Madhya Pradesh High Court
Pramod Kumar vs Krishnaprasad on 4 April, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
NEUTRAL CITATION NO. 2025:MPHC-GWL:7923
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 4 th OF APRIL, 2025
WRIT PETITION No. 4333 of 2018
PRAMOD KUMAR AND OTHERS
Versus
KRISHNAPRASAD AND OTHERS
Appearance:
Shri Kabir Quraishi - Advocate for the petitioners.
Shri Rajeev Shrivastava - Advocate for the respondent No.l
Shri Anuraj Saxena - Advocate for the respondents No.7 to 9.
ORDER
The present petition, under Article 226/227 of the Constitution of India, has
been filed by the petitioner seeking following reliefs:
" 7 . माननीय यायालाय से िनवेदन है क यािचकाकता ारा
तुत यािचका वीकार क जाकर यायालय राज व म डल म० ०
वािलयर करण कमांक िनगरानी 2802-एक/2016 पा रत आदे श
दनांक 25.9.17 अने चर पी-1 अपा त कये जाने का आदे श पा रत
करने क कृ पा करे ।"
2. The subject matter of the case in brief is that the agricultural lands bearing
Survey Nos.1348 & 1349, ad-measuring 2.990 & 3.281 hectares respectively
situated at Village Prithvipura, Patwari Halka No.1 were of the joint ownership of
petitioners and respondents. An application for partition of the said land was
moved by respondent No.2/Vasudev, S/o Munshiram under Section 178 of the
Land Revenue Code, 1959 before the concerned Tahsildar, which was registered
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as Case No. 03/A-27/98-99. Vide order dated 15.02.99, the Tahsildar had allowed
the said application and partitioned the land. Aggrieved by the said order dated, a
first appeal was preferred by respondent No.1/Krishna Prasad before the Sub-
Divisional Officer (Revenue), Sub-Division Lahar, District Bhind alongwith an
application under Section 5 of the Limitation Act. However, without deciding the
application for condonation of delay, appeal was allowed on merits by the SDO
vide order dated 25.04.2015 in appeal No.110/2011-12 setting aside the order of
the Tahsildar dated 15.02.1999. Being aggrieved by the aforesaid order, a second
appeal was preferred by the petitioners which was registered as Case
No.205/2014-15/Appeal and vide order dated 28.07.2016, the said second appeal
was allowed and the order dated 25.04.2015 passed by the SDO was set aside.
Aggrieved by the aforesaid order, a revision was preferred by the respondent No.1
before the Board of Revenue, Gwalior and while allowing the said revision, the
order passed by the Additional Commissioner, dated 28.07.2016 was set aside and
the order passed by the SDO dated 25.04.2015 was affirmed. Hence, the present
petition has been filed.
3. Learned counsel for the petitioner has submitted before this Court that
without deciding an application under Section 5 of Limitation Act, the SDO
should not have decided the appeal on merits, as it is well settled law that till the
delay is condoned, there is no appeal on board and therefore, the merits and
demerits of the case cannot be considered but the learned SDO, without going into
the aspect of condonation of delay on which the appeal was to be decided first, had
went on to discuss the case on merits, which was per se illegal and in consequence
thereof, the order passed by the Board of Revenue, dated 25.09.2017 was also per
se illgal, as unless and until an application for condonation of delay is allowed and
the appeal is registered, it cannot be said that there was any appeal in the eyes of
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law.
4 While placing reliance on the judgments passed by the Apex Court in the
matter of reported in Popat Bahiru Govardhane & Others Vs. Special Land
Acquisition Officer & Another reported in (2013) 10 SCC 765 and Basawaraj &
Anr vs Spl.Laq Officer reported in AIR 2014 SC 746 , it was submitted that it is a
settled legal proposition that law of limitation may harshly affect a particular party
but it has to be applied with all its rigour when the statute so prescribes and the
court has no power to extend the period of limitation on equitable grounds.
5. It was further submitted that the statutory provision may cause hardship or
inconvenience to a particular party but the court has no choice but to enforce it
giving full effect to the same and the legal maxim dura lex sed lex which means
"the law is hard but it is the law", stands attracted in such a situation, as
"inconvenience is not" a decisive factor to be considered while interpreting a
statute and a result flowing from a statutory provision is never an evil. A court has
no power to ignore that provision to relieve what it considers a distress resulting
from its operation.
6. On the basis of the aforesaid arguments, it was submitted that the
impugned orders challenged herein are liable to be quashed and the matter is
required to be remanded back to the Sub-Divisional Officer (Revenue), Sub-
Division Lahar, District Bhind to consider the application under Section 5 of the
Limitation Act first and thereafter, if it succeeds, the appeal may be proceeded in
accordance with law.
7. Per contra, counsel for respondents has submitted that no illegality has
been committed by both the Court below in passing the impugned orders herein,
therefore, no interference is warranted in the matter.
8. Heard counsel for the parties and perused the record.
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9. The Apex Court in the matter of Basawaraj & Anr vs Spl.Laq
Officer reported in AIR 2014 SC 746 has held as under:
"12. It is a settled legal proposition that law of limitation
may harshly affect a particular party but it has to be applied with
all its rigour when the statute so prescribes. The Court has no
power to extend the period of limitation on equitable grounds. "A
result flowing from a statutory provision is never an evil. A Court
has no power to ignore that provision to relieve what it considers a
distress resulting from its operation." The statutory provision may
cause hardship or inconvenience to a particular party but the Court
has no choice but to enforce it giving full effect to the same. The
legal maxim "dura lex sed lex" which means "the law is hard but it
is the law", stands attracted in such a situation. It has consistently
been held that, "inconvenience is not" a decisive factor to be
considered while interpreting a statute.
"15. The law on the issue can be summarised to the effect
that where a case has been presented in the court beyond
limitation, the applicant has to explain the court as to what was the
"sufficient cause" which means an adequate and enough reason
which prevented him to approach the court within limitation. In
case a party is found to be negligent, or for want of bonafide on his
part in the facts and circumstances of the case, or found to have
not acted diligently or remained inactive, there cannot be a
justified ground to condone the delay. No court could be justified
in condoning such an inordinate delay by imposing any condition
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whatsoever. The application is to be decided only within the
parameters laid down by this court in regard to the condonation of
delay. In case there was no sufficient cause to prevent a litigant to
approach the court on time condoning the delay without any
justification, putting any condition whatsoever, amounts to passing
an order in violation of the statutory provisions and it tantamounts
to showing utter disregard to the legislature.
10. Admittedly, it is settled principle of law that without condoning the
delay, there is no existence of an appeal and the record which is placed before this
Court does not reflect that the First Appellate Court had ever condoned the delay
in filing the appeal; rather, it appears that straight away the First Appellate Court
had admitted the appeal.
11. From the record, it is revealed that application filed under Section 5 of
Limitation Act was never taken up. Whenever an application under Section 5 of
Limitation Act is filed, then the Court must always take up that application first
and only after condoning the delay, appeal can be registered and can be heard
finally on merits. Without condonation of delay, it cannot be said that there is an
appeal in the eyes of law. Once the SDO had not condoned the delay in filing an
appeal, then he was not expected to take up the appeal on merits. However, it
appears that without condoning the delay, appeal was taken up and was decided on
merits. The Additional Commissioner, though had allowed the second appeal and
had set aside the order of the SDO passed in first appeal, but it had also not
touched the aforesaid aspect and had dwelved upon merits, thus, is also not
sustainable.
12. Accordingly, the orders passed by the SDO, Additional Commissioner
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and the Board of Revenue, Gwalior dated 15.02.1999, 28.07.2016 and 25.09.2017
respectively are hereby set aside . The matter is remanded back to Sub-Divisional
Officer (Revenue), Sub-Division Lahar, District Bhind with a direction to take up
the application filed under Section 5 of Limitation Act and after considering as to
whether sufficient cause has been made out to condone the delay or not, shall
proceed further in accordance with law. Parties are directed to appear before SDO,
on 21.04.2025 and such further dates as fixed by him.
13. With aforesaid observation and directions, the present petition is
allowed and disposed of.
(MILIND RAMESH PHADKE)
JUDGE
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