# Acquisition, Kerala v. K.V. Ayisumma

- **Citation:** (2012) 3 ILRA 1653
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-12-21
- **Case number:** Civil Misc. Writ Petition No. 67665 of 2012
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/acquisition-kerala-v-k-v-ayisumma-42393
- **Pages:** 4

## Headnote

U.P. Consolidation of Holding Act-1953Section 48 (2)-Revision-against order
allowing restoration application-being
interlocutory order revision itself not
maintainable-apart from that once the
consolidation
officer
exercised
its
jurisdiction for doing substantial justice
and
condoned
the
delay
in
filing
restoration with specific finding of no
proper service-can not be interfered by
superior authority on Court.

Held: Para-8 and 9

So far as the submissions with regard to
the condonation of delay is concerned, in
this regard also it is well settled that
once the delay has been condoned
meaning thereby the Court has exercised
positive discretion in condoning the
delay and the exercise of this kind of
discretion should not be interfered by
the
higher
court
particularly
the
revisional court unless the delay has
been condoned totally on non-existing
ground or without there being any
explanation for the simple reason that
the purpose of establishment of the
court is to impart substantial justice to
the parties and not to close the door of
1654 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
justice on technicalities, therefore this
ground is also unsustainable.

The matter may be examined from
another angle also, the order dated
13.1.2009 which was passed on the
restoration application was challenged
by
the
petitioner
in
revisional
jurisdiction. Section 48 (1) of U.P.
Consolidation of Holdings Act, 1953
provides a remedy of filing revision to a
party against any order, other than an
interlocutory order. The explanation 2 of
Section 48 defines interlocutory order
which means such order deciding any
matter arising in such case or proceeding
or collateral thereto as does not have the
effect to finally disposing of such case or
proceeding.
Case Law discussed:
JT 2000 (5) 389; Lalji Vs. D.D.C. and others
(Writ Petition No. 44754 of 2012 decided on
5.9.2012)

## Text

3 All] Lalanjoo V. D.D.C. and others
1653
Acquisition, Kerala Vs. K.V. Ayisumma
JT 1996 (7) SC 204, Nand Kishore Vs.
State of Punjab JT 1995 (7) SC 69 and N.
Balakrishnan Vs. M. Krishnamurthy JT
1998 (6) SC 242.

16. Further, once the delay has been
condoned, the higher Court normally
should not interfere with the positive
exercise of the discretion of the court in
condoning the delay unless order is
perverse. The apex Court in the case of
State of Bihar and others Vs. Kameshwar
Singh and Others JT 2000 (5) 389, has
held as under:

" ........Once the court accepts the
explanation as sufficient, it is the result of
positive
exercise
of
discretion
and
normally the superior court should not
disturb such finding, much less in
revisional jurisdiction, unless the exercise
of discretion was on wholly untenable
grounds or arbitrary or perverse. But it is
a different matter when the first court
refuses to condone the delay. In such
cases, the superior court would be free to
consider the cause shown for the delay
afresh and it is open to such superior court
to come to its own finding even
untrammelled by the conclusion of the
lower court."

17. In view of that, I do not find any
illegality in the impugned judgments. The
petitioner has failed to make out any good
ground for interference with the orders
impugned. The writ petition is dismissed
summarily.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.12.2012

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 67665 of 2012

Lalanjoo

 ...Petitioner
Versus
D.D.C. And Others
 ...Respondents

Counsel for the Petitioner:
Sri Pradeep Chandra
Sri Pratik Chandra

Counsel for the Respondents:
C.S.C.

U.P. Consolidation of Holding Act-1953Section 48 (2)-Revision-against order
allowing restoration application-being
interlocutory order revision itself not
maintainable-apart from that once the
consolidation
officer
exercised
its
jurisdiction for doing substantial justice
and
condoned
the
delay
in
filing
restoration with specific finding of no
proper service-can not be interfered by
superior authority on Court.

Held: Para-8 and 9

So far as the submissions with regard to
the condonation of delay is concerned, in
this regard also it is well settled that
once the delay has been condoned
meaning thereby the Court has exercised
positive discretion in condoning the
delay and the exercise of this kind of
discretion should not be interfered by
the
higher
court
particularly
the
revisional court unless the delay has
been condoned totally on non-existing
ground or without there being any
explanation for the simple reason that
the purpose of establishment of the
court is to impart substantial justice to
the parties and not to close the door of
1654 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
justice on technicalities, therefore this
ground is also unsustainable.

The matter may be examined from
another angle also, the order dated
13.1.2009 which was passed on the
restoration application was challenged
by
the
petitioner
in
revisional
jurisdiction. Section 48 (1) of U.P.
Consolidation of Holdings Act, 1953
provides a remedy of filing revision to a
party against any order, other than an
interlocutory order. The explanation 2 of
Section 48 defines interlocutory order
which means such order deciding any
matter arising in such case or proceeding
or collateral thereto as does not have the
effect to finally disposing of such case or
proceeding.
Case Law discussed:
JT 2000 (5) 389; Lalji Vs. D.D.C. and others
(Writ Petition No. 44754 of 2012 decided on
5.9.2012)

(Delivered by Hon'ble Ran Vijai Singh, J.)

1. Heard Sri Pradeep Chandra, learned
counsel for the petitioner.

2. In this writ petition, the validity of
the order dated 16.8.2012 passed in Revision
No. 97 (Lalanjoo Vs. D.D.C. and others) has
been challenged. While assailing this order,
Sri Pradeep Chandra, learned counsel
appearing for the petitioner contends that the
order dated 13.1.2009 was passed after due
notice to the otherside. In his submissions, a
notice was pasted, therefore it was sufficient
service on the respondents. He has further
contended that highly belated application for
recall of the order dated 13.1.2009 was filed
which was accompanied with an application
under Section 5 of the Limitation Act and
there was no explanation for condoning the
delay but the Consolidation Officer has not
only condoned the delay but also recalled the
order dated 13.1.2009. The petitioner filed
revision that too has been dismissed without
addressing on the question of service as well
as limitation. In his submissions, the orders
impugned are perfectly illegal and deserves
to be quashed.

3. I have heard learned counsel for the
petitioner and perused the record of writ
petition.

4. The facts giving rise to the case are
that it appears an order was passed by the
Consolidation Officer on 13.1.2009 in Case
No. 935/2008-09 under Section 9-A (2) of
U.P. Consolidation of Holdings Act, 1953 in
between Lalnjoo (the petitioner) and State by
which the objection of the petitioner was
allowed and the existing boring over Plot No.
1091/1, was directed to be recorded in the
name of the petitioner by fixing its valuation
Rs. 15000/-. For recall of the aforesaid order,
an application was filed along with an
application for condonation of delay by the
respondents on the ground that they are the
co-owner of the bore and without there being
any notice to them, the order dated 13.1.2009
was passed. The Consolidation Officer has
condoned the delay and recalled the order
dated 13.1.2009. Challenging the aforesaid
order, the petitioner has filed revision that
has been dismissed by the Deputy Director
of Consolidation by the impugned order.

5. Sri Chandra has contended that the
ntoice was pasted therefore it was sufficient
service on the respondents and it was not
open to the Consolidation Officer to recall
this order by treating it exparte. In his
submissions, the order passed by C.O. is
without
jurisdiction
as
consolidation
authorities/courts have no power to review
its own order.

6. I have heard learned counsel for the
petitioner and also gone through the order
passed by the C.O. and the exact words used
3 All] Lalanjoo V. D.D.C. and others
1655
for pasting the notice on which Sri Chandra
has contended that the otherside was dully
noticed. For appreciation, aforesaid line
noticed
by
the
C.O.
is
reproduced
hereinunder :-

vkns'k ds iwoZ lg [kkrsnkjks dks tkjh lwpuk pLik
gS A

7. From the perusal of the aforesaid
line, the place of pasting of notice is not
clear. However, it appears that the notice was
pasted on some register maintained by the
court's office for purposes of records of
sending notice and it has no relevance with
the pasting of the notice on the house of
respondents. Therefore, it cannot be said to
be sufficient service on the respondents and
even if it is assumed that the notice pasted
was on the door of the respondents, it will
not be treated to be sufficient service unless
the
satisfaction
is
recorded
by
the
court/authority concerned that the service is
sufficient, therefore the submission of Sri
Chandra in this regard appears to be
misconceived. Otherwise also the service of
the notice on the respondents is a question of
fact and once the C.O. has recorded a finding
that there was no service on the respondents,
it cannot be interfered with under article 226
of the Constitution unless the finding is
perverse, which in my considered opinion is
not.

8. So far as the submissions with
regard to the condonation of delay is
concerned, in this regard also it is well settled
that once the delay has been condoned
meaning thereby the Court has exercised
positive discretion in condoning the delay
and the exercise of this kind of discretion
should not be interfered by the higher court
particularly the revisional court unless the
delay has been condoned totally on nonexisting ground or without there being any
explanation for the simple reason that the
purpose of establishment of the court is to
impart substantial justice to the parties and
not to close the door of justice on
technicalities, therefore this ground is also
unsustainable. Reference may be given to the
judgment of the Apex Court in State of
Bihar and others Vs. Kameshwar Singh
and others reported in JT 2000 (5) 389
where the Apex Court has observed as under
:-

"Once
the
court
accepts
the
explanation as sufficient, it is the result of
positive exercise of discretion and normally
the superior court should not disturb such
finding, much less in revisional jurisdiction,
unless the exercise of discretion was on
wholly untenable grounds or arbitrary or
perverse. But it is a different matter when the
first court refuses to condone the delay. In
such cases, the superior court would be free
to consider the cause shown for the delay
afresh and it is open to such superior court
to
come
to
its
own
finding
even
untrammelled by the conclusion of the lower
court".

9. The matter may be examined from
another angle also, the order dated 13.1.2009
which was passed on the restoration
application was challenged by the petitioner
in revisional jurisdiction. Section 48 (1) of
U.P. Consolidation of Holdings Act, 1953
provides a remedy of filing revision to a
party against any order, other than an
interlocutory order. The explanation 2 of
Section 48 defines interlocutory order which
means such order deciding any matter arising
in such case or proceeding or collateral
thereto as does not have the effect to finally
disposing of such case or proceeding. This
Court in the case of Lalji Vs. D.D.C. and
others (Writ Petition No. 44754 of 2012
decided on 5.9.2012) has held that an order
1656 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
restoring the case on its original number will
not fall in the ambit of final order and it will
remain interlocutory order, therefore in view
of Sub-section (1) of Section 48 of the Act,
the revision itself was not maintainable.
There is no merit in this case.

10. The writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.12.2012

BEFORE
THE HON'BLE SAEED-UZ-ZAMAN SIDDIQI, J.

Review Petition No. - 564 of 2012

Laxmi Kant Yadav (Inre 307 Sapl 2012)

 ...Petitioner
Versus
Hitai @ Hit Lal

 ...Respondents

Counsel for the Petitioner:
Sri D.C. Mukerjee
Sri R.S. Pandey

Counsel for the Respondents:
........................................

Code of Civil Procedure, Section 114
readwith Order 37 Rule 1-review against
judgment
passed
in
Second
Appeal
without disclosing any error on point of
Law or facts-rehearing of appeal in garb
of review treating to be a revision or
appeal-held-not permissible-even where
two opinions can be found can not be
basis for review.

Held: Para-10

In view of the law as discussed above, a
review petition cannot be treated to be a
revision
or
an
appeal
in
disguise.
Rehearing at all is not permissible under
Order 47 Rule 1 of Code of Civil
Procedure. By the petition, the petitioner
has attempted to postulate rehearing of
the dispute between the parties and has
highlighted all the aspects of the case
and attempted to impress upon the Court
that the judgment passed by this Court
earlier,
on
merits,
with
detailed
discussions was an erroneous decision
and
deserves
to
be
reheard
and
corrected. Even if it is presumed that two
opinions can be found the Court cannot
review a judgment or order even on this
ground. Crux of the matter is that an
error patent on the record and can be
established by lengthy and complicated
argument cannot be cured under Order
47 Rule 1 of the Code of Civil Procedure.
Case Law discussed:
2012 (30) LCD 1635; 2006(3) Supreme 125;
[AIR 1964 1372]; [AIR 1995 SC 455]

(Delivered by Hon'ble Saeed-Uz-Zaman
Siddiqi, J.)

1. Heard learned counsel for the
applicant and gone through the records.

2. By means of instant review petition,
petitioner has sought for review of the order
dated 07.11.2012, passed by this Court in
Second Appeal No.307 of 2012, by which
the second appeal was dismissed on the
ground that no substantial question of law is
involved in this case.

3. The applicant has sought for review
of the order on the ground that this court
was legally not justified in dismissing the
second appeal on the ground that no
substantial question of law was involved in
the case; without considering and critically
examine the grounds and substantial
question of law formulated in the memo of
second appeal; that the law laid down by the
Hon'ble Apex Court in Union of India v.
Ibrahim Uddin and another, 2012 (30)
LCD 1635 has wrongly been interpreted.

4. The order passed by this Court is
very exhaustive. The suit for permanent