Allahabad High Court
Devnarayan vs Deputy Director Of ... on 2 August, 2022
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 7
Case :- WRIT - B No. - 459 of 2022
Petitioner :- Devnarayan
Respondent :- Deputy Director Of Consolidation, Ambedkarnagar And Others
Counsel for Petitioner :- Yogesh Singh
Counsel for Respondent :- C.S.C.,Prabhakar Tiwari
Hon'ble Abdul Moin,J.
1. Heard Sri Yogesh Singh, learned counsel for the petitioner, learned Standing Counsel for respondent nos.1 and 2 and Sri Prabhakar Tiwari, learned counsel for respondent no.3.
2. Instant petition has been filed challenging the order dated 19.04.2022, a copy of which is Annexure-1 to the petition, passed by respondent no.1 by which the revision preferred by the petitioner has been dismissed. Also under challenge is the order dated 03.04.2017, a copy of which is Annexure-2 to the petition, passed by respondent no.2 by which the delay in filing the appeal has been condoned and thereafter the matter has been listed to be heard on merits.
3. The sole contention of learned counsel for the petitioner is that initially the appellate court vide the impugned order dated 03.04.2017 has condoned the delay of approximately 36 years in filing of the appeal by the private respondents which could not have been done as valuable rights had been acquired by the petitioner in the interregnum period. He also contends that the appellate court has simply accepted the plea raised on behalf of the private respondents of there being a fraud committed and has condoned the delay but has not gone into the aspect of the matter as to whether actually any fraud was committed so as to entertain the appeal and that too after a period of 36 years. Being aggrieved, he had filed a revision and even the revisional court has not considered this aspect of the matter and hence the instant petition.
4. Learned counsel for the petitioner elaborating his arguments states that in case the appeal was sought to be filed by the private respondents after a period of 36 years on the ground of any fraud being committed then it was the duty of the appellate court to have gone into the aspect of any actual fraud having been committed so as to condone the delay of approximately 36 years in filing of the appeal. He contends that this aspect of the matter has not been gone into by the appellate court at any stretch of time and the delay has been condoned and upon the revision being filed aggrieved against the said order even the revisional court has not cared to go into that aspect of the matter while dismissing the revision and thus both the orders merit to be quashed.
5. On the other hand, Sri Prabhakar Tiwari, learned counsel for respondent no.3, vehemently argues that a perusal of the order passed by the appellate court would itself indicate that the aspect of fraud prima facie has been observed for the purpose of condoning the delay. He also contends that the Apex Court in the case of Collector, Land Acquisition, Anantnag and another vs. Mst. Katiji and others-(1987) 2 SCC 107 has categorically held that a liberal approach should be adopted in condoning the delay on the principle that ordinarily a litigant does not stand to benefit by lodging an appeal late and refusing to condone the delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. He also contends that a perusal of the order passed by the appellate court would indicate that various judgments of this Court as well as Apex Court have been considered while condoning the delay and as such there is no illegality or infirmity in the impugned order. He also contends that the aspect of there being fraud prima facie has also been observed by the revisional court in its order dated 19.04.2022 and thus there is no infirmity or illegality in both the impugned orders.
6. Having heard learned counsel for the parties and having perused the records, what is apparent is that an appeal was filed by private respondent no.3 after a period of almost 36 years. The ground taken was that fraud has been committed whereby in the disputed piece of land, despite he having been shown as the sole owner, the names of his brothers were added allegedly on the basis of compromise which was never entered into by him. The appellate court, considering the allegation of there being prima facie fraud having been committed and placing reliance on certain judgments of the Apex Court, condoned the delay and upon a revision being filed by the petitioner, the same has also been dismissed.
7. It is settled proposition of law that the discretion of a court to condone the delay should not be lightly interfered with by a superior court. In the instant case, what the Court finds is that both the appellate court and the revisional court have considered as to why the delay has been condoned, of which one of the grounds is of an allegation of fraud. Even otherwise, the Apex Court in the case of Mst. Katiji (supra) has categorically held that a liberal approach should be adopted in condoning the delay on the principle that ordinarily a litigant does not stand to benefit by lodging an appeal late and refusing to condone the delay can result in a meritorious matter being thrown out at the very threshold. The appellate court has condoned the delay and has listed the matter for adjudication of the issues that have been raised by the private respondent in which the petitioner would have ample opportunity of appearing and arguing the matter even as to whether any fraud etc. has been committed or not.
8. As regards the argument of learned counsel for the petitioner that both the appellate court and the revisional court have not given a specific finding of fraud, suffice to say that the matter is still subjudice before the appellate court. It was only for the purpose of considering the application for condonation of delay that a prima facie view was expressed by the appellate court while condoning the delay. The aspect of the matter as to whether any actual fraud has been committed is still to be gone into by the the appellate court which would be seen after hearing the parties concerned. Thus, the said ground being misconceived is rejected.
9. Accordingly, keeping in view the aforesaid discussions, no case for interference is made out with the impugned orders dated 19.04.2022 and 03.04.2017.
10. However, considering that as the matter is extremely old, it is provided that the appellate court shall proceed to decide the case on merits after hearing all the parties concerned in accordance with law, provided there is no legal impediment, within a period of six months from the date a certified copy of this order is received.
11. Needless to mention that all the parties shall cooperate in disposal of the appeal before the court below.
12. Till the appeal is decided, status quo as of today shall be maintained by the parties over the land in dispute.
13. The writ petition is disposed of.
Order Date :- 2.8.2022
A. Katiyar
