Himachal Pradesh High Court

Giriraj vs Authorized Officer Cum Dfo And Another on 25 July, 2024

Neutral Citation No. ( 2024:HHC:5786 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MMO No.1124 of 2023

Reserved on: 17.07.2024.

Date of Decision: 25.07.2024.

           Giriraj                                                                       ...Petitioner

           Versus

           Authorized officer cum DFO and another


           Coram
                                    r                 to                              ...Respondents

Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes

For the Petitioner : Mr. Sarvedaman Rathore, Advocate.

For the Respondents : Mr. Ajeet Sharma, Deputy Advocate

General.

Rakesh Kainthla, Judge

The present petition is directed against the order

dated 09.08.2023 passed by the learned Additional Sessions

Judge, Paonta Sahib, District Sirmaur, H.P. (learned Appellate

Court), vide which an application filed by the petitioner

(applicant) before learned Appellate Court for condonation of

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

delay in filing the appeal was dismissed. (The parties shall

hereinafter be referred to in the same manner as they were

arrayed before the learned Appellate Court for convenience).

2. Briefly stated, the facts giving rise to the present

petition are that a case under Section 52(A) of the Indian Forest

Act was filed before the Authorized Officer cum Divisional Forest

Officer, Forest Division Paonta Sahib for confiscation of the

vehicle bearing registration No. HP17B-9140. Learned

Authorized Officer ordered the confiscation of the vehicle on

12.12.2022. The petitioner filed an appeal before the learned

Additional Sessions Judge, Sirmaur at Nahan. The appeal was

barred by limitation and the petitioner filed an application

under Section 5 of the Limitation Act asserting that he was

summoned at the stage of notice only and was advised by his

counsel that there was no need for his appearance. He was not

aware of the judgment dated 12.12.2022. The Authorized Officer

was transferred and the petitioner remained under the bona fide

belief that the matter was still pending before the learned

Authorized Officer. The applicant enquired about the case after

the new successor joined and was informed that the order of

confiscation had been passed. There was a reasonable cause with

the applicant for not filing the appeal within time. Hence, it was

prayed that the delay in filing the appeal be condoned.

3. The application was opposed by filing a reply making

preliminary submissions regarding lack of maintainability and

the application not disclosing any sufficient cause for the

condonation of delay. It was asserted that the petitioner was

duly represented by counsel before the Authorized Officer. He

had also filed Cr.MMO No. 914/22 titled Giriraj Singh and

another versus State of H.P. before this Court complaining about

the delay in the disposal of the matter under Section 52A. This

Court closed the proceedings on 20.12.2022 with liberty to the

petitioner to approach the appropriate Court for the redressal of

his grievances because of the order dated 12.12.2022 passed by

the learned Authorized Officer, a copy of the order was also

supplied to the learned Counsel on that day. The petitioner had

made false averments for explaining the delay; therefore, it was

prayed that the present petition be dismissed.

4. The learned Trial Court held that the Courts are

liberal in condoning the delay; however, a person who

approaches the Court to seek condonation of the delay has to

come with clean hands. The petitioner was aware of the passing

of the order and he had concealed the pendency of the petition

before this Court. Therefore, the application was ordered to be

dismissed.

5. Being aggrieved from the order passed by the learned

Appellate Court, the petitioner has filed the present petition

asserting that the learned Appellate Court erred in dismissing

the application. The Court had itself noticed that sufficient cause

is liberally construed but had failed to apply this principle to the

facts of the case. Therefore, it was prayed that the present

petition be allowed and the order passed by the learned

Appellate Court be set aside.

6. I have heard Mr. Sarvedaman Rathore, learned

counsel for the petitioner and Mr. Ajeet Sharma, learned Deputy

Advocate General for the respondent/State.

7. Mr. Sarvedaman Rathore, learned counsel for the

petitioner submitted that the learned First Appellate Court erred

in dismissing the application for condonation of delay. The

learned Appellate Court had noticed the principle of law that the

term sufficient cause should receive liberal interpretation but

failed to apply the principle to the facts of the present case.

Hence, it was prayed that the present petition be allowed and the

order passed by the learned Appellate Court be set aside.

8. Mr. Ajeet Sharma, learned Deputy Advocate General

for the respondent/State supported the order passed by the

learned First Appellate Court and submitted that the petitioner

concealed the fact that he had filed a petition before this Court,

in which it was recorded that the order was passed by

Authorized Officer. A copy was also supplied to the learned

counsel for the petitioner. Therefore, it was not open for the

petitioner to contend that he did not know of the passing of the

order. The learned First Appellate Court had rightly dismissed

the application; hence, he prayed that the present petition be

dismissed.

9. I have given considerable thought to the submissions

at the bar and gone through the records carefully.

10. A perusal of the order passed by the learned Appellate

Court shows that it was dismissed on the ground that the

petitioner had concealed the material facts from the Court and

had not disclosed the filing of the petition before this Court. This

finding was recorded based on a copy of the judgment passed by

this Court in Cr.MMO No. 914 of 2022 titled Giriraj Singh and

another versus State of H.P. decided on 20.12.2022. The

petitioner had specifically asserted in his petition that he was

told by his counsel that there was no need for him to be

personally present during the hearing before the learned

Authorized Officer and he remained under the impression that

the Presiding Officer of the Court of Authorized Officer-cum-

Divisional Forest Officer stood transferred and the matter would

be decided by the new incumbent. These were two assertions of

facts made by the petitioner. Before these were held to be not

proved, an opportunity of hearing should have been given to the

petitioner to establish his version and the matter could not have

been decided merely based on the order passed by this Court and

concluding that the petitioner was aware of the order passed by

the Authorised Officer. It was laid down by this Court in Chaman

Lal vs. Asha Rani 2000(2) Cur. L.J. (HP) 229 that when the facts

are disputed in an application under Section 5 of the Limitation

Act, the Court should frame issues and allow the parties to lead

evidence. It was observed:

"6. Section 5 of the Limitation Act, 1963 which provides

for condonation of delay in filling application or appeal casts a duty on the applicant to satisfy the Court that he had sufficient cause for not preferring the appeal or making the application within the prescribed period of

.

limitation. The existence of such a sufficient cause is a question of fact and can be proved only by evidence. The non-applicant has a right to disprove the facts sought to

be proved to show the existence of such "sufficient cause".

11. In the present case, the petitioner was not allowed to

provide evidence to prove his version. His application was

dismissed simply on the averments made in the reply as well as

the order passed by this Court. Prima facie the order would

suggest that the petitioner's counsel knew about the passing of

the order because his counsel was supplied with a copy of the

order passed by the Authorized Officer but whether this

knowledge of the counsel can be attributed to the petitioner or

not is a factual dispute that can only be adjudicated after

permitting the petitioner to lead evidence and the respondents

to cross-examine the petitioner and his witness to establish that

these statements are not creditworthy.