Madhya Pradesh High Court
Prakash Kabra vs The Collector on 9 January, 2023
Author: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 9 th OF JANUARY, 2023
WRIT PETITION No. 5111 of 2022
BETWEEN:-
1. PRAKASH KABRA S/O SHRI PRAHALADDAS
KABRA, AGED ABOUT 59 YEARS, OCCUPATION:
BUSINESS R/O MAHARANI LAXMI BAI WARD,
GADARWARA, TEHSIL GADARWARA, DISTRICT
NARSINGHPUR (M.P.) (MADHYA PRADESH)
2. SHRIKUNJ KABRA S/O SHRI PRKASH KABRA,
AGED ABOUT 32 YEARS, OCCUPATION: BUSINESS
R/O MAHARANI LAXMI BAI WARD, GADARWARA,
TEHSIL GADARWARA, DISTRICT NARSINGHPUR
(M.P.) (MADHYA PRADESH)
.....PETITIONER
(BY SHRI K.S. JHA - ADVOCATE )
AND
1. THE COLLECTOR THE COLLECTOR
NARSINGHPUR DISTRICT NARSINGHPUR (MP)
(MADHYA PRADESH)
2. THE SUB DIVISIONAL OFFICER (REVENUE)
GAD ARWAR A DISTRICT NARSINGHPUR (M.P.)
(MADHYA PRADESH)
3. THE TAHASILDAR G A D A R WA R A DISTRICT
NARSINGHPUR (M.P.) (MADHYA PRADESH)
4. KIRTIRAJ LUNAWAT S/O SHRI SHANTILAL
LUNAWAT, AGED ABOUT 50 YEARS, OCCUPATION:
NILL R/O MAHARANI LAXMI BAI WARD,
GADARWARA, TEHSIL GADARWARA, DISTRICT
NARSINGHPUR (M.P.) (MADHYA PRADESH)
5. NAVNEET PALOD S/O SHRI VALLABHDAS PALOD,
AGED ABOUT 54 YEARS, OCCUPATION: NILL R/O
VALLABH MARKET, GADARWARA, DISTRICT
NARSINGHPUR (M.P.) (MADHYA PRADESH)
Signature Not Verified
Signed by: AJAY KUMAR
CHATURVEDI
Signing time: 1/12/2023
11:50:57 AM
2
6. NAVNEET SINGH MALHOTRA S/O LATE SHRI
JAYMAL SINGH MALHOTRA, AGED ABOUT 54
YEAR S , OCCUPATION: NILL R/O MAHARANA
PRATAP WARD, GADARWARA, DISTRICT
NARSINGHPUR (M.P.) (MADHYA PRADESH)
7. RASMEET SINGH S/O SHRI AJIT SINGH THROUGH
NAVNEET SINGH MALHOTRA S/O LATE SHRI
JAYMAL SINGH MALHOTRA, AGED ABOUT 54
YEAR S , OCCUPATION: NILL R/O MAHARANA
PRATAP WARD, GADARWARA, DISTRICT
NARSINGHPUR (M.P.) (MADHYA PRADESH)
8. PREMRAJ LUNAWAT S/O SHRI SHANTILAL
LUNAWAT, AGED ABOUT 55 YEARS, OCCUPATION:
NILL R/O MAHARANI LAXMI BAI WARD,
GADARWARA, TEHSIL GADARWARA, DISTRICT
NARSINGHPUR (M.P.) (MADHYA PRADESH)
9. JAWAHAR SHARMA S/O SHRI DURGAPRASAD
SHARMA, AGED ABOUT 55 YEARS, OCCUPATION:
NILL R/O INDRAWARD NARMADA COLONY,
GADARWARA, DISTRICT NARSINGHPUR (M.P.)
(MADHYA PRADESH)
10. CHAITANYA RAJ LUNAWAT S/O SHRI ASHOK
KUMAR LUNAWAT, AGED ABOUT 44 YEARS,
OCCUPATION: NILL R/O JAWAHAR GANJ OLD
GALLA MANDI, GADARWARA, DISTRICT
NARSINGHPUR (M.P.) (MADHYA PRADESH)
11. SIDDHARTH JAIN S/O SHRI SUNIL KUMAR JAIN,
AGED ABOUT 27 YEARS, OCCUPATION: NILL R/O
JAWAHAR GANJ OLD GALLA MANDI,
GADARWARA, DISTRICT NARSINGHPUR (M.P.)
(MADHYA PRADESH)
12. ASHISH KUMAR S/O SHRI SUNIL KUMAR JAIN,
AGED ABOUT 25 YEARS, OCCUPATION: NILL R/O
JAWAHAR GANJ OLD GALLA MANDI,
GADARWARA, DISTRICT NARSINGHPUR (M.P.)
(MADHYA PRADESH)
13. RAJESH KUMAR S/O SHRI NEMICHAND JAIN,
AGED ABOUT 50 YEARS, OCCUPATION: NILL R/O
HOSPITAL ROAD, MAHARANI LAXMI BAI WARD,
GADARWARA, DISTRICT NARSINGHPUR (M.P.)
(MADHYA PRADESH)
14. CHANCHAL DEVI W/O SHRI PUKHRAJ LUNAWAT,
Signature Not Verified
Signed by: AJAY KUMAR
CHATURVEDI
Signing time: 1/12/2023
11:50:57 AM
3
AGED ABOUT 50 YEARS, OCCUPATION: NILL R/O
JAWAHAR GANJ OLD GALLA MANDI,
GADARWARA, DISTRICT NARSINGHPUR (M.P.)
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI KAMALNATH NAYAK - PANEL LAWEYR AND SHRI
VIJAYENDRA SINGH CHOUDHARY - ADVOCATE FOR PRIVATE
RESPONDENTS)
This petition coming on for admission this day, the court passed the
following:
ORDER
With the consent of the parties, matter is finally heard.
2. This writ petition has been filed by the petitioners while praying
for the following reliefs :
"I. Hon'ble Court may be pleased to call for the
relevant records from the possession of the official
respondents for its kind perusal.
II. Hon'ble Court may be pleased to issue
appropriate writ/order/direction quashing the impugned
order dated 26-11-2021 (Annexure-P/1) passed by the
respondent No.1/Collector and to allow the petitioners
application for condonation of delay (Annexure-P/12) in
filing the revision.
III. Hon'ble Court may be pleased to issue
appropriate writ/order/direction quashing the impugned
order dated 29-10-2020 (Annexure-P/1) passed b the
respondent No.1/Collector as ex facie arbitrary, illegal and
without jurisdiction.
IV. Any other suitable relief deemed fit in the facts
and circumstances of the case may also kindly be granted
Signature Not Verified
Signed by: AJAY KUMAR
CHATURVEDI
Signing time: 1/12/2023
11:50:57 AM
together with the cost of the petition."
3. It is contended by learned counsel for petitioners that an order
dated 13-6-2019 was passed by the Tahsildar - Gadarwara District Narsinghpur
on an application filed by the present petitioners under Section 250 of the M.P.
Land Revenue Code, 1959 [hereinafter referred to as "the Code"] whereby the
Tahdildar accepted the application submitted by respondents under Order 26
Rule 9 of the Code of Civil Procedure (for brevity "CPC") and directed
Revenue Inspector, Gadarwara and Patwari - Jamada to carry out demarcation
and submit field book and Panchnama report with the court.
4. The said order dated 13-6-2019 was assailed by present
petitioners by filing an appeal before the Sub-Divisional Officer, Gadarwara which was
dismissed vide order dated 29-10-2020. Thereafter, the present petitioners filed a
revision petition before the Collector, Narsinghpur along with an application under
Section 5 of the Limitation Act for condonation of delay. It was submitted by
petitioners before the Collector that as the interim order passed by Tahsildar
dated 13-6-2019 was not appealable, therefore, there was a error/mistake in
filing the appeal before the Sub-Divisional Officer. Thus, there was bonafide
delay in preferring the revision before the revisional authority.
5. Learned counsel for petitioners contends that the Collector, in a
purely mechanical manner proceeded to decide the application filed under
Section 5 of the Limitation Act and the Collector while observing that the time
consumed while litigating the matter before another authority, cannot be
condoned under Section 5 of the Limitation Act, inasmuch as, the same would
fall within the ambit of Section 14 of the Limitation Act has rejected the same.
6. It is contended by learned counsel for petitioners that Additional
Collector, Narsinghpur fell in error while not appreciating the provisions of
Signature Not Verified
Signed by: AJAY KUMAR
CHATURVEDI
Signing time: 1/12/2023
11:50:57 AM
Section 5 as well as Section 14 of the Limitation Act. It is contended by
learned counsel that there were specific averments in para 3 of the application
filed under Section 5 of the Limitation Act. It was specifically stated by the
present petitioners that the delay occasioned on account of filing of appeal
against the impugned order before the Sub-Divisional Officer and thereafter
revision was filed with a prayer for condonation of delay.
7. It is contended by learned counsel for petitioners that it is settled
law that misquoting of provisions is immaterial as long as jurisdiction of a Court
to deal with issue is otherwise vested in it by law. Thus, submits that if Section
14 was not mentioned in the heading of the application, the authority even
otherwise was empowered to deal with such application and appreciate the
grounds resorted to by the present petitioners. Thus, placing reliance on the
decision of the Apex Court rendered in the case of J. Kumaradasan Nair and
another vs. Iric Sohan and others, (2009) 12 SCC 175 learned counsel
submits that the impugned order deserves to be quashed.
8. It is also submitted by learned counsel for petitioners that this
petition was earlier allowed vide order dated 11-03-2022 at the stage of
admission itself, but later on respondents No.4 to 14 moved an application and
prayed for recalling of the order on the ground that they were not heard before
passing of the order dated 11-03-2022 and hence, the earlier order has been
recalled and the present petition has been restored again for hearing afresh.
Thus, learned counsel for petitioners submits that the impugned order be
quashed.
9. Per contra, learned counsel for respondents submits that in the
present case the Court below has rightly passed the order by which an
Signature Not Verified
Signed by: AJAY KUMAR
CHATURVEDI
Signing time: 1/12/2023
11:50:57 AM
application filed by petitioners under Section 5 of the Limitation Act has been
dismissed. It is further contended by learned counsel for respondents that
petitioners were required to explain day-to-day delay and in absence of such an
application the application has been rightly dismissed.
10. It is contended by learned counsel for respondents that
Tahsildar rightly passed the order on the application under Order 26 Rule 9
CPC, inasmuch as there was material difference between two demarcations
conducted on 24-5-2012 and 04-02-2015. It is also contended by learned
counsel that there should have been an application in terms of Section 14 of the
Limitation Act. While placing reliance on the decision of the Apex Court
rendered in the case of Ketan V. Parekh vs. Special Director, Directorate
of Enforcement and another, (2011) 15 SCC 30 and also on a decision of
this Court reported in Hiralal Sarman Prasad and others vs. Amarnath
Batra and others, 1986 MPLJ 149, learned counsel submits that the present
petition deserves to be dismissed.
11. Heard rival submissions and perused the records.
12. Undisputed facts in the present case are to the effect that an
order dated 13-6-2019 was passed by Tahsildar, Gadarwara. The said order
was assailed by present petitioners by filing an appeal before the Sub-Divisional
Officer. The said appeal was preferred on 12-9-2019 (page No.43). The said
appeal was dismissed by the Sub-Divisional Officer vide order dated 29-10-
2020. Sub-Divisional Officer dismissed the said appeal while observing that
the order impugned was not a final order and the same being an interlocutory
order, the appeal was not maintainable.
13. After passing of the order dated 29-10-2020 by the Sub-
Divisional Officer, Gadarwara District Narsinghpur, the present petitioners
Signature Not Verified
Signed by: AJAY KUMAR
CHATURVEDI
Signing time: 1/12/2023
11:50:57 AM
preferred a revision before the Collector, Narsinghpur on 02-12-2020 along with
an application under Section 5 of the Limitation Act. In para 3 of the said
application following was submitted:
"3- ;g fd iqujh{k.kdrkZ }kjk U;k;ky; vuqfoHkkxh; vf/kdkjh
egksn; ds le{k vihy is'k dj nsus ds dkj.k gqvk foyEc lnHkkoh =qVh
o'k gqvk gSA U;k;ky; vuqfoHkkxh; vf/kdkjh egksn; dk vkns'k fnukad
29-10-2020 esa ikfjr gqvk ftlds ckn izekf.kr izfr ysus ds ckn ekuuh;
U;k;ky; ds le{k iqujh{k.k is'k fd;k tk jgk gSA"
14. Perusal of the aforesaid reflects that the reason which was
assigned by petitioners for condoning the delay was to the effect that on
account of litigating the matter before the Sub-Divisional Officer, the delay
occasioned in filing the revision was bonafide. The contents of para 3 of the
application make it unequivocally clear that exclusion was sought in the light of
the provisions of Section 14 of the Limitation Act. Though, in the prayer clause
condonation of delay was sought.
15. The Apex Court in J. Kumardasan Nair and another (supra)
in paras 16 and 18 ruled thus :
"16. The provisions contained in Sections 5 and 14 of the
Limitation Act are meant for grant of relief where a person has
committed some mistake. The provisions of Sections 5 and 14 of the
Limitation Act alike should, thus, be applied in a broadbased
manner. When sub-section (2) of Section 14 of the Limitation Act
per se is not applicable, the same would not mean that the
principles akin thereto would not be applied. Otherwise, the
provisions of Section 5 of the Limitation Act would apply. There
Signature Not Verified
cannot be any doubt whatsoever that the same would be applicable
Signed by: AJAY KUMAR
CHATURVEDI
Signing time: 1/12/2023
11:50:57 AM
to a case of this nature.
xxx xxx xxx
18. It is also now a well-settled principle of law that
mentioning of a wrong provision or non-mentioning of any
provision of law would, by itself, be not sufficient to take away the
jurisdiction of a court if it is otherwise vested in it in law. While
exercising its power, the court will merely consider whether it has
the source to exercise such power or not. The court will not apply
the beneficent provisions like Sections 5 and 14 of the Limitation
Act in a pedantic manner. When the provisions are meant to apply
and in fact found to be applicable to the facts and circumstances of
a case, in our opinion, there is no reason as to why the court will
refuse to apply the same only because a wrong provision has been
mentioned. In a case of this nature, sub-section (2) of Section 14 of
the Limitation Act per se may not be applicable, but, as indicated
hereinbefore, the principles thereof would be applicable for the
purpose of condonation of delay in terms of Section 5 thereof."
16. The Supreme Court dealt with the aspect of mentioning of
wrong provisions and further observed that the Court will not apply beneficial
provision like sections 4 and 5 of the Limitation Act in pedantic manner. Thus,
the Apex Court observed that the principle as stipulated under Section 14 of the
Limitation Act shall be applicable for the purpose of application of condonation
of delay filed under Section 5 of the Limitation Act.
17. The Apex Court in the case of N. Balakrishnan v. M.
Krishnamurthy, (1998) 7 SCC 123 in para 11 ruled thus :
"11. Rules of limitation are not meant to destroy the rights
of parties. They are meant to see that parties do not resort to
Signature Not Verified
Signed by: AJAY KUMAR
CHATURVEDI
Signing time: 1/12/2023
11:50:57 AM
dilatory tactics, but seek their remedy promptly. The object of
providing a legal remedy is to repair the damage caused by reason
of legal injury. The law of limitation fixes a lifespan for such legal
remedy for the redress of the legal injury so suffered. Time is
precious and wasted time would never revisit. During the efflux of
time, newer causes would sprout up necessitating newer persons to
seek legal remedy by approaching the courts. So a lifespan must be
fixed for each remedy. Unending period for launching the remedy
may lead to unending uncertainty and consequential anarchy. The
law of limitation is thus founded on public policy. It is enshrined in
the maxim interest reipublicae up sit finis litium (it is for the
general welfare that a period be put to litigation). Rules of
limitation are not meant to destroy the rights of the parties. They
are meant to see that parties do not resort to dilatory tactics but
seek their remedy promptly. The idea is that every legal remedy
must be kept alive for a legislatively fixed period of time."
18. Therefore, in view of the aforesaid, it can safely be concluded
that rules of limitation are not meant to destroy substantive rights of parties.
The authority is only required to ensure that party concerned has not resorted to
dilatory tactics.
19. In the present case, undisputedly the petitioners were litigating
the matter before the Sub-Divisional Officer, Gadarwara. Therefore, the same
reason was assigned in para 3 of the application. Reliance placed by learned
counsel for respondents in Ketan V. Parekh (supra) is misconceived,
inasmuch as in the said case the Apex Court in para 31 held as under :
"31. A careful reading of the above reproduced
averments shows that there was not even a whisper in the
Signature Not Verified
Signed by: AJAY KUMAR
CHATURVEDI
Signing time: 1/12/2023
11:50:57 AM
applications filed by the appellants that they had been
prosecuting remedy before a wrong forum i.e. the Delhi High
Court with due diligence and in good faith. Not only this, the
prayer made in the applications was for condonation of 1056
days' delay and not for exclusion of the time spent in
prosecuting the writ petitions before the Delhi High Court.
This shows that the appellants were seeking to invoke Section
5 of the Limitation Act, which, as mentioned above, cannot be
pressed into service in view of the language of Section 35 of
the Act and interpretation of similar provisions by this Court."
20. The Apex Court while appreciating the fact that in the
application therein, there was no whisper of prosecuting a remedy before a
wrong forum, thus, arrived at the finding in para 31 of the judgment as detailed
above. Whereas in the present case, there are specific averments in para 3 of
the application for condonation of delay, that on account of litigating the matter
before the Sub-Divisional Officer, there was delay in filing revision. The
judgment passed in Hiralal Sarman Prasad and others vs. Amarnath Batra
and others (supra) is also distinguishable on facts.
21. In view of preceding analysis, the impugned order dated 26-11-
2021 (Annexure-P/1) deserves to be and is hereby quashed.
22. Present writ petition stands allowed with a direction to
Additional Collector, Narsinghpur to decide the revision preferred by petitioner
vide Case No.0022/Revision/2020-21 on merits, preferably within a period of
four months from the date of production of certified copy of the order passed
today by passing a well reasoned and speaking order while extending
Signature Not Verified
Signed by: AJAY KUMAR
CHATURVEDI
Signing time: 1/12/2023
11:50:57 AM
opportunity of hearing to all concerned, in accordance with law.
MANINDER S. BHATTI)
JUDGE
ac
Signature Not Verified
Signed by: AJAY KUMAR
CHATURVEDI
Signing time: 1/12/2023
11:50:57 AM
