Allahabad High Court
Lalnjoo vs D.D.C. And Others on 21 December, 2012
Bench: Ran Vijai Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 18
Case :- WRIT - B No. - 67665 of 2012
Petitioner :- Lalnjoo
Respondent :- D.D.C. And Others
Petitioner Counsel :- Pradeep Chandra
Respondent Counsel :- C.S.C.
Hon'ble Ran Vijai Singh,J.
Heard Sri Pradeep Chandra, learned counsel for the petitioner.
In this writ petition, the validity of the order dated 16.8.2012 passed in Revision No. 97 (Lalanjoo Vs. D.D.C. and others) has been challenged. While assailing this order, Sri Pradeep Chandra, learned counsel appearing for the petitioner contends that the order dated 13.1.2009 was passed after due notice to the otherside. In his submissions, a notice was pasted, therefore it was sufficient service on the respondents. He has further contended that highly belated application for recall of the order dated 13.1.2009 was filed which was accompanied with an application under Section 5 of the Limitation Act and there was no explanation for condoning the delay but the Consolidation Officer has not only condoned the delay but also recalled the order dated 13.1.2009. The petitioner filed revision that too has been dismissed without addressing on the question of service as well as limitation. In his submissions, the orders impugned are perfectly illegal and deserves to be quashed.
I have heard learned counsel for the petitioner and perused the record of writ petition.
The facts giving rise to the case are that it appears an order was passed by the Consolidation Officer on 13.1.2009 in Case No. 935/2008-09 under Section 9-A (2) of U.P. Consolidation of Holdings Act, 1953 in between Lalnjoo (the petitioner) and State by which the objection of the petitioner was allowed and the existing boring over Plot No. 1091/1, was directed to be recorded in the name of the petitioner by fixing its valuation Rs.
15000/-. For recall of the aforesaid order, an application was filed along with an application for condonation of delay by the respondents on the ground that they are the co-owner of the bore and without there being any notice to them, the order dated 13.1.2009 was passed. The Consolidation Officer has condoned the delay and recalled the order dated 13.1.2009. Challenging the aforesaid order, the petitioner has filed revision that has been dismissed by the Deputy Director of Consolidation by the impugned order.
Sri Chandra has contended that the ntoice was pasted therefore it was sufficient service on the respondents and it was not open to the Consolidation Officer to recall this order by treating it exparte. In his submissions, the order passed by C.O. is without jurisdiction as consolidation authorities/courts have no power to review its own order.
I have heard learned counsel for the petitioner and also gone through the order passed by the C.O. and the exact words used for pasting the notice on which Sri Chandra has contended that the otherside was dully noticed. For appreciation, aforesaid line noticed by the C.O. is reproduced hereinunder :-
vkns'k ds iwoZ lg [kkrsnkjks dks tkjh lwpuk pLik gS A
From the perusal of the aforesaid line, the place of pasting of notice is not clear. However, it appears that the notice was pasted on some register maintained by the court's office for purposes of records of sending notice and it has no relevance with the pasting of the notice on the house of respondents. Therefore, it cannot be said to be sufficient service on the respondents and even if it is assumed that the notice pasted was on the door of the respondents, it will not be treated to be sufficient service unless the satisfaction is recorded by the court/authority concerned that the service is sufficient, therefore
the submission of Sri Chandra in this regard appears to be misconceived. Otherwise also the service of the notice on the respondents is a question of fact and once the C.O. has recorded a finding that there was no service on the respondents, it cannot be interfered with under article 226 of the Constitution unless the finding is perverse, which in my considered opinion is not.
So far as the submissions with regard to the condonation of delay is concerned, in this regard also it is well settled that once the delay has been condoned meaning thereby the Court has exercised positive discretion in condoning the delay and the exercise of this kind of discretion should not be interfered by the higher court particularly the revisional court unless the delay has been condoned totally on non-existing ground or without there being any explanation for the simple reason that the purpose of establishment of the court is to impart substantial justice to the parties and not to close the door of justice on technicalities, therefore this ground is also unsustainable. Reference may be given to the judgment of the Apex Court in State of Bihar and others Vs. Kameshwar Singh and others reported in JT 2000 (5) 389 where the Apex Court has observed as under :-
"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".
The matter may be examined from another angle also, the order dated 13.1.2009 which was passed on the restoration application was challenged by the petitioner in revisional jurisdiction. Section 48 (1) of U.P. Consolidation of Holdings Act, 1953 provides a remedy of filing revision to a party against any order, other than an interlocutory order. The explanation 2 of Section 48 defines interlocutory order which means such order deciding any matter arising in such case or proceeding or collateral thereto as does not have the effect to finally disposing of such case or proceeding. This Court in the case of Lalji Vs. D.D.C. and others (Writ Petition No. 44754 of 2012 decided on 5.9.2012) has held that an order restoring the case on its original number will not fall in the ambit of final order and it will remain interlocutory order, therefore in view of Sub-section (1) of Section 48 of the Act, the revision itself was not maintainable. There is no merit in this case.
The writ petition is dismissed.
Order Date :- 21.12.2012
Pratima
