Ram Lal vs Deputy Director Of ...
2021 Latest Caselaw 11170 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 

 

 
Court No. - 20
 

 
Case :- CONSOLIDATION No. - 22410 of 2021
 
Petitioner :- Ram Lal
 
Respondent :- Deputy Director Of Consolidation,Sultanpur & Anr.
 
Counsel for Petitioner :- Prabhat Kumar,Vinod Kumar
 
Counsel for Respondent :- C.S.C.,Ajay Pratap Singh 'Vatsa'
 

 
Hon'ble Ravi Nath Tilhari,J.

1. Heard Sri Prabhat Kumar, learned counsel for the petitioner and Sri Ajay Pratap Singh ''Vatsa', learned counsel for the opposite party No.2 and Dr. Krishna Singh, learned Standing Counsel for the State.

2. This petition has been filed challenging the order dated 04.08.2021 passed by the Deputy Director of Consolidation, Sultanpur in Revision No. 1171, Ram Keval Vs. Ram Lal, Annexure No. 1 to the petition.

3. In the consolidation proceedings, the Consolidation Officer passed an order dated 04.05.1983 on the basis of some compromise said to be between the parties or their predecessor. Ram Sumer, grand father of the petitioner never challenged the order dated 04.05.1983, during his life time. On his death, the petitioner was mutated on 2.1.1994, in place of Ram Sumer as the name of Ram Sumer had continued in the revenue records. The petitioner's father had predecreed Ram Sumer. Later on, in the proceedings under Rule 109-A of the U.P. Consolidation of Holdings Act, 1954 the order dated 04.05.1983 was implemented, and the name of the petitioner was deleted. The petitioner filed appeal before 25.03.2021, after about 38 years of the order dated 04.05.1983 with the prayer for condonation of delay inter alia on the grounds that the order dated 04.05.1983 was not in his knowledge and his name had been mutated on the death of his grand father on 2.1.1994.

4. The Settlement Officer of Consolidation, by order dated 25.03.2021 condoned the delay and directed the matter to be listed for hearing on merits. The opposite party No.2 filed revision, which has been allowed by the Deputy Director of Consolidation by order dated 04.08.2021 against which, the present petition has been filed.

5. Sri Prabhat Kumar submits that the Settlement Officer of Consolidation having condoned the delay in the exercise of its discretion, the Deputy Director of Consolidation is legally not justified in interfering with such direction, which was to advance substantial justice, in the exercise of revisional jurisdiction under Section 48 of the Act. He has placed reliance on the judgment of Hon'ble the Supreme Court in the case of Shanti Prasad Gupta Vs. Deputy Director of Consolidation, Camp at Meerut reported in 1984 RD page 382 (SC). He further placed reliance on judgment of this Court in the case of Paras Nath Vs. Deputy Director of Consolidation, Basti reported in 2002 (93) R.D. 764 in support of his contention that the order condoning the delay is an interlocutory order and the revision was not maintainable. He has further placed reliance in the case of State of Jharkhand and others Vs. Ashok Kumar Chokhani and others (2009) 2 SCC667 in support of his contention that while deciding an application for condonation of delay in filing the appeal, the merits of the case could not be gone into.

6. Sri Ajay Pratap Singh ''Vatsa', submits that the delay was inordinate, of 38 years, in filing the appeal. The petitioner's grand father Ram Sumer did not challenge the order dated 4.5.1983 during his life time. The order dated 4.5.1983 was recorded in revenue records in the year 1994 but inspite thereof, the petitioner did not challenge the same for 27 years. There was no sufficient cause to condone the delay, but the Settlement Officer of Consolidation not only allowed the application without recording any finding in favour of the petitioner on the point of sufficient cause, but also made vital observations on the merits of the case and as such the order has been rightly set aside by the Deputy Director of Consolidation.

7. I have considered the submissions advanced by learned counsels for the parties and perused the material on record.

8. The Deputy Director of Consolidation has set aside the order of the Settlement Officer of Consolidation on the ground that Ram Sumer during his life time did not challenge the order dated 04.05.1983. It has also recorded that for the cause of delay as mentioned therein, that the petitioner was minor in the year 1983, no evidence of minority was adduced.

9. Learned counsel for the petitioner could not answer the query of the Court about the age of the petitioner in 1983. However, perusal of the affidavit dated 13.09.2021 in support of the writ petition mentions the age of the petitioner as 79 years.

10. I have considered the order passed by the Settlement Officer of Consolidation and a perusal thereof shows that the Settlement Officer of Consolidation was even not satisfied with the cause shown, as would appear from the following, part of the order dated 25.03.2021: which reads as under:

"fe;kn ds lEcU/k esa mHk;i{kksa ds dFku ls Li"V gS fd vihydrkZ }kjk foyEc ds fcUnq ij ljljh rkSj ls dkj.k izLrqr fd;k x;k] izfroknh dk dFku lgh gS fd foyEc dh tkudkjh dk fnukad vihy esa vafdr ugha fd;k x;k gSA "

11. It is a well settled proposition of law that existence of sufficient cause is sine quo non, for condonation of delay. In absence of being any finding that the cause shown is sufficient the delay cannot be condoned. It is true that length of delay does not matter, but what matters is, the existence of sufficient cause and for condoning the delay a specific finding must be recorded that the cause shown is sufficient. It, lacks in the order of the Settlement Officer of Consolidation. The Settlement Officer of Consolidation has specifically written on the point of delay that the cause shown was casual one and even the date of knowledge of the order dated 04.05.1983 was not disclosed by the petitioner. Even then the Settlement Officer of Consolidation has condoned the delay of 38 years in filing the appeal from the date of the order and 27 years from 1994.

12. In P. K. Ramachandran Vs. State of Kerala, AIR 1998 SC 2276 the Hon'ble Supreme Court has held that, "Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds."

13. In Pundlik Jalam Patil (dead) by LRS. Vs. Executive Engineer, Jalgaon Medium Project and Anr. (2008) 17 SCC 448, in para 17 of the judgment, the Hon'ble Supreme Court held that, "...The evidence on record suggests neglect of its own right for long time in preferring appeals. The court cannot enquire into belated and state claims on the ground of equity. Delay defeats equity. The court helps those who are vigilant and "do not slumber over their rights."

14. In Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai, 2012 (5) SCC 157, in para 18 of the judgment, the Supreme Court held as under:

"What needs to be emphasised is that even though a liberal and justice oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost. What colour the expression 'sufficient cause' would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay. In cases involving the State and its agencies/ instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and / or its agencies /instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest."

15. In view of the aforesaid judgments, it is settled in law that even though a liberal and justice oriented approach is required to be adopted in exercise of powers under Section 5 of the Limitation Act, the Courts can not be oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment passed quite long ago against which no remedy was availed within the period of limitation, or even thereafter, within the reasonable period. Although the length of delay by itself cannot be a ground to reject the application for condonation of delay there must be sufficient cause for condonation of delay, and particularly where such application is filed after more than 38 years from the date of the order.

16. In Shanti Prasad Gupta (supra), the Hon'ble Supreme Court held that whether or not there is sufficient cause for condonation of delay, is a question of fact dependent upon the facts and circumstances of a particular case, and the proposition is well settled that when order has been made under Section 5, Limitation Act by the lower court in the exercise of its discretion allowing or refusing an application to extend time, it cannot be interfered with in revision, unless the lower court has acted with material irregularity or contrary to law or has come to that conclusion on no evidence. It has been held that in exercise of revisional jurisdiction under Section 48 of Consolidation of Holdings Act, the Deputy Director of Consolidation cannot lightly interfere with the discretion in the exercise of Consolidation Officer in favour of condonation of delay.

17. In view of the order of Settlement Officer of Consolidation condoning the delay, in the absence of any finding that the cause shown is sufficient and also that the cause shown was casual one, as also in view of the judgment in the case of Shanti Prasad Gupta (supra), finding that the Settlement Officer of Consolidation acted with material irregularity or contrary to law and condoned the delay on no evidence, the submission of the petitioner's counsel that in exercise of revisional jurisdiction the Deputy Director of Consolidation, could not interfere with the discretion exercised by the Settlement Officer of Consolidation cannot be accepted. The proposition of law in Shanti Prasad (supra) is that in the exercise of revisional jurisdiction the discretion by the court below in condoning the delay cannot be lightly interfered but where the court while condoning the delay or not condoing the delay, acted with material irregularity or contrary to law or on no evidence to support the cause for condonation of delay such order can be interfered with.

18. In the case of Ashok Kumar (supra), it has been observed that it is well settled that while deciding an application of condonation of delay in filing the appeal, the merits of the case could not be gone into. This proposition of law applies with respect to the order passed by the Settlement Officer of Consolidation as well, as a perusal thereof, shows that while condoning the delay the Settlement Office of Condonation entered into the merits of the case, as according to it, there being four brothers and the property being ancestral it should have been divided equally amongst them.

19. In the case of Paras Nath (supra), it has been held by this Court that against an interlocutory order no revision is maintainable. Interlocutory order is an order, which does not touch the merit of the case and which does not prejudice any party, while arguing the case on merits. It was found, therein, that by condonation of delay the merits of the case had not been touched by the Settlement Officer Consolidation. From reading of Paras Nath (supra) it is evident that the interlocutory order is such order by which the delay is condoned but without touching the merits of the case. In the present case, as mentioned above, the Settlement Officer of Consolidation while condoning the delay has touched the merits of the case, and, therefore, the order passed by the Settlement Officer of Consolidation is not be an interlocutory order.

20. For the aforesaid reasons, I do not find any illegality in the order of the Deputy Director of Consolidation. The order passed by the Settlement Officer of Consolidation was not sustainable and therefore this Court is not inclined to interfere in the matter. However, the Court finds that the courts below ought not to have made any observation on the merit of the case. Therefore, it is observed that any observation made by the Deputy Director of Consolidation or the Settlement Officer of Consolidation in their respective orders on the merits of the claim of the parties shall not be taken into consideration by any authority.

21. The writ petition is dismissed with the aforesaid observation.

Order Date :- 1.10.2021

Arvind

(Ravi Nath Tilhari,J.)