Krishnakumar Parganiha vs Vidyakumar Parganiha
2022 Latest Caselaw 5578 Chatt

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                                                               W.P.(227) No. 431 of 2021


                                                                                NAFR
                   HIGH COURT OF CHHATTISGARH, BILASPUR
                            Writ Petition (227) No. 431 of 2021
      Krishnakumar Parganiha, S/o. Late Chhatrapti Parganiha, aged about 60
       years, R/o. Village Dhaba, Tehsil Berla, District Bemetara (C.G.)
                                                                       ---- Petitioner

                                      Versus

      Vidyakumar Parganiha, S/o Late Chhatrapti Parganiha, aged about 71
       years, R/o Village Dhaba, Tehsil Berla, District Bemetara (C.G.)

                                                                   ---- Respondent

For Petitioner : Mr. Manoj Paranjpe and Mr. Shubhank Tiwari, Advocates For Respondent : Mr. Ashish Shrivastava, Senior Advocate with Mr. Aman Pandey, Advocate

Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board

07.09.2022

1. Heard on admission.

2. This petition is filed against the order dated 07.07.2021 passed by the Board

of Revenue in Revision Case No.R.N./23/R/A-6/97/2017, whereby revision

preferred by the respondent has been allowed and order passed by the

Commissioner, Division Durg, Durg dated 23.03.2017 and order passed by

the Additional Collector, Bemetara dated 26.11.2015 have been set aside

and order dated 25.08.2015 passed by the Sub-Divisional Officer has been

restored.

3. The petitioner and the respondent are brothers. On 01.04.2010 name of the

present petitioner and the respondent was recorded by the revenue authority

in mutation case No. 55 in the mutation register. Name of the petitioner and

the respondent was recorded pertaining to survey No. 205/1, 479, 489, 550

& 4 vide Annexure-P/4. Later on, same was challenged by the respondent

herein before the Sub-Divisional Officer on the ground that the order of

mutation has been passed in favour of the petitioner by playing fraud and his

W.P.(227) No. 431 of 2021

name has not been recorded in the revenue records pertaining to same plots

which were given to him. Alongwith appeal an application for condonation of

delay under Section 5 of the Limitation Act was moved by the respondent as

there was delay of 55 days and vide order dated 25.08.2015 the Sub-

Divisional Officer considering the grounds raised by the respondent allowed

the application and condoned the delay caused in filing the appeal. The

revision was preferred before the Collector, Bemetara and order dated

26.11.2015 the revision preferred by the petitioner was allowed and order

passed by the Sub-Divisional Officer where the delay was condoned was set

aside. Respondent herein preferred first revision before the Court of

Commissioner, Division Durg, Durg and same was registered as Revision

Case No. 131/A-6/2015-16 and vide order dated 23.03.2017 same was

dismissed and the order passed by the Additional Collector was affirmed.

4. The respondent preferred revision before the Board of Revenue against the

order passed by the Commissioner, Division Durg, Durg and vide order

dated 07.07.2021 the Board of Revenue allowed the revision preferred by

the respondent on the ground that order of mutation was passed on

05.06.2010 and appeal before the Sub-Division Officer was preferred on

16.08.2013 on the ground that the other party has played fraud with him and

without obtaining his consent the order of mutation was passed. The Board

of Revenue relied the judgment passed by the High Court of Jharkhand in

the matter of State of Jharkhand and others vs. Manju Suri and another,

reported in AIR 2013 Jhar 68 wherein it is observed that "a liberal

concession has to be adopted to advance substantial justice. When

technicalities of law is pitted against justice, then justice should prevail."

Further the Board of Revenue considered the fact that there was delay of 55

days and delay should be considered liberally as the dispute is between two

brothers and thus, the Board of Revenue allowed the revision preferred by

the respondent.

W.P.(227) No. 431 of 2021

5. The petitioner has challenged the order passed by the Board of Revenue by

filing instant writ petition where the petitioner has taken stands that the

Board of Revenue has committed illegality in allowing the revision preferred

by the respondent. He further submits that the orders passed by the

Additional Collector, Bemetara and the Commissioner, Division Durg, Durg

were in accordance with law and there was inordinate delay of 55 days in

preferring appeal before Sub-Divisional Officer (Revenue) and no sufficient

grounds and reasons were assigned by the respondent. He prays for setting

aside the orders passed by the Board of Revenue and restoring of the order

passed by the Commissioner, Division Durg, Durg.

6. On the other hand, learned Senior Counsel for the respondent submits that

there was delay of 55 days, it is dispute between two brothers, the legal

approach should have been taken by the concerned Court and same view

has been taken by the Board of Revenue and there is no illegality in the

order passed by the Board of Revenue.

7. I have heard the learned counsel for the parties and perused the material

available on record.

8. Only issue with regard to condonation of delay is involved in this case. The

contention of the petitioner is that the delay condoned by the Sub-Divisional

Officer is contrary to the well settled proposition of law, whereas learned

counsel for the respondent submits that Board of Revenue has exercised its

power and rightly allowed the revision preferred by the respondent and

restored the order passed by Sub-Divisional Officer.

9. In case of Brahampal Alias Sammay and Another vs. National Insurance

Company, reported in (2021) 6 SCC 512, the Hon'ble Supreme Court

dealing the issue of condonation of delay in paras 16, 18 & 20 has dealt the

"sufficient cause" for condonation of delay and has held as under:-

"16. At this juncture, we need to interpret the terms "sufficient cause" as a condition precedent for the granting of the

W.P.(227) No. 431 of 2021

discretionary relief of allowing the appeal beyond the statutory limit of ninety days. Although this Court has held that provisions of the Limitation Act, 1963 do not apply while deciding claims under the Motor Vehicles Act, but it is relevant to note that even while interpreting "sufficient cause" under the Limitation Act the courts have taken a liberal interpretation. This Court in Perumon Bhagvathy Devaswom v. Bhargavi Amma, (2008) 8 SCC 321, observed that: (SCC pp. 329-30, para 13) "13. ... (i) The words 'sufficient cause for not making the application within the period of limitation' should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words "sufficient cause" in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant."

(emphasis supplied)

18. The Court in the abovementioned cases highlighted upon the importance introducing the concept of "reasonableness" while giving the clause "sufficient cause" a liberal interpretation. In furtherance of the same, this Court has cautioned regarding the necessity of distinguishing cases where delay is of few days, as against the cases where the delay is inordinate as it might accrue to the prejudice of the rights of the other party. In such cases, where there exists inordinate delay and the same is attributable to the party's inaction and negligence, the courts have to take a strict approach so as to protect the substantial rights of the parties.

20. Therefore, the aforesaid provisions being a beneficial legislation, must be given liberal interpretation to serve its object. Keeping in view the substantive rights of the parties, undue emphasis should not be given to technicalities. In such cases delay in filing and refiling cannot be viewed strictly, as compared to commercial claims under the Arbitration and Conciliation Act, 1996 or the Commercial Courts Act, 2015."

10. Considering the facts and circumstances of the present case and going

W.P.(227) No. 431 of 2021

through the judgment passed by the Hon'ble Supreme Court, in my

considered opinion the Board of Revenue has not committed any illegality in

restoring the order passed by the Sub-Divisional Officer, whereby the

application filed under Section 5 of the Limitation Act for condonation of

delay was allowed. The main appeal moved by the respondent is still

pending before the Sub-Divisional Officer and instead of technicalities the

parties should contest their case on merits.

11. The fall out and consequence of above discussions and decision of the

Hon'ble Supreme Court in case of Brahampal Alias Sammay (supra), this

petition filed by the petitioner is dismissed at the motion stage.

Sd/-

(Rakesh Mohan Pandey) Judge

vatti