Allahabad High Court
Mohan Lal And 8 Others vs State Of U.P. And 7 Others on 18 August, 2023
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:166407
Court No. - 48
Case :- WRIT - B No. - 1862 of 2023
Petitioner :- Mohan Lal And 8 Others
Respondent :- State Of U.P. And 7 Others
Counsel for Petitioner :- Hanuman Deen Verma
Counsel for Respondent :- C.S.C.,Tripathi B.G. Bhai
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Hanuman Deen Verma, learned counsel for petitioners, Sri Tripathi B.G. Bhai, learned counsel for respondent and learned Standing Counsel for State.
2. The facts which are not under dispute in the present case are that the contesting respondents have filed a belated appeal wherein order dated 25.08.1972 was challenged after about 40 years along with application for condonation of delay. The said appeal is pending before the Appellate Court since 2012.
3. During the pendency of aforesaid appeal, petitioners herein have filed an application before Appellate Authority with prayer to decide the issue of condonation of delay at first instance, however, said application was rejected by Appellate Authority vide order dated 26.05.2022, placing reliance on judgment passed by this Court reported in 2005 RD 98 that issue of condonation of delay can be decided simultaneously along with merit of appeal.
4. The petitioners thereafter filed a revision petition against aforesaid referred order, however, it was rejected mainly on the ground that it would delay the proceedings as well as since the impugned order was an interlocutory order, a revision petition was not maintainable.
5. Learned counsel for petitioner has placed reliance on a judgment passed by Division Bench of this Court in the case of Ram Prakash Vs. Deputy Director of Consolidation, Hardoi and Others, 2022 (2) AWC 1345 (LB), wherein following issue was considered that :
"If an order has been challenged before the consolidation authority is barred by the period of limitation as provided under the statute (in the present case before the appellate authority/Settlement Officer Consolidation -1, Hardoi) along with an application for condonation of delay then in that circumstances whether the application for condonation of delay under Section 5 of the Limitation Act should be decided first or the same can been decided along with merit of the case?"
6. Learned counsel further submits that the referred issue was answered in following terms :
"22. In view of the aforesaid discussion, we answer the question referred to the Division Bench that an application seeking condonation of delay has to be decided first before the appeal is taken up for hearing on merits. However, it can be on the same day and there is no requirement of adjourning the hearing of appeal on merits after acceptance of the application seeking condonation of delay. "
7. Learned counsel for respondent has not disputed the aforesaid position of law, however, he has placed reliance on judgment passed by co-ordinate Bench in Sharad Kumar Shukla Vs. Deputy Director of Consolidation and others, 2018 (141) RD 335, wherein a judgment passed by Supreme Court in the case of Ramesh Chandra Sankala Vs. Vikram Cement, (2008) 14 SCC 58, was referred and co-ordinate Bench held that the question of condonation of delay is not required to be decided as a preliminary issue.
8. Heard counsel for the parties and perused the record.
9. As referred above the counsel for petitioners have drawn attention of this Court that a Division Bench of this Court in Ram Prakash (supra) has considered the same issue as in present case and considering Ramesh Chandra Sankala (supra) has specifically given the aforementioned finding, therefore, reliance placed by learned counsel for respondent on Sharad Kumar Shukla (supra) would not be of any help to him since it is apparently per incuriam.
10. In view of the above submissions, this writ petition is allowed and impugned orders are set aside and the Appellate Court is directed to decide application for condonation of delay in filing the appeal in terms of Ram Prakash (supra) expeditiously, preferably within a period of six months from today, in accordance with law, after considering the rival submissions, if there is no legal impediment.
11. Accordingly, writ petition is disposed of.
Order Date :- 18.8.2023
P. Pandey
