Uttarakhand High Court
WPMS/3110/2023 on 7 November, 2023
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WPMS No. 3110 of 2023
Hon'ble Vivek Bharti Sharma, J.
Present Mr. Siddhartha Sah, counsel for the petitioner.
Present Mr. Pankaj Singh Chauhan, counsel for the
respondents.
2. Present writ petition has been filed by the petitioner
under Article 227 of the Constitution of India to quash the
orders dated 06.09.2021 passed by the Court of Commissioner
Kumaun Mandal Nainital in Z.A. Appeal No. 129 of 2020-21,
whereby the delay condonation application has been allowed
without issuing notice to the plaintiffs/petitioners as well as the
order dated 03.10.2023 passed by the Board of Revenue,
Uttarakhand, Dehradun in Revision No. 12/2021, whereby the
revision filed by the petitioner against the order dated
06.09.2021 has been dismissed.
3. Counsel for the petitioners would submit that the
petitioners/plaintiffs have filed Suit No. 22/07 of 2014 under
Section 176 of the U.P.Z.A. & L.R. Act for partition in the court
of Assistant Collector 1st Class/Parganadhikari, Nainital. The
said suit was decreed by the judgment and order dated
14.08.2018. Feeling aggrieved by the said judgment and order,
the respondents/defendants have filed a time barred Appeal No.
129 of 2020-21 accompanied with a delay condonation
application in the court of Commissioner Kumaun Mandal
Nainital. The said application was allowed by condoning the
delay in filing the appeal and the order of the trial was stayed
vide judgment and order dated 06.09.2021.
He would further submit that being aggrieved by the said
judgment and order, the petitioners/plaintiffs preferred a
Revision No. 12 of 2021-22 in the court of Board of Revenue,
Uttarakhand Dehradun; that, the said revision was dismissed on
03.10.2023. Hence, the present writ petition.
4. Counsel for the petitioners/plaintiffs would submit that
the impugned judgment and orders dated 06.09.2021 and
03.10.2023 are not sustainable in the eyes of law; that, the court
erred in law by condoning the delay of three years and also
granted stay without being hearing the plaintiffs/petitioners. He
relied upon paragraph nos.5, 6 & 7 of the judgment of this Court
passed in Smt. Neelam Kumari & another Vs. U.P. Financial
Corporation (2008) SCC online Utt. 13, wherein in paragraph
no.6 & 7, the Court has observed as under:
5. Section 5 of the Limitation Act, 1963 reads thus:
"5. Extension of prescribed period in certain
cases.-- Any appeal or any application, other than an
application under any of the provisions of Order XXI
of the Code of Civil Procedure, 1908, may be admitted
after the prescribed period, if the appellant or the
applicant satisfies the court that he had sufficient cause
for not preferring the appeal or making the application
within such period.
6. On its plain reading, this Section does not apply
to suits. It applies only to appeals or applications.
Whether the plaintiff or its counsel wrongly invoked
Section 5 for condonation of the delay despite the
aforesaid averments in the plaint, is for the plaintiff or
its counsel to ponder over. But the learned trial court
ought to have known that Section 5 Limitation Act is not
applicable to suits. Yet it received and entertained the
application under Section 5 for condonation of the delay
in filing the suit and, not only that, it condoned the delay
also ex parte, without issuing any notice to the
defendants in the suit.
7. Irrespective of the fact that Section 5 Limitation
Act is not applicable to suit, as far as the law of
limitation is concerned, if a matter, on the own showing
of the party filing the matter in the court, is time-barred,
right accrues in favour of the opposite party in that
matter in having that matter dismissed as time-barred
and, therefore, if such a matter is accompanied by an
application for condonation of the delay because of the
fact that a right has already accrued in favour of the
opposite party about the dismissal of the matter as being
time-barred, delay can never be condoned without
issuing notice to the opposite party in the delay
condonation application. It is absolutely impermissible
in law to condone the delay in any such matter ex parte
without issuing notice to the opposite party and without
affording him an opportunity of hearing. A valuable
right vested in the opposite party is taken away by
condoning the delay in his, absence. This well
established principle of law also ought to have been
known to the learned court below. On both the counts,
the learned court below has exhibited its lack of
knowledge, understanding as well as perception.
4. To this, counsel for the respondent at this stage would
submit that in the interest of justice, at least one opportunity
may be given to the petitioners/plaintiffs to file reply/objection
to the application filed by the respondents/defendants under
Section 5 of the Limitation.
5. In view of the above, the order dated 06.09.2021 passed
by the Court of Commissioner Kumaun Mandal Nainital in Z.A.
Appeal No. 129 of 2020-21 as well as order dated 03.10.2023
passed by the Board of Revenue, Uttarakhand Dehradun are
hereby set aside. Petitioners/plaintiffs are given liberty to file
objections/reply to the application filed by the
respondents/defendants under Section 5 of the Limitation Act.
The Commissioner Kumaun Mandal Nainital is directed to
rehear the matter and decide the same on its own merits after
affording opportunity of hearing to both the parties.
6. The writ petition stands disposed of accordingly.
(Vivek Bharti Sharma, J.)
07.11.2023
Mamta
