Bharat Lal And 4 Others vs State Of U.P. And 6 Others
2023 Latest Caselaw 12836 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 18
 

 
Case :- WRIT - B No. - 1126 of 2023
 

 
Petitioner :- Bharat Lal And 4 Others
 
Respondent :- State Of U.P. And 6 Others
 
Counsel for Petitioner :- Pradeep Singh Sengar
 
Counsel for Respondent :- C.S.C.,Pramod Kumar Pandey
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard learned counsel for the petitioner, learned Standing Counsel for the State-respondents and Mr. Promod Kumar Pandey, learned counsel for the contesting respondent no.4.

2. Respondent nos.5 to 7 are stated to be proforma respondents, as such, notice to respondent nos.5 to 7 are dispensed with.

3. With the consent of learned counsel for the parties, the writ petition is being heard and disposed of finally without inviting counter affidavit.

4. Brief facts of the case are that one Ram Awadh (Father-in-law of Hirday Narayan Upadhyay) has executed a registered Will deed in favour of Hirday Narayan Upadhyay in respect to plot of chak no.105. During consolidation operation, Hriday Narayan Upadhyay initiated proceeding under Section 12 of Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as "Act of 1953"). Respondent no.4 ( Tejnarayan Upadhyay) claiming himself to be legal heir of deceased Ram Awadh Updhyay and applied for mutation in his favour before the Assistant Consolidation Officer. Before the Consolidation Officer, both parties have entered into compromise, accordingly, Assistant Consolidation Officer vide order dated 24.8.1984 decided the aforementioned proceeding under Section 12 of Act of 1953 by which the name of deceased Ram Awadh Updhyay was expunged and name of Hriday Narayan Upadhyay was ordered to be recorded on the basis of Will deed as well as the application filed by respondent no.4 was rejected. In pursuance of the order of the Assistant Consolidation Officer dated 24.8.1984, the records were corrected and C.H. Form 45 was prepared accordingly. Hriday Narayan Upadhyay had died and he was succeeded by his legal heir. Hirday Narayan Upadhyay had executed a sale deed of the plot in dispute in favour of Phoolmati Devi (petitioner's mother) on 20.2.1991. Respondent no.4 after 36 years from the date of passing of the order by Assistant Consolidation Officer dated 24.8.1984, filed an appeal under Section 11 (1) of Act of 1953 along with application under Section 5 of Limitation Act on 17.3.2020. Petitioners filed an objection to the application filed under Section 5 of Limitation Act stating that there is inordinate delay in filing the appeal under Section 11 (1) of Act of 1953 as well as there is no proper and satisfactory explanation for delay of 36 years, as such, the appeal is liable to be dismissed on the ground of limitation. Settlement Officer of Consolidation vide order dated 9.12.2022 granted benefit of Section 5 of Limitation Act and fixed the appeal for decision on merit. Against the order dated 9.12.2022, petitioners filed revision under Section 48 of Act of 1953 which has been dismissed by the revisional Court, hence this writ petition.

5. Learned counsel for the petitioners submitted that the Assistant Consolidation Officer has decided the objection under Section 12 of Act of 1953 on the basis of compromise entered into between the parties in accordance with law in the year 1984. He further submitted that the final record during consolidation has been prepared in pursuance of the order passed by the Assistant Consolidation Officer and the property has been sold out also to the other persons, as such, the right has been created in favour of others, accordingly, the filing of appeal after 36 years is abuse of process of law. He next submitted that respondent no.4 was fully aware about the order passed in the year 1984 but the appeal has been filed after 36 years without satisfactory explanation in the application under Section 5 of Limitation Act. He also submitted that even in the application under Section 5 of Limitation Act, there is no pleading to the effect that on what date the petitioners became major and only general allegation has been setup and the appellate Court by passing cryptic order has condoned the delay of 36 years. He placed reliance upon the judgment of Apex Court reported in AIR 2010 SC 3043, Balwant Singh (Dead) Vs. Jagdish Singh & Others in order to demonstrate that if the parties are aware about the proceeding of the order then liberal view cannot be taken in the condonation of delay. He next submitted that impugned order be set aside and the order passed by the Assistant Consolidation Officer be maintained.

6. On the other hand, Mr. Pramod Kumar Pandey, learned counsel appearing on behalf of respondent no.4 submitted that by the appellate order only the delay in filing the appeal has been condoned, as such, no interference is required against the order condoning the delay in filing the appeal. He next submitted that the order condoning the delay is discretionary in nature, as such, jurisdiction under Article 226 of the Constitution of India should not be exercised. He further placed reliance upon the judgment of this Court reported in AIR 1987 SC 1353, Collector, Land Acquisition Anantnag and Another vs. Mst. Kantiji & Others in order to demonstrate that liberal view should be taken in the delay condonation matter. He next submitted that the order has been passed by the Assistant Consolidation Officer on the basis of fraudulent compromise, as such, the same is to be examined afresh. He next submitted that the appellate Court will examine the entire issue on merit as the order passed on the basis of compromise was not in accordance with law. He next submitted that respondent no.4 was minor, as such, he was not aware about the proceeding and when there was interference with the possession of the petitioners, the appeal along with application under Section 5 of Limitation Act has been filed by respondent no.4. He also submitted that the writ petition is liable to be dismissed.

7. I have considered the argument advanced by learned counsel for the parties and perused the records.

8. There is no dispute about the fact that the order under Section 12 of Act of 1953 has been passed by the Assistant Consolidation Officer on the basis of compromise on 24.8.1984. There is also no dispute about the fact that appeal under Section 11 (1) of Act of 1953 has been filed by respondent no.4 after 36 years on 17.3.2020 along with the application under Section 5 of Limitation Act which has been allowed by the impugned order and date has been fixed for disposal of appeal on merit. There is also no dispute about the fact that revision filed by the petitioners has been dismissed.

9. Since, the order has been passed by the Assistant Consolidation Officer on 24.8.1984 on the basis of compromise entered into between the parties and respondent no.4 became major in the year 1988-19 according to the pleadings setup by him but the appeal has been filed by respondent no.4 on 17.3.2020, there is no proper explanation in the application under Section 5 of Limitation Act for condonation of delay of 36 years and the appellate Court vide order dated 9.12.2022 has condoned the delay only by saying that the order is without jurisdiction, hence order requires consideration. The operative portion of the appellate order runs as follows:

"???? ??????? ?? ??????? ???????? ?? ????? ?? ???? ??? ???????? ?? ?????? ????, ????? ?????? ??? ?? ????? ??????? ??????? ?? ???? ?????? 24.08.1984 ?? ??????? ?? ???? ???? 36 ???? ?????? ?? ???????? ?? ??? ??? ?????? ?? ?? ???? ??????? ???????? ???????? ?? ??? ??? ??? ???? ???????? ? ?????? ???????? ?? ??? ???????? ?? ?????? ??? ??? ???? ????????????? ?? ???? ?? ?? ?? ??? ?????? ???? ?? ?????? ???? ???? ???? ??? ?? ?????? ???? ?????? ??? ???? ? ???? ????????? ?????? ??? ????? ??????? ?? ???? 5 ?? ??? ???? ???? ?????? ???? ??? ???? ?? ??????????? ?? ?? ??? ?? ???? ?????????? ?? ??????? ??????? ????? ???? ?? ?? ?? ??????? ??? ??? ????? ???? ???? ???????? ???? ??? ???

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??????? ??????? ?? ???? ?? ???? ??? ????? ?? ??? ???? ??? ?????? ?????? ???? ???? ??? ???????? ?????? ???-??? ?? ??? ???? ?????? 21.12.2022 ?? ??? ???

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10. There is no proper consideration by the appellate Court for condoning the delay of 36 years. The law is settled that there can be liberal view with respect to the sufficiency of cause but in respect to the reality of cause, there can be no liberal view, as such, respondent no.4 has to give proper explanation of 36 years as the right has been created in favour of person in whose favour the order was passed and subsequently the property has been sold out to other persons.

11. The case law of Hon'ble Apex Court as cited by learned counsel for the petitioner in Balwant Singh (supra) is relevant for the instant matter, paragraph no.13 of the judgment is as under:-

"13. As held by this Court in the case of Mithailal Dalsangar Singh (AIR 2003 SC 4244: 2003 AIR SCW 4878) (supra)the abatement results in denial of hearing on the merits of the case, the provision of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be considered liberally.We may state that even if the term ?sufficient cause? has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of ?reasonableness? as it is understood in its general connotation.The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly.The application filed by the applicants lacks in details. Even the averments made are not correct and ex facie lack bona fide. The explanation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. If it does not specify any of the enunciated ingredients of judicial pronouncements, then the application should be dismissed. On the other hand, if the application is bona fide and based upon true and plausible explanations, as well as reflects normal behaviour of a common prudent person on the part of the applicant, the Court would normally tilt the judicial discretion in favour of such an applicant. Liberal construction cannot be equated with doing injustice to the other party. In the case of State of Bihar v. Kameshwar Prasad Singh [(2000) 9 SCC 94 : 2000 SCC (L&S) 845] this Court had taken a liberal approach for condoning the delay in cases of the Government to do substantial justice. Facts of that case were entirely different as that was the case of fixation of seniority of 400 officers and the facts were required to be verified. But what we are impressing upon is that delay should be condoned to do substantial justice without resulting in injustice to the other party. This balance has to be kept in mind by the Court while deciding such applications.In the case of Ramlal v. Rewa Coalfields Ltd. [AIR 1962 SC 361] this Court took the view:

?7. In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan ILR (1890) 13 Mad 269.

It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration;......?

11. Considering the entire facts and circumstances as well as ratio laid down by Hon'able Apex Court the appellate order dated 9.12.2022 and the revisional order dated 16.2.2023 are liable to be set aside and the same are hereby set aside.

12. The writ petition is allowed in part and matter is remitted back before the Settlement Officer of Consolidation i.e. respondent no.3 to decide the delay condonation matter afresh in accordance with law after affording opportunity of hearing to the parities expeditiously preferably within period of three months from the date of production of certified copy of this order before him.

Order Date :- 26.4.2023

Rameez