Smt. Roopwati And 2 Others vs Commissioner Meerut And 2 Others
2023 Latest Caselaw 2287 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 7
 

 
Case :- WRIT - C No. - 30717 of 2022
 

 
Petitioner :- Smt. Roopwati And 2 Others
 
Respondent :- Commissioner Meerut And 2 Others
 
Counsel for Petitioner :- Anil Kumar Dhaka,Anil Kumar Aditya
 
Counsel for Respondent :- CSC,Sunil Kumar Singh
 

 
Hon'ble Chandra Kumar Rai,J.

Order on Civil Misc. (Amendment) Application No. ...... of 2023

Office is directed to allot number to the instant application.

Heard learned counsel for the parties.

In view of the averments made in the affidavit filed in support of the application, amendment application is allowed.

Counsel for the petitioners is permitted to incorporate the amendments in the writ petition during the course of the day.

Order on Memo of the Petition

Heard Sri Anil Kumar Dhaka and Sri Anil Kumar Aditya, learned counsel for the petitioners, learned Standing Counsel for the State respondents and Sri Sunil Kumar Singh, learned counsel for the Gaon Sabha.

Brief facts of the case are that petitioners' father filed a suit under Section 229-B of the U.P.Z.A. & L.R. Act for declaration, in respect to plot no. . 499 & 474 situated in village Sahvajpur Daulat, Pargana & Tehsil - Bulandshahar, which was registered as Suit no. 27 of 1999. Subsequently, fresh number was allotted as 172 of 2002. The aforementioned suit was dismissed for non prosecution on 4.12.2002 against which they filed a restoration application to recall the order dated 4.12.2002, which was dismissed on 18.11.2003. Another application filed for recall of the order dated 18.11.2003 was also dismissed for non prosecution on 11.6.2018. Application dated 18.6.2018 filed to recall the order dated 11.6.2018 has been dismissed vide order dated 29.11.2018. Petitioners challenged all the orders dismissing the case/applications for non prosecution by way of revision before the Commissioner, which was registered as Revision No. 00320 of 2019 under Section 333 of the U.P.Z.A. & L.R. Act and the Commissioner rejected the revision vide order dated 25.5.2022 on the ground that he petitioners were negligent for prosecuting the case before the trial court, as such, the petitioners are not entitled to any discretion for decision of the case on merit. Hence, the instant petition.

Counsel for the petitioners submitted that suit for declaration filed by the father of the petitioners has been dismissed for non prosecution and the restoration applications filed by the petitioners have been also rejected for non prosecution. He further submitted that explanation for non appearance on the dates fixed has been explained in the application filed by the petitioners before the trial court as well as in the revision filed before the revisional court but the courts below have not decided the matter on merit rather dismissed the regular suit filed by the father of the petitioners on technical grounds. Learned counsel for the petitioners has placed reliance upon the judgement of the Hon'ble Apex Court in the case of Collector, Land Acquisition, Anantnag vs. MST Katiji & others, AIR 1987 SC 1353 as well as another judgement of the Hon'ble Apex Court in the case of N.Balakrishnan vs. M. Krishnamurthy, 1998 RD 607 in order to demonstrate that the matter is to be decided on merit in place of dismissing the matter on technical grounds.

On the other hand, learned Standing Counsel and the counsel for the Gaon Sabha submitted that the petitioners were negligent in prosecuting the suit proceeding even the restorations filed by them were not properly pursued as such, the petitioners are not entitled to any relief in the matter and the revision filed by them has rightly been dismissed by revisional court.

I have considered the submission of the learned counsel for the parties and perused the record.

There is no dispute about the fact that suit under Section 229-B of the U.P.Z.A. & L.R. Act filed by the father of the petitioners has been dismissed for non prosecution. The restoration applications and revision filed by the petitioners have been dismissed on the ground that the petitioners were not properly prosecuting the case.

Since the suit under Section 229-B of the U.P.Z.A. & L.R. Act filed by the father of the petitioners for declaration has not been decided on merit, as such, interest of justice requires that the petitioners should be given opportunity to get their suit decided on merit on certain conditions. In the case of Collector, Land Acquisition, Anantnag (Supra) as well as N.Balakrishnan (Supra), Hon'ble Apex Court has held that while deciding the application/appeal/revision, the Court should take liberal view while deciding the application under Section 5 of the Limitation Act and as far as possible the matter is to be adjudicated on merit rather dismissing on technical ground. Paragraph no. 3 of the judgement rendered in Collector, Land Acquisition, Anantnag (Supra) is relevant for perusal which 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 meaning- ful 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:-

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 admin- istered in an even handed manner. There is no warrant for according a stepmotherly treatment when the 'State' is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinary (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 mertis 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."

So far scope of suit under Section 229-B of U.P.Z.A. & L.R. Act is concern the judgement of this Court reported in 2020(146) RD 186 Babu vs. Mahabir & others is relevant, the following paragraphs of the judgement are relevant for perusal :-

"3. As already observed above by the Court in its order dated 21.02.2019, the proceedings under Section 229-B of U.P.Z.A & L.R Act are regular proceedings where declaration of rights in a holding is decided on the basis of evidence.

4. Learned counsel for respondent no.1 has also not been able to defend the impugned order; rather he appears to agree that the matter ought to have been remanded to the Sub-Divisional Officer concerned.

5. For the aforesaid reasons, this petition is allowed and the judgment and order dated 28.01.2019 passed by the Sub-Divisional Officer, Malihabad, Lucknow in Computerized Case No.T201810460101621; Mahavir vs Babu and others, under Section 229-B of U.P. Z.A & L.R.Act, as is contained in annexure no.1 to the writ petition, is hereby quashed.

6. The Sub-Divisional Officer is directed to decide the suit afresh in accordance with law and also by following the procedure as prescribed under the provision of the Code of Civil Procedure. The Sub-Divisional Officer shall expedite the proceedings of the suit and conclude the same within a period of six months from the date of production of a certified copy of this order."

Considering the entire facts and circumstances of the case, the impugned orders dated 4.12.2002, 18.11.2003 & 11.6.2018 passed by the Sub Divisional Officer, Khurja, District - Bulandshahar and order dated 25.5.2022 passed by the Commissioner, Meerut Region, Meerut are liable to be set aside and are hereby set aside.

The writ petition is allowed with the condition that petitioners will deposit Rs.10,000/- as cost for allowing the restoration application, the cost shall be deposited by petitioner in the Gaon Sabha fund maintained at the district level and produe the receipt of payment before the court along with certified copy of the judgement of this Court, the court will record the fact payment of cost in the order sheet of the case and proceed to decide the suit on merit. .

The matter is remitted back before the respondent no. 2/Sub Divisional Officer, Khurja, District - Bulandshahar to register the suit to its original number and decide the same after framing the issue and permitting the parties to lead evidence. The respondent no. 2 shall decide the suit expeditiously preferably within a period of six months from the date of production of a certified copy of this order before him.

Order Date :- 23.1.2023

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