Allahabad High Court
Smt. Chhiddan Biwi vs Addl. Commissoner Judicial Lko. ... on 3 January, 2024
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:290
Court No. - 7
Case :- MATTERS UNDER ARTICLE 227 No. - 6553 of 2023
Petitioner :- Smt. Chhiddan Biwi
Respondent :- Addl. Commissoner Judicial Lko. Division And 3 Others
Counsel for Petitioner :- Aakash Srivastava,Apoorv Srivastava
Counsel for Respondent :- C.S.C.,Dilip Kumar Pandey
Hon'ble Saurabh Lavania,J.
Heard learned counsel for the parties.
In view of order proposed to be passed, issuance of notice to the private-respondent(s) is hereby dispensed with.
By means of this petition, the petitioner has sought the following main relief:-
"a. Issue an order or direction thereby commanding to please directed/commanding the Opposite Party No.1 to disposal the application within month filed by the petitioner on 18.01.2019 for quashing the ex-party abetment order on 26.02.2016 in Appeal No.-957/2000-01 as filed by the Petitioner pending in the court of Additional Commissioner (Judicial), Lucknow Division, Lucknow, i.e. Petitioner Under Section 331 Z.A. Act parties Chiddan Biwi versus Vahijaad khan and others during before this Hon'ble Court."
It is stated that by the petitioner's counsel that on coming to know about the order dated 26.02.2016, the petitioner, who is a senior citizen aged about 69 years, preferred an application on 18.01.2019 alongwith an application under Section 5 of Limitation Act to recall the order dated 26.02.2016, whereby, the appeal No. 957/2000-01 was dismissed being abated and both the applications are pending consideration since 2019, as such the present petition for the reliefs sought.
Learned State counsel says that the applications, under consideration, are liable to be considered in terms of the judgment of this Court. In this regard, he placed reliance on the judgment of the Division Bench of this Court passed in the case of Ram Prakash v. Deputy Director of Consolidation and Others reported in 2022 SCC OnLine All 107, relevant portion of which on reproduction reads as under:-
"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."
Considering the aforesaid particularly the period of pendency of both the applications, the present petition is disposed of with a direction to respondent No. 1/Additional Commissioner (Judicial) Lucknow Division, Lucknow to decide the applications, in issue, strictly in terms of the judgment of Division Bench of this Court passed in the case ofRam Prakash (supra) most expeditiously after affording full opportunity of hearing to the parties to the litigation and without granting any adjournment to either party, if there is no other legal impediment in this regard.
It is made clear that the Court has not examined the case of either party on merits and the Authority concerned shall be free to decide the matter strictly in accordance with law.
With the aforesaid, the petition is disposed of.
Order Date :- 3.1.2024
Arun/-
