JUDGMENT R.H. Zaidi, J.
1. Heard learned counsel for the parties.
2. By means of this petition filed under Article 226 of the Constitution of India, petitioner prays for issuance of a writ, order or direction in the nature of certiorari quashing the orders dated 22.7.1980 and 4.8.1979, passed by respondent Nos. 1 and 2 respectively.
3. The relevant facts of the case giving rise to the present petition, in brief, are that in the basic year, the name of the petitioner was recorded on the land in dispute. Objection was filed by the contesting respondent Nos. 4 to 9 claiming that they were entitled to the land in dispute, as the petitioner was not the daughter of Jhingur but she was the daughter of Mohan. The petitioner contested the objection filed by respondents and claimed that she was the daughter of Jhingur and was entitled to the land in dispute. It was also asserted that the basic year entry was correct. Parties, produced evidence in support of their cases, oral and documentary. The Consolidation Officer after going through the material on the record, rejected the objection filed by the contesting respondents and maintained the basic year entry by his judgment and order dated 3.4.1976. Challenging the validity of the said order, a highly belated appeal was filed before the Assistant Settlement Officer, Consolidation along with an application under Section 5 of the Limitation Act. The petitioner filed objection to the said application. The Assistant Settlement Officer, Consolidation without applying his mind to the question of limitation, decided the case on merits and allowed the appeal by his judgment and order dated 4.8.1979. The petitioner thereafter filed a revision before the Deputy Director of Consolidation, which was also dismissed by Judgment and order dated 22.7.1980, hence the present petition.
4. It was urged by the learned counsel for the petitioner that the appeal filed before the Assistant Settlement Officer, Consolidation was highly belated. The Assistant Settlement Officer, Consolidation before proceeding to decide the case on merit, should have decided the application for condolation of delay in view of the provisions of Section 3 of the Limitation Act, which applies to the proceedings before the consolidation authorities. The Assistant Settlement Officer, Consolidation having failed to apply his mind to the question of limitation, passed the judgment and order, which is wholly Illegal and without jurisdiction. According to him, similar mistake was committed by the Deputy Director of Consolidation in upholding the order passed by Assistant Settlement Officer, Consolidation by dismissing the revision filed by the petitioner.
5. On the other hand, learned counsel for the contesting respondents submitted that the order passed by the authorities below were quite legal. It was urged that in the counter-affidavit it was stated the delay was explained in accordance with the law, therefore, the writ petition was, according to him. liable to be dismissed.
6. I have considered the submissions made by the learned counsel for the parties.
7. It is well-settled in law that when a suit, application or appeal is filed beyond the period of limitation in view of the provisions of Section 3 of the Limitation Act, it is the duty of the Court or authority to apply its mind to the question of limitation, although limitation has not been taken as a defence by the other side and after disposing of the application for condonation of delay, the Court or authority could pass the order on merit, not otherwise. In the present case, admittedly, the Assistant Settlement Officer, Consolidation did not apply his mind to the question of limitation, which was obligatory upon him in view of the provisions of Section 3 of the Limitation Act, which reads as under :
"3. Bar of limitation.--(1) 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.
(2) For the purposes of this Act
(a) a suit is instituted :
(i) in an ordinary case, when the plaint is presented to the proper office ;
(ii) in the case of a pauper, when his application for leave to sue as a pauper is made ; and
(iii) in the case of a claim against a company which is being wound up by the Court, when the claimant first sends in his claim to the official liquidator ;
(b) any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted :
(i) in the case of a set off, on the same date as the suit in which the set off is pleaded ;
(ii) in the case of a counter claim, on the date on which the counter claim is made in Court ;
(c) an application by notice of motion in a High Court is made when the application is presented to the proper Officer of that Court."
8. In view of the aforesaid provision, as stated above, the application filed under Section 5 of the Limitation Act, by the contesting respondents should have been disposed of by the Assistant Settlement Officer, Consolidation before deciding the appeal on merits. The Assistant Settlement Officer, Consolidation allowed the appeal without condoning the delay, therefore, the order passed by him was wholly illegal and without jurisdiction. The same mistake has been committed by the Deputy Director of Consolidation in upholding the order passed by the Assistant Settlement Officer. Consolidation. In view of the aforesaid facts, this petition deserves to be allowed and the impugned orders are liable to be quashed.
9. This petition succeeds and is hereby allowed. The orders dated 22.7.1980 and 4.8.1979, passed by respondent Nos. 1 and 2, respectively are hereby quashed. The case is remanded to the Assistant Settlement Officer, Consolidation for decision afresh in the light of the observations made above. The Assistant Settlement Officer. Consolidation shall decide the appeal expeditiously preferably within a period of four months from the date a certified copy of this order is communicated to him. after affording opportunity of hearing to the parties concerned and in accordance with the law.