.1984 passed by Settlement Officer of Consolidation, Bahrich was challenged by way of filing a revision under Section 48 (1) of the Act along with an application for condonation of delay and before the said authority, the point in regard to the condonation of delay as well as maintainability of revision have been taken by the petitioner who are respondents, after hearing on the said point, opposite party no.1 reserved the verdict on the said points and directed the parties that to argue the revision on merit, in order to decide the controversy in the interest of justice. The submission made by learned counsel for the petitioner that the impugned order passed by opposite party no.9 is contrary to the provisions as provided under Section 3 of the Limitation Act, 1963 has to be examined.
It will be appropriate to go through the provisions as provided under Section 3 of the Limitation Act which provided that subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.
From the provisions of Section 3 of the Indian Limitation Act, it is clear that the same will be operative subject to the provisions of Section 5 of the Act, reads as under:-
"Extension of prescribed period in certain cases. Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period."
Thus by combined reading of Sections 3 and 5 of Act that the application of Section 5 of the Act would arise where any appeal or any application etc. is filed after the prescribed period provided for the said purpose in the statute which governs the field and if the applicant or the application satisfies the Court that he had sufficient cause for not making the appeal or application within such period that is to say the provisions of Section 5 of the Limitation Act must be construed having regard to Section thereof. For filing an application after the expiry of the period prescribed under the Limitation Act or any other special statute, the delay in filing the same can be condoned of provision of Section 5 of the Act applies in the statute under which the application is moved. (See Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker, (1995) 5 SCC 5 and Shantilal M. Bhayani v. Shanti Bai, 1995 Supp (4) SCC 578).
In the case of Narsing Rao and others vs. Deputy Director of Consolidation, Deoria and others 1982 (1) R.R. 283, it has been held as under:-
"Although there is no specific denial and it may be assumed that there was fire in which fires were burn the Deputy Director Consolidation could not entertain the revision becomes barred and it could revive only after the bar was removed by exercise of discretion under Section 5 of Limitation Act."
"Power to entertain revision against order passed by subordinate authorities has been conferred on Director of Consolidation by Section 48 of Consolidation of Holdings Act. Limitation to present such revision by an applicant has been provided by rule 111, framed by State Government in exercise of power conferred on it by clause (r) of sub-section (2) of Section 54 of the Act. Once period of thirty days, provided by this rule expired and no revision was presenced against order of subordinate authority the bar of limitation under Section 5 of Indian Limitation Act arose and the revision was liable to be dismissed unless the period to present the revision was extended and it was admitted after prescribed period because the Director was satisfied that the applicant was prevented by sufficient cause in not presenting the revision within time. Without removal of bar of extension of time the revision could not be entertained and any order passed on merits is nullity and without jurisdiction. It is not a matter of inference or assumption as the order condoning delay has to be tested on anvil of sufficient cause. Learned counsel for opposite party relief on Nanku vs. Assistant Director of Consolidation, 1986 RD 39 and urged that if petitioner did not raise any objection before Deputy Director of Consolidation then it could not be raised in writ petition and it should be deemed that delay has been condoned. Similar argument was raised was held by brother K.P.Singh, J. that in absence of any consideration by Deputy Director whether revision was barred by time could not be presumed that delay was condoned."
In the case of Ram Baran vs. D.D.C., Gonda and others 1987 RD page 91, it has been held as under:-
"It is well settled that any person approaching any authority beyond time has to satisfy it by giving cogent reasons for his absence or the cause due to which he was prevented from filing appeal or revision in time. The concept of sufficient cause is well known. It is true that Section 5 of the Limitation Act has to be construed liberally, but it cannot be given a go-by otherwise the court of law shall cease to be court of law and shall become courts where instead of law the will of the authority shall prevail. See Ram Sunder Singh and others v. Ram Mohan Singh and others (1). In Parsidh Narain Rai v. Dy. Director of Consolidation and others (2), K.P.Singh, J., observed that when a remedy of party is barred by lapse of time, the other party gets valuable right and that right can be negatived only when sufficient cause has been shown in preferring the delayed revision petition. It was further observed that it could not be presumed that the delay in preferring revision was condoned when the revision was allowed on merits by the Deputy Director of Consolidation."
Admittedly it is not in dispute in the present case that the provisions of Section 5 of the Act will apply in the proceedings in question. So, in that event the bar of Section 3 of the Act will not come in operative in the instant matter, if the contesting respondents are able to show/satisfy the Court concerned, in the revision which has been filed at the belated stage after the expiry of statutory period of limitation as provided under the statute/consolidation Act the reason for not filing the same within the period of limitation as provided in the statute because it is well settled the proposition of law that the intention of the legislature cannot be enlarged when the language of the provision is plain and unambiguous. In other words statutory enactments must ordinarily be construed according to its plain meaning and no words shall be added, altered or modified unless it is plainly necessary to do so to prevent a provision from being unintelligible, absurd, unreasonable, unworkable or totally irreconcilable with the rest of the statute. (See M/S Unique Butyle Tube Industries Pvt. Ltd. v. U. P. Financial Corporation and others, 2002 (9) SCALE 778).
Further, in the matter of condonation of delay the Apex Court has constantly held that the pragmatic view should be taken. In the case of Collector, Land Acquisition V. Mst. Kati Ji and others, reported in 1987 (13) ALR 306 (SC) held as follows:
"The legislature has conferred the power to condone delay by enacting section 5 of the Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on "merits". The expression "sufficient cause" employed by the Legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose of the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy."
And such a liberal approach is adopted on principle as it is realized that:
1. Ordinarily, a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this; when delay is condoned, the highest that can happen is that a cause would he decided on merit after hearing the parties.
3. "Every" day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay ? The dectrine must be applied in a rational, common sense and pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side can not claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by restoring to delay. In fact, he runs a serious risk.
6. It must be grapped that the judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so."
In N. Balakrishnan V. M. Krishnamurthy reported in (1998) 7 SCC 133 the Apex Court explained the scope of limitation and condonation of delay, observing as under:
"The primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy for the redress of the legal injury so suffered. The law of limitation is thus founded on public policy."
In Smt. Prabha V. Ram Prakash Kalra reported in 1987 (Suppl.) SCC 338 the Supreme Court took the view that the Court should not adopt an injustice-oriented approach in rejecting the application for condonation of delay.
In Vedabai @ Vaijayanatabai Baburao Patil V. Shantaram Baburao Patil and others reported in 2001 (44) ALR 577 (SC) the Apex Court made a distinction in delay and inordinate delay observing as under:
"In exercising discretion under section 5 of the Limitation Act, the Courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the otherwise will be a relevant factor so the case calls for a more cautious approach...."
In New India Insurance Co. Ltd. V. Smt. Shanti Misra reported in AIR 1976 SC 237, Hon'ble Court held that discretion given by section 5 should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law. The express "sufficient cause" should receive a liberal construction.
In Shakuntala Devi Jain V. Kuntal Kumari reported in AIR 1969 SC 575 the Hon'ble Supreme Court held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of section 5 is proved, the application must not be thrown out or any delay can not be refused to be condoned In O.P. Kathpalia V. Lakhmir Singh reported in AIR 1984 SC 1744 the Hon'ble Supreme Court held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay.
Further Hon'ble the Supreme Court in the case of Haribhai Lakhmanbhai Seedhav Vs. State of Gujarat and to others, 2009 (27) LCD 1645 has also held that the Court should not reject appeal/revision on the ground of delay and the same should be decided on merit.
Accordingly, it is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court.
In view of the decision of the Apex Court it is abundantly clear that while considering the delay condonation application the court has to see the merit of the case also as the law of limitation is not meant to take away the right of Appeal. The courts are meant for imparting justice and not to scuttle the justice on technicalities. The length of delay is also not very much material if there is a substance on merit.
For the foregoing reason, I am of the considered opinion that in the present case, the order dated 10.1.1994 passed by opposite party no.9 needs only is to be modified to the extent that the said authority shall pass an order on an application under Section 5 of the Limitation Act/maintainability of the petition first and, thereafter, proceed to hear the matter in question in view of the observations made herein above.
In the result, the writ petition is partly allowed and the impugned order dated 10.1.1994 passed by opposite party no.9 is modified only to the extent that the said authority shall pass an order in revision in respect of the matter relating to the condonation of delay under Section 5 of the Limitation Act/maintainability of the writ petition first.
Order Date :- 7.12.2012 Mahesh