Rambali vs State Of U.P. And 3 Others
2023 Latest Caselaw 1069 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 7
 

 
Case :- WRIT - C No. - 38730 of 2022
 

 
Petitioner :- Rambali
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Manoj Kumar Yadav
 
Counsel for Respondent :- C.S.C.,Bhupendra Kumar Tripathi
 

 
Hon'ble Chandra Kumar Rai,J. 

Heard Sri Manoj Kumar Yadav, learned counsel for the petitioner, learned Standing Counsel for the State-respondents and Sri Bhupendra Kumar Tripathi, learned counsel for respondent- Gaon Sabha.

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

The instant petition has been filed against the orders dated 31.5.2022 and 7.11.2022 passed by respondent nos.3 & 2 in the proceeding under Section 67 of U.P. Revenue Code, 2006.

Brief facts of the case are that proceeding under Section 67 of U.P. Revenue Code, 2006 has been initiated against the petitioner in respect to Plot No.29 area 0.024 hectare situated in Village- Jamalpur, Tahsil- Machhli Shahar, District- Jaunpur in which petitioner filed his objection but without considering the petitioner's objection order dated 31.5.2022 has been passed by the Assistant Collector / Tahsildar for ejectment & damages against the petitioner hence petitioner filed an appeal under Section 67 (5) of U.P. Revenue Code, 2006 on 7.7.2022 along with the prayer for condonation of delay but appellate Court has dismissed the appeal filed by petitioner on limitation as well as on merit vide order dated 7.11.2022, hence this writ petition.

Learned counsel for the petitioner submitted that the proceeding under Section 67 (1) of the U.P. Revenue Code, 2006 has been initiated against the petitioner, which has been decided in arbitrary manner vide order dated 31.5.2022 for ejectment and damages against the petitioner. He further submitted that the order of the Tahsildar dated 31.5.2022 was challenged by the petitioner with delay of seven days before the appellate Court under Section 67 (5) of U.P. Revenue Code, 2006 and the appeal has been dismissed as barred by limitation as well as on merit. He further submitted that the in place of deciding the matter on technical grounds, the matter should be adjudicated on merit. He further placed reliance upon the decision of Apex Court in the case reported in AIR 1987 SC 1353, Collector, Land Acquisition Anantnag and Another vs. Mst. Kantiji & Others. He further placed reliance upon the judgment of this Court reported in 2022 (155) R.D. 309, Ram Prakash Vs. Deputy Director of Consolidation and Others.

On the other hand, learned Standing counsel and counsel for the Gaon Sabha submitted that the petitioner is in unauthorized possession of the plot in dispute, as such, no interference is required. They further submitted that the petitioner is only interested in delaying the proceedings that is why the appeal has been filed with delay condonation application, as such, delay has been rightly refused by the appellate Court.

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

There is no dispute about the fact that the appeal filed by the petitioner under Section 67 (5) of U.P. Revenue Code, 2006 was barred by only seven days but the appellate Court has dismissed the appeal on the ground of limitation as well as on merit.

Since the proceedings under Section 67 of U.P. Revenue Code, 2006 pertains to ejectment, as such, the same is to be decided on merit so that the justice may take place from every angle of the case. The Apex Court in the case of Collector, Land Acquisition Anantnag (supra) has held that the application, appeal or revision is to be decided on merit in place of dismissing the same on technical grounds. The Paragraph No.3 the judgment of Apex Court is as follows:

"The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-

"Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908. may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period."

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a step motherly treatment when the 'State' is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note making, file pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even handed justice on merits in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time barred, is therefore. set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides."

Since this Court in the case of Ram Prakash (Supra) has held that the limitation question has to be decided first as such the impugned order passed by the respondent No.1 cannot be sustained in the eye of law. Paragraph Nos. 19, 20, 21, 22 and 23 of the judgment rendered in Ram Prakash (Supra) will be relevant which are as follows:-

"19. We are not going into the issue as to whether an order passed by appellate authority on an application seeking condonation of delay is an interim order or final as the same has not been referred for consideration by the Division Bench. Different situations may arise in an appeal filed along with application seeking condonation of delay. Firstly, the application for seeking condonation of delay may be dismissed. As a consequence thereof, the appeal will also fail. Another situation may be that application seeking condonation of delay is allowed and thereafter the appeal may either be accepted or rejected.

20. If any statute provides certain period for filing of appeal, an appeal filed beyond the time limit will certainly be not entertained. If the provisions of 1963 Act are applicable and party is entitled to seek condonation of delay in filing appeal, an application has to be filed specifying the grounds on which delay in filing the appeal is sought to be condoned. It is only after that the application is allowed, the appeal can be entertained and heard on merits. Before that the appeal cannot be taken up and considered on merits.

21. As far as the issue regarding hearing of the application seeking condonation of delay and the appeal simultaneously is concerned, in our view, firstly the application has to be considered. Only thereafter, the appeal can be considered on merits but there is nothing in law which requires hearing of appeal on merits to be postponed mandatorily after acceptance of the application seeking condonation of delay. Both can be taken up on the same day. However, the appeal has to be heard on merits only after the application seeking condonation of delay has been accepted.

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.

23. Let the matter be listed before learned Single Judge as per roster for further proceedings in the case."

Considering the entire facts and circumstances of the case as well as ratio of law laid down in Collector, Land Acquisition Anantnag (supra) & Ram Prakash (supra), the impugned appellate order dated 7.11.2022 is liable to be set aside and the same is hereby set aside.

Writ petition stands allowed and the matter is remitted back before the appellate court (respondent no.2) to register the appeal on its original number and decide the same afresh on merit after passing necessary order for granting benefit of Section 5 of Limitation Act in favour of the petitioner. The appeal shall be decided on merit within period of four months from the date of production of certified copy of this order after affording proper opportunity of hearing to both parties.

Order Date :- 11.1.2023

Rameez