Allahabad High Court
Ajay Pundir And 2 Others vs Deputy Director Of Consolidation ... on 6 July, 2018
Bench: Rajiv Joshi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 22
Case :- WRIT - B No. - 4339 of 2018
Petitioner :- Ajay Pundir And 2 Others
Respondent :- Deputy Director Of Consolidation And 4 Others
Counsel for Petitioner :- Saurabh Kumar,Pravesh Kumar
Counsel for Respondent :- C.S.C.
Hon'ble Rajiv Joshi,J.
This writ petition has been filed for quashing the order dated 28.5.2018 passed by the Deputy Director of Consolidation by which revision filed by the petitioners has been dismissed as not maintainable as well as the order dated 5.5.2018 passed by the Settlement Officer Consolidation, whereby it is directed that the application for condonation of delay as well as the appeal will be decided simultaneously.
The relevant facts as reflect from the record that some objections under Section 9A (2) of U.P. Consolidation of Holdings Act were filed by the petitioners as well as respondent No.5. The said objection were decided on the basis of compromise vide order dated 28.12.2011 passed by the Consolidation Officer. Against the said compromise order, an appeal was filed by respondent No.5 after 7 years on 24.4.2018 along with an application for condonation of delay under Section 5 of the Limitation Act, before the Settlement Officer Consolidation.
The petitioners raised an objection before the Settlement Officer Consolidation to the effect that since the appeal as highly time barred, therefore, the application under Section 5 should be decided first. The Settlement Officer Consolidation by the order dated 5.5.2018 has directed that both the application under Section 5 of the Act as well as the appeal will be be heard together. Against that order, the petitioners filed a revision, which has been dismissed on 28.5.2018 with the observation that order challenged in the revision is an interlocutory order against which revision is not maintainable.
I have heard the learned counsel for the petitioners and perused the record.
It is well settled that until and unless the application for condonation of delay under Section 5 of the Limitation Act is decided, the appeal is defective and incompetent. Therefore, the application for condonation of delay has to be decided first and if the same is allowed, only then the appeal becomes competent to be entertained.
In view of the aforesaid settled legal position, a direction is issued upon the Settlement Officer Consolidation to decide the application for condonation of delay under Section 5 of the Limitation Act filed by the respondent first and then to proceed with the appeal.
This order has been passed without issuing any notice to private party-respondent No.5 as no prejudice is likely to be caused to the respondent No. 5, in case application for condonation of delay is decided first and thereafter the appeal is decided. However, liberty is granted to the respondent No. 5 to file an application for recall of this order, if this order in anyway is prejudicial to her rights.
With the above observation, the writ petition is disposed of finally.
Order Date :- 6.7.2018
Akbar
