Allahabad High Court
Uma Shankar vs Dy. Director Of Consolidation And 11 … on 6 September, 2024
Author: Dinesh Pathak
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:145777 Reserved on - 14.08.2024 Delivered on - 06.09.2024 Court No. - 49 Case :- WRIT - B No. - 3162 of 2018 Petitioner :- Uma Shankar Respondent :- Dy. Director Of Consolidation And 11 Others Counsel for Petitioner :- Chaudhary Subhash Kumar,Rajiv Kumar Tripathi,Vaibhav Shandilya Counsel for Respondent :- C.S.C.,Chandra Kumar Rai,Prabha Shanker Pandey Hon'ble Dinesh Pathak,J.
1. Heard Sri Vivek Shandilya, Senior Advocate assisted by Shri Vaibhav Shandilya, learned counsel for the petitioner and Mr. Uday Kanan Saxena, Senior Advocate assisted by Shri Prabha Shanker Pandey and Shri G.R. Niranjan, learned counsel for the respondents as well as learned Standing Counsel for the State-respondents.
2. Petitioner is aggrieved with the order dated 10.10.2011 passed by Consolidation Officer, whereby restoration application dated 24.03.2000 moved on behalf of petitioner assailing the order dated 28.02.1996 has been rejected, and aforesaid order passed by Consolidation Officer has been affirmed by Deputy Director of Consolidation, on revision being filed on behalf of the petitioner vide order dated 15.09.2017.
3. Facts culled out from the record are that present petitioner and his two brothers, namely, Govind Prasad and Brij Mohan have filed an objection dated 19.01.1989 under Section 9(A)2 of U.P. Consolidation of Holdings Act, 1953 (in brevity ‘U.P.C.H. Act’) along with delay condonation application against contesting respondents claiming their right, title and interest over the property in question on the basis of gift deed dated 10.07.1938 and 21.02.1939 said to have been executed by Ram Lal, who was, as claimed by petitioner, his maternal grandfather. Aforesaid objection filed on behalf of the petitioner was ordered to be dismissed in default vide order dated 28.02.1996 (Annexure No.2). At belated stage, petitioner has filed restoration application dated 24.03.2000 (Annexure no.3) supported by affidavit along with an application for condonation of delay under Section 5 of Limitation Act. Against said restoration application, two sets of objection were filed; (i) Ram Sewak (respondent no.5) has filed his objection dated 13.02.2003 (Annexure no.4) and (ii) Shyam Narayan along with Sri Ram (respondent nos. 3 and 4) have filed separate objection dated 02.04.2003 (Annexure no.5). After due consideration, Consolidation Officer has rejected the restoration application vide order dated 10.10.2011 (Annexure no.6). Deputy Director of Consolidation, on revision being filed on behalf of petitioner and others, has dismissed the same vide order dated 15.09.2017, which is under challenge before this Court.
4. Learned Senior Counsel for the petitioner, while assailing the order dated 10.10.2011 passed by Consolidation Officer and order dated 15.09.2017 passed by Deputy Director of Consolidation, has submitted that Consolidation Officer has illegally rejected the restoration application for want of affidavit with respect to the misconduct of the Advocate concerned. It is next submitted that counsel engaged in the Civil Court was different from the counsel engaged in the Consolidation Court, therefore, dismissing the restoration application on the ground that petitioner was doing pairvi in the Civil Court, is not justifiable in the eye of law. It is next submitted that the sufficient reason has been assigned for the delay in filing restoration application at belated stage, therefore, the restoration application should have been allowed rather curtailing the right of the petitioner to contest his title before the court competent. He has laid emphasis that litigant could not be allowed to suffer injustice for the fault of his counsel. In support of his submissions, learned Senior Counsel for the petitioner has placed reliance upon the judgment dated 12.05.2022 passed by a co-ordinate Bench of this Court in the matter of Ashok Singh and 3 Others Vs. State of U.P. and 5 Others in Writ-B No-303 of 2022, (Neutral Citation No.- 2022:AHC:76578), Rafiq and Others Vs. Munsilal and Others (1981 SCC (2) 788), Smt. Sachi Tiwari and Others Vs. Director of Land Records and Others (A.I.R. 1984 SC 41) and case of Ashok Kumar Vs. New India Assurance Company Ltd. (2023 Live Law (SC) 587).
5. Per contra learned Senior Counsel for the contesting respondents has vehemently opposed the submissions as advanced by learned Senior Counsel for the petitioner and contended that the Consolidation Officer has rightly rejected the restoration application filed by petitioner with inordinate delay without assigning any sufficient reason. He has emphasized the conduct of the petitioner since 28.02.1996 till the date of filing the restoration application dated 24.03.2000 who was allegedly throughout pursuing the lis before the civil court and during this period deliberately ignored the proceeding going on before the Consolidation Court. It is next submitted that alleged gift deed dated 10.07.1938 and 21.02.1939, as relied upon by the petitioner in support of his title, has already been negated by the civil court in O.S. No. 190 of 1989 decided by judgment and decree dated 04.05.2012. The right and title of the contesting respondents is conferred on the basis of family settlement dated 16.04.1941 which has been acknowledged by the civil court. It is next contended that in Case No. 114 under Section 9(A)2 of U.P.C.H. Act, share of the parties has already been decide by order dated 10.10.1980 which became final between the parties, therefore, another title proceeding under Section 9(A)2 of U.P.C.H. Act is not maintainable in the eye of law. It is next contended that petitioner is illegally trying to shift his burden upon his counsel with a plea that owing to his ignorance, case has been ordered to be dismissed in default, however, no affidavit of the counsel concerned has been filed admitting slackness at his part, as mentioned by the petitioner in his restoration application. It is further contended that filing a restoration application at highly belated stage is an abuse of process of Court. There is a mala fide mistake at the part of the petitioner who has deliberately ignored the court proceeding and filed restoration application at belated stage. Fault at the part of the counsel cannot be a valid ground for the condonation of delay. In support of his contention learned Senior Counsel for the respondents has placed reliance upon a judgment passed by coordinate Bench of this Court in Devi Prasad and Others Vs. State of U.P. and Another in Writ-B No. 6384 of 1979 (1982 All LJ 1275) and Case of Mohd. Ismail Vs. District Judge, Bijnor and Others, decide by co-ordinate Bench of this Court in Writ-B No.7121 of 1980 (1983 All LJ 876).
6. Having considered the rival submissions advanced by learned counsel for the parties and perusal of record, it is manifested that there is an intricate title dispute between the parties who are at loggerheads since 1941 and litigated the matter at different stages. Property in question basically belongs to one Ram Lal. As per case of the petitioner he and his two brothers namely Govind Prasad and Brij Mohan are sons of Bhagwati (daughter of Ram Lal). In his life time, Ram Lal, who died on 15.03.1941, has executed a gift deed dated 10.07.1938 and 21.02.1939 in favour of his daughter and grand sons. On the flip side, as per case of the contesting respondents, Sukhvasi Lal and Bal Kishun are sons of Jugal Kishor, who was real brother of Ram Lal. In the year 1932 Ram Lal had adopted Sukhvasi Lal being his son, therefore, he became adopted son of Ram Lal. To avoid family dispute, both the parties have arrived at compromise and inked registered family settlement dated 17.04.1941 (Annexure no. CA-1 to the counter affidavit). As per family settlement, Indrani (wife of Ram Lal) is first party, Bhagwati (daughter of Ram Lal) and minor sons of Bhagwati namely Govind Prasad, Brij Mohan and Uma Shankar are second party and Sukhvasi Lal (adopted son of Ram Lal) is third-party in the aforesaid family settlement dated 17.4.1941. In this view of the matter, claim of the petitioner is based on gift deed dated 10.7.1938 and 21.2.1939, however, claim of the contesting respondents is based on adoption deed and the family settlement dated 17.04.1941. At this juncture, right and title of the parties is not in question before this Court, therefore, it would not be befitting to make any comment qua right, title and interest of the parties. However, this Court thinks it appropriate to refer the order dated 10.10.1980 passed by Consolidation Officer in Case No. 114 under Section 9(A)2 of U.P.C.H. Act, as mentioned in the paragraph No. 16 of the memo of revision (Annexure no.7), whereby share of the parties has been decided, which amounts title proceeding. Judgement and decree dated 04.05.2012 passed by Civil Judge (Senior Division), Jalaun at Orai in O.S. No. 190 of 1989 (Uma Shankar Vs. Ram Sevak and Others) which has been affirmed by appellate court, vide judgement dated 11.03.2022 passed in Civil Appeal No. 24 of 2016 (Annexure No. CA-4 to the counter affidavit) are relevant to be considered as well. Learned civil court has discarded the claim of Uma Shankar on the basis of gift deed dated 10.7.1938 and 21.2.1939, however, accepted the case of the contesting respondents on the basis of registered family settlement dated 16/17.4.1941. In his rejoinder affidavit, petitioner has not denied the judgement passed by the civil court. There is no need to discuss the judgement passed by the civil court in detail. It is apposite to mention that after the death of Indrani (wife of Ram Lal) name of Sukhvasi Lal and others were ordered to be recorded in land revenue record vide order dated 20.01.1944. In this backdrop of the facts, it is abundantly clear that both the parties have litigated at different stages before different courts qua the property which belongs to Ram Lal. In series of litigations between the parties, the petitioner and his brothers have resorted to another remedy in U.P.C.H. Act by way of filing objection dated 19.01.1989 under section 9(A)2 of U.P.C.H. Act against Sukhvasi Lal, Ram Sewak and Bal Kishun. During proceeding, Sukhvasi Lal had died on 16.10.1993 and in his place his sons namely Shri Ram and Shyam Narayan (respondent nos. 3 and 4 herein) were came to be recorded in revenue record through P.A.-11 dated 16.11.1993. Likewise, they were substituted in the objection as well in place of deceased Sukhvasi Lal. It appears that at later stage, petitioner has stopped pursuing the proceeding under Section 9(A)2 of U.P.C.H. Act which led its dismissal for want of prosecution vide order dated 28.2.1996. A belated restoration application dated 24.03.2000 has been filed after about 4 years on the following grounds, that:-
(i) Applicant is an old and weak person. It is difficult for him to appear on each and every date. Therefore, his counsel has assured him that at present normal dates are being fixed and, in case, presence is required, he will send message to call him upon.
(ii). When he didn’t receive any message with respect to his case since long, he approached to his counsel and asked about the proceeding, who has stated that presently consolidation court is not functional and whenever the court start functioning and date is being fixed, he will be informed.
(iii). While he has not received any notice or information about the date, he went to his counsel at Orai on 10.03.2000 and asked about the status of his case.
(iv). His counsel has shown his ignorance qua status of the case and stated that he has forgotten to do pairvi in the matter.
(v). Thereafter, he tried to know whereabouts of the record of the case. On the instructions given by Consolidation Officer, concerned clerk has made available the record for inspection on 14.3.2000, thereafter, petitioner came to know about order of dismissal dated 28.02.1996.
(vi). Having been dissatisfied and frustrated owing to slackness at the part of his counsel, he has engaged another counsel and got the restoration application prepared.
(vii). There is no deliberate inaction at the part of the applicant rather he could not appear before the court due to slackness at the part of his counsel who had not given information to the petitioner.
7. In this view of the matter, petitioner has shifted entire responsibility of dismissal of the case in default and delay in filing the restoration application upon the shoulders of his Counsel who was doing pairvi in the court of Consolidation Officer. While dismissing the restoration application, Consolidation Officer has returned categorical finding that during this period he was throughout pursuing the litigation before the civil court and no affidavit has been filed showing reluctance at the part of his counsel. Replying to both the aforesaid reasons as assigned by Consolidation Officer in rejecting the restoration application, petitioner came with the plea that counsel before the consolidation court and the counsel before the civil court are different, therefore, doing pairvi in the civil court by his counsel cannot be a good ground for rejection of his restoration application filed in the consolation court. Secondly, it is submitted that along with restoration application, delay condonation application was filed supported by affidavit of the applicant (petitioner herein) with specific averment pointing out the slackness at the part of his Counsel. Therefore, it could not be said that no affidavit was filed in support of the averment made on behalf of petitioner that his counsel was at fault. In the light of the aforesaid submissions, learned counsel for the petitioner has tried to explain the sufficient cause for the delay in filing restoration application.
8. It is no more res integra that condoning the delay is a discretionary power of the court concerned, who has to examine the merits of delay in facts and circumstances of the particular case wherein delay has been caused. While deciding the delay condonation application, court should not act in cavalier manner inasmuch as expiration of the prescribed period of limitation for moving an appropriate application or resorting to any other remedy before the court competent gives rise to a right in favour of the other person to consider/treat the order of dismissal binding between the parties. Thus, this legal right accrued in favour of the other side by lapse of time should not be light heartedly disturbed.
9. In case of Ashok Singh (Supra), coordinate Bench of this Court has adopted lenient view in condoning the delay, wherein writ petition arisen from the dismissal of the substitution application which was filed at belated stage on 23.11.2015 from the date of death of the revisionist dated 26.10.2011 during pendency of the revision before Board of Revenue, Allahabad. In paragraph No. 9 of the aforesaid judgment, which is quoted here in below, Hon’ble Coordinate Bench has considered the phrase ‘sufficient cause’ as discussed in the matter of Esha Bhattacharjee vs, Managing Committee of Raghunathpur Nafar Academy and three Others:
“9. The question as to what would be held to be “sufficient cause” while considering an application seeking condonation of delay again came up for consideration in the case of Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and others, wherein upon considering the obligation of the Court while dealing with an application for condonation of delay and the approach to be adopted while considering the grounds for condonation, the principles to be applied were summarized. The observations made in the judgment in this regard are as follows -:
“21. From the aforesaid authorities the principles that can broadly be culled out are:
21.1. (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
21.2. (ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.
21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.
21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
21.12. (xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.”
10. However, on the flip side, learned Senior Counsel for the contesting respondents has relied upon the case of Devi Prasad (Supra), wherein coordinate Bench of this Court has discussed that advice given by counsel could be a ground for condonation of delay. In the cited case, during pendency of the petition, one of the petitioners namely ER Parker (petitioner No. 2) had died on 18.7.1981, however, his substitution application was filed on 19.7.1982. Having considered the explanation insufficient for the delay in filing substitution application, coordinate Bench of this Court has dismissed the writ petition as abated against petitioner no.2. Relevant paragraph Nos. 5, 6, 7 and 8 of the aforesaid judgement are quoted here in below:
“5. It is true that bona fide advice given by a counsel after due care and attention. may constitute sufficient cause for condonation of delay if acted upon by a party in good faith but it is not the law that the delay should invariably be condoned simply because it is asserted that it was caused on account of some wrong legal advice given by a counsel. In Municipal Board, Lucknow v. Kali Krishna Narain (AIR 1944 Oudh 135) an applicant sought condonation of delay on the basis of the advice given by a counsel. It was held by a Division Bench that it is not sufficient for the applicant to show that he acted on the advice of a counsel but the court must be further satisfied that the advice was given with due care and attention. In that case the delay in filing an application for leave to appeal to his Majesty in Counsel was sought to be condoned on the ground of a misapprehension in the mind of the counsel that a period of six months was provided which misapprehension was due to the counsel’s failure to notice that the editions of Mulla’s Civil Procedure Code and Limitation Act which he consulted were old ones. It was held that the fact that the counsel consulted the old editions of the Code of Civil Procedure and the Limitation Act published presumably prior to 1920 established beyond doubt utter negligence and carelessness on the part of the counsel who had been appearing in the Chief Court for many years and the negligence of counsel in the circumstances of the case did not entitle the applicant to urge that he was prevented by any sufficient cause from filing the application for leave within time. In Sarmukh Singh v. Chanan Singh, (AIR 1960 Punjab 512) delay was sought to be condoned on the ground of wrong advice of the counsel in relation to the provisions of S. 391 of the Punjab Courts Act. A Division Bench of that court held (at p. 513):
“Had the learned counsel cared to look up this Section there could have been no reasonable doubt, that the appeal could, on no conceivable ground, be competent in the Court of the learned District Judge. This was not an error liable to be committed by a reasonably prudent lawyer exercising due diligence and caution. Indeed a mistake due to negligence or misconduct or want of reasonable skill can by no stretch be considered to fall within the definition of “good faith” as contained in Sec. 2(7) of the Limitation Act.”
6. It was also held that the view taken by the legal adviser, if reasonable, though mistaken, may well justify protection by S. 5, but where the view taken is wholly unsupportable on the express language of a well-known provision of law it is difficult to apply S. 5 to such a case.
7. In Chand v. Tripat Singh, (AIR 1963 J & K 53) it was held that a general rule of law cannot be laid down that a mistake of a pleader, however obvious it may be, can always and under every circumstance afford ground for extension of time under S. 5. The counsel must show that there was a bona fide mistake on his part and in spite of care and attention he could not avoid the mistake which was committed by him.
8. In Mariambai v. Hanifabai, (AIR 1967 Madh Pra 107) it was held that advice given by counsel being based only on his impression and without reading relevant provisions of law it could not be said that counsel had acted with reasonable care nor could it be said that advice was founded on view which could have been taken by any other competent and careful legal practitioner so as to make it ground for extending time.”
11. Case of Mohammed Ismail (supra), relied upon by Learned Senior Counsel for the contesting respondents, has arisen from the dismissal of the appeal on the ground of latches. In this matter as well coordinate Bench of this Court has discussed the advice given by counsel in good faith. Hon’ble coordinate Bench of this Court has expounded that, for the purposes of explaining sufficiency of cause for the delay, advice given by learned Counsel should be bona fide and with due care and conscious. Advice given in negligent manner without exercising due care and conscious, cannot be accepted as a sufficiency of cause for the delay. For ready reference relevant portion of paragraph nos. 10 and 11 are quoted here in below:
“10……………………………………………………………………………………………………………………………………………………………………………………………………In this background. It was held in Badri Pandey ‘s case supra that in advice given by a counsel to file a second appeal, which resulted in the delay in filing the application for setting aside the ex parte decree dt. 24-5-1971 was bona fide and could constitute sufficient explanation for the delay. It was, however, pointed out even in that case that advice of the counsel could constitute sufficient cause for the delay if there was no negligence or laches. In the instant case even if it is accepted that the earlier appeal before the District Judge was filed by the petitioner not against the order dt. 10-2-1978 but against the order dt. 17-3-1979, on the basis of some legal adivce, as asserted by him, the said advice, on the face of it, was given in a negligent manner without even looking into the order of this Court rejecting the earlier writ petition filed by the petitioner and the plain language of S. 22 of the Act.
11. Reliance was also placed by counsel for the petitioner on a decision of the Supreme Court in Mata Din v. Narayanan ((1969) 2 SCC 770 : AIR 1970 SC 1953). In my opinion, that case also is not of any assistance to the petitioner in view of the facts already pointed out above. Even in the case of Mata Din (supra) it was held that mistake of counsel will not in every case by itself be sufficient ground to condone the delay. It was pointed out in Mata Din’s case (supra) that there was nothing to show that error of-counsel was tainted by any mala fide motive. It is true that in the instant case also, even if it is accepted that the earlier appeal was filed as aforesaid on the basis of legal advice, it may not be possible to say that the advice was necessarily mala fide but certainly the advice had been given not after exercising due care and caution but in a negligent manner and was a cavalier one………..”
12. In recent judgement, Hon’ble Supreme Court has constrained itself in adopting liberal approach while dealing with the phrase “sufficient cause”. Considering the several decisions, Hon’ble Supreme Court in the matter of Majji Sannemma @ Sanyasirao v. Reddy Sridevi & Ors., AIR 2022 SC 332, has expounded that in normal course delay cannot be condoned unless sufficient reason is assigned. For ready reference, Paragraph Nos.7.1 to 7.5 are quoted herein below :-
“7.1 In the case of Ramlal, Motilal and Chhotelal (supra), it is observed and held as under:-
In construing s. 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chattappan, (1890) J.L.R. 13 Mad. 269, “s. 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood, the words “sufficient cause’ receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant.
7.2 In the case of P.K. Ramachandran (supra), while refusing to condone the delay of 565 days, it is observed that in the absence of reasonable, satisfactory or even appropriate explanation for seeking condonation of delay, the same is not to be condoned lightly. It is further observed that the 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 courts have no power to extend the period of limitation on equitable grounds. It is further observed that while exercising discretion for condoning the delay, the court has to exercise discretion judiciously.
7.3 In the case of Pundlik Jalam Patil (supra), it is observed as under :-
“The laws of limitation are founded on public policy. Statutes of limitation are sometimes described as “statutes of peace”. An unlimited and perpetual threat of limitation creates insecurity and uncertainty, some kind of limitation is essential for public order. The principle is based on the maxim “interest reipublicae ut sit finis litium”, that is, the interest of the State requires that there should be end to litigation but at the same time laws of limitation are a means to ensure private justice suppressing fraud and perjury quickening diligence and preventing oppression. The object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.”
7.4 In the case of Basawaraj (supra), it is observed and held by this Court that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case. It is further observed that the expression “sufficient cause” cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party. It is further observed that even though limitation may harshly affect rights of a party but it has to be applied with all its rigour when prescribed by statute. It is further observed that in case a party has acted with negligence, lack of bona fides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. It is observed that each application for condonation of delay has to be decided within the framework laid down by this Court. It is further observed that if courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to legislature.
7.5 In the case of Pundlik Jalam Patil (supra), it is observed by this Court that the court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The Courts help those who are vigilant and “do not slumber over their rights.”
13. In recent judgement of Pathapati Subba Reddy v. Special Deputy Collector, SLP (Civil) No.31248 of 2018 decided on 08.04.2024, Hon’ble Supreme Court has held that in all cases, liberal approach should not be adopted and limitation law have to be construed differently. Relevant Paragraph Nos.18 to 26 are quoted herein below :-
“18. This Court as far back in 1962 in the case of Ramlal, Motilal And Chhotelal v. Rewa Coalfields Ltd A.I.R. 1962 SC 361 has emphasized that even after sufficient cause has been shown by a party for not filing an appeal within time, the said party is not entitled to the condonation of delay as excusing the delay is the discretionary jurisdiction vested with the court. The court, despite establishment of a sufficient cause for various reasons, may refuse to condone the delay depending upon the bona fides of the party.
19. In Maqbul Ahmad and Ors. v. Onkar Pratap Narain Singh and Ors. A.I.R. 1935 PC 85, it had been held that the court cannot grant an exemption from limitation on equitable consideration or on the ground of hardship. The court has time and again repeated that when mandatory provision is not complied with and delay is not properly, satisfactorily and convincingly explained, it ought not to condone the delay on sympathetic grounds alone.
20. In this connection, a reference may be made to Brijesh Kumar and Ors. v. State of Haryana and Ors. 2014 (4) SCALE 50 wherein while observing, as above, this Court further laid down that if some person has obtained a relief approaching the court just or immediately when the cause of action had arisen, other persons cannot take the benefit of the same by approaching the court at a belated stage simply on the ground of parity, equity, sympathy and compassion.
21. In Lanka Venkateswarlu v. State of Andhra Pradesh & Ors. (2011) 4 SCC 363, where the High Court, despite unsatisfactory explanation for the delay of 3703 days, had allowed the applications for condonation of delay, this Court held that the High Court failed to exercise its discretion in a reasonable and objective manner High Court should have exercised the discretion in a systematic and an informed manner. The liberal approach in considering sufficiency of cause for delay should not be allowed to override substantial law of limitation. The Court observed that the concepts such as liberal approach, ‘justice-oriented’ approach and ‘substantial justice’ cannot be employed to jettison the substantial law of limitation.
22. It has also been settled vide State of Jharkhand & Ors. v. Ashok Kumar Chokhani & Ors. AIR 2009 SC 1927, that the merits of the case cannot be considered while dealing with the application for condonation of delay in filing the appeal.
23. In Basawaraj and Anr. v. Special Land Acquisition Officer (2013) 14 SCC 81, this Court held that the discretion to condone the delay has to be exercised judiciously based upon the facts and circumstances of each case. The expression ‘sufficient cause’ as occurring in Section 5 of the Limitation Act cannot be liberally interpreted if negligence, inaction or lack of bona fide is writ large. It was also observed that even though limitation may harshly affect rights of the parties but it has to be applied with all its rigour as prescribed under the statute as the courts have no choice but to apply the law as it stands and they have no power to condone the delay on equitable grounds.
24. It would be beneficial to quote paragraph 12 of the aforesaid decision which clinches the issue of the manner in which equilibrium has to be maintained between adopting liberal approach and in implementing the statute as it stands. Paragraph 12 reads 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.”
25. This Court in the same breath in the same very decision vide paragraph 15 went on to observe as under :
“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 bona fide 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 groünd to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition 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.”
(emphasis supplied)
26. On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that:
(1) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself;
(ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time;
(iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally;
(iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act;
(v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence;
(vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal;
(vii) Merits of the case are not required to be considered in condoning the delay; and (viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision.”
14. Applying the ratio decided by Hon’ble Supreme Court, as discussed above, in the given circumstances of the present case, I am of the considered view that Consolidation Officer and the Deputy Director of Consolidation have not committed any error in negating the claim of petitioner to condone the delay in filing the restoration application. Petitioner has given a very lame excuse, shifting his liability/burden upon the shoulders of his counsel that his counsel was throughout reluctant in pursuing the case before the Consolidation Officer and it is his suggestion which precluded the petitioner from attending the court on the date fixed in the matter. Being old and ailed person, petitioner has accepted suggestions given by his counsel and he has restrained himself from doing Pairavi in the court under the anticipation that he will be informed by his counsel whenever he is required in the proceeding. I am skeptical of the plea advanced on behalf of the petitioner that being old and ailed person, he could not pursue his objection under Section 9-A(2) of U.P. Consolidation of Holdings Act before the Consolidation Officer. However, conversely, he had throughout attended the proceeding before the Civil Court which shows his carelessness and half-hearted attitude towards the proceeding pending before the Consolidation Officer. Surprisingly, he has stopped pursuing the case before the Consolidation Officer and given lame excuse that he was ill and the Consolidation Court was not functional and his counsel has assured that he will informed him whenever he is required in the proceeding, although, he had throughout attended the proceeding before the Civil Court despite his old age and ailment. In my considered opinion, petitioner has misread and misinterpreted the observations made by Consolidation Officer that no affidavit has been filed qua reluctant attitude adopted by counsel for the petitioner before the Consolidation Court. Although, counsel for the petitioner has placed emphasis on the affidavit filed in support of the restoration application as well as the delay condonation application, however, failed to produce an affidavit of the counsel concerned to prove that bonafidely he could not pursue the proceeding in the court of Consolidation Officer on behalf of the petitioner. Consolidation Officer, having considered the affidavit filed in support of the restoration application and delay condonation application, has made an observation qua absence of affidavit. Meaning thereby, learned court was intended to suggest that an affidavit had to be filed on behalf of the learned counsel for the petitioner to prove his bonafides in pursuing the proceeding before the Consolidation Officer so that it could be established that even after exercise of due care and caution, he could not properly pursue the proceeding under Section 9A(2) of U.P.C.H. Act being a counsel for the petitioner and he has not conducted the proceeding in the negligent or cavalier manner. Over the four years, from 28.02.1996 upto 24.03.2000, petitioner has shown his irresponsible behaviour towards the court proceeding which cannot be considered to be adequate or enough to prove his bonafide intention. In the given circumstances, it, prima facie, appears that petitioner has not acted diligently and remain inactive for the years. In my considered opinion, no sufficient reason is offered by the petitioner to enable the court to exercise discretion in judicious manner. Explanation offered by the petitioner is, prima facie, merely a device to coverup an ulterior motive known to him best. In the case of Ram Nath Sao v. Govardhan Sao, AIR 2002 SC 1201, the Hon’ble Supreme Court has expounded that the expression “sufficient cause” should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bonafides cannot be imputed to the party concerned, where or not “sufficient cause” has been furnished, can be decided on the facts of the particular case and no strait-jacket formula is possible. Learned Senior Counsel for the petitioner has tried to submit that the petitioner cannot be penalised owing to fault of his counsel. In support of his submission, he has placed reliance on the judgements of Rafiq and Others (supra) and Smt. Sachi Tiwari and Others (supra). I am skeptical of the submission advanced by learned Senior Counsel for the petitioner qua fault of the counsel concerned who was appearing for the petitioner in the court of Consolidation Officer. Cases relied upon by him in support of his submission is not much helpful in the present case. In the backdrop of the facts and circumstances of the present case, conduct of the petitioner is itself under cloud who was reluctant in pursuing the litigation before the Consolidation Officer despite the fact that he is under litigation since 1941.
15. In the present matter, it is admitted to both the parties that they are at loggerheads with respect to their right and title over the property in question and under multiple litigations since last several years. It is own case of the petitioner that previously proceeding under Section 9-A(2) of U.P.C.H. Act was decided by order dated 10.10.1980 determining the respective share of all the co-sharers on the basis of family agreement dated 16/17.04.1941. Needless to say that family settlement dated 16/17.04.1941 has been acknowledged by Consolidation Courts in its order dated 10.10.1980 and by the Civil Court in its judgment and decree dated 04.05.2012. Having regard to the fact that both the parties are indulged in multiple litigations relating to the property in question, it is hard to swallow that petitioner was kept silent in prosecuting the matter before the Consolidation Officer. Careless attitude of the petitioner, as shown in the instant matter, creates doubt qua his bonafide and, prima facie, it appears that he has deliberately kept the proceeding pending before the Consolidation Officer aside for some ulterior motive known to him best. Cause for the delay as offered by the petitioner cannot be considered to be a “sufficient cause” for the purpose to condone the inordinate delay of four years in filing the restoration application.
16. In this conspectus, as above, I do not find any justifiable ground to entertain the instant writ petition and interfere in the order impugned passed by the Consolidation Officer whereby restoration application has been dismissed on the ground of laches and same has been affirmed by the Deputy Director of Consolidation. There is no illegality, perversity, irregularity or infirmity in the order under challenge so as to warrant the indulgence of this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India.
17. Resultantly, instant writ petition, being devoid of merits and misconceived, is dismissed with no order as to costs.
Order Date :- 06.09.2024
Sumit K./Rama Kant