# Chandra Kant v. A.D.J., Court No.6, Jaunpur and others

- **Citation:** (2006) 1 ILRA 115
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-03-02
- **Case number:** Civil Misc. Writ Petition No. 4527 of 2006
- **Bench:** Umeshwar Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandra-kant-v-a-d-j-court-no-6-jaunpur-and-others-40641
- **Pages:** 3

## Headnote

Act-Section-5Condonation of delay-case dismissed in
default-restoration application alongwith
delay
condonation
application
duly
supported with affidavit filed-Trail Court
by exercising it discretion condone the
delay-allowed
the
restoration
application-held-Trail
Court
did
not
commit any factual or the legal mistakecan not be interfered.

Held: Para 6

In the present case also, the trial court in
the aforesaid facts and circumstances
had condoned the delay in filing the
restoration
application
and
had
exercised its discretion in favour of the
respondent plaintiff. There is nothing in
the
judgment
of
revisional
court
challenged in this petition, which would
indicate
that
the
trial
court
while
accepting
the
grounds,
had
acted
arbitrarily or in perverse manner. The
grounds for restoration and condonation
of delay as had been taken by the
respondent plaintiff and as discussed
above, could not be said to be wholly
untenable and thus, it is quite obvious
that the trial court has rightly allowed
the restoration application and did not
commit any factual or otherwise legal
mistake as to give justifiable occasion to
the revisional court to interfere in its
order.
Case law discussed:
J.T. 1998 (6) SC-242 relied on.

## Text

1 All] Chandra Kant V. A.D.J., Court No.6, Jaunpur and others
115
13. Since this Court has come to the
conclusion that the impugned order has
been passed in manifest violation of
statutory rules and in violation of
principles of natural justice as have been
stated by the Hon'ble Supreme Court in
the case of Ministry of Finance and
another (Supra), it would not be fair to
insist upon the petitioner to avail the
statutory alternative remedy.

14. In view of the aforesaid findings,
the writ petition is allowed. The order
passed by the District Magistrate, Banda
(respondent no.2) dated 25th September,
2005 is hereby quashed. The enquiry
report submitted by the Inquiry Officer is
also rendered illegal. The Inquiry Officer,
namely, Tehsildar (Judicial) is directed to
proceed with the enquiry afresh from the
stage it has gone wrong in light of the
Rules applicable. The aforesaid enquiry
may be completed within three months
from the date a certified copy of this order
is filed before the District Magistrate
(respondent no.2). The District Magistrate
on receipt of the enquiry report shall take
final decision in accordance with law,
within a period of two months thereafter.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.03.2006

BEFORE
THE HON'BLE UMESHWAR PANDEY, J.

Civil Misc. Writ Petition No. 4527 of 2006

Chandra Kant

...Petitioner
Versus
Addl. District Judge, Court No. 6, Jaunpur
and others

 ...Respondents

Counsel for the Petitioner:
Sri P.N. Tripathi

Counsel for the Respondents:
Sri Harish Chandra
S.C.

Indian
Limitation
Act-Section-5Condonation of delay-case dismissed in
default-restoration application alongwith
delay
condonation
application
duly
supported with affidavit filed-Trail Court
by exercising it discretion condone the
delay-allowed
the
restoration
application-held-Trail
Court
did
not
commit any factual or the legal mistakecan not be interfered.

Held: Para 6

In the present case also, the trial court in
the aforesaid facts and circumstances
had condoned the delay in filing the
restoration
application
and
had
exercised its discretion in favour of the
respondent plaintiff. There is nothing in
the
judgment
of
revisional
court
challenged in this petition, which would
indicate
that
the
trial
court
while
accepting
the
grounds,
had
acted
arbitrarily or in perverse manner. The
grounds for restoration and condonation
of delay as had been taken by the
respondent plaintiff and as discussed
above, could not be said to be wholly
untenable and thus, it is quite obvious
that the trial court has rightly allowed
the restoration application and did not
commit any factual or otherwise legal
mistake as to give justifiable occasion to
the revisional court to interfere in its
order.
Case law discussed:
J.T. 1998 (6) SC-242 relied on.

(Delivered by Hon'ble Umeshwar Pandey, J.)

1. Heard the learned counsel for the
parties.
116 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Respondent counsel is not present in
spite of the list having been revised

Counter affidavit was filed on some
earlier date on behalf of respondent No. 2.

2. This petition challenges the order
dated 20.10.2005 restoring the suit after
granting
the
delay
condonation
application under Section 5 of the
Limitation Act.

3. The learned counsel contends that
the suit was initially filed by respondent
No.3 for specific performance of contract
of a registered agreement of sale and the
petitioner
was
made
a
proforma
defendant. Since the agreement of sale
was also executed in favour of the
petitioner he applied to the trial court to b
e transposed as plaintiff and the same was
allowed. The petitioner and respondents
No. 3 and 4 are the real brothers. The
petitioner was staying away from the
village and was working in Calcutta. The
Pairvi of the case was being done by his
brother, respondent No.3. It is alleged that
respondent
No.
3
connived
with
respondent No.2, the defendant, and got
the suit dismissed in default and no
knowledge of that was had by the
petitioner till a day before moving of the
restoration application. The suit was
dismissed on 10.2.2000 and restoration
application was given b y the petitioner
on 25.10.2000. The petitioner's plea as
taken for the restoration of the suit was
accepted by the trial court, but the
revisional court giving one or the other
reasons has interfered with that order of
the trial court and rejected the restoration
application.

4. In the facts of present case what is
most striking is that the petitioner/plaintiff
was residing away from the village and
was working at a far distant place like
Calcutta. The contention of the petitioner
that the other plaintiff Lallan had got the
suit dismissed in connivance with the
defendant Smt. Hira Wati further finds
support from the fact that no restoration
application was moved by respondent No.
3 even though he was the original plaintiff
in the suit doing Pairvi of the same. The
agreement of sale is said to have been
executed in favour of the three brothers,
the petitioner and respondents No. 3 and
4. If the decree of specific performance of
contract was to be obtained it would be
obtained in favour of all the three. Why
and under what circumstances respondent
No. 3 who was made in-charge of the
Pairvi of the case did not take any step to
go ahead and get the suit restored, is also
quite striking and appears to be unnatural
that he did not inform his brother the
petitioner working at Calcutta about the
dismissal of the suit. Therefore, the
allegations
of
his
connivance
with
defendant/respondent No.2 is wholly
probablized
in
the
circumstances
prevailing in the case. The revisional
court appears to have wrongly appreciated
the available facts and has twisted the
case to take an adverse decision against
the petitioner.

5. Otherwise also the discretion
exercised by the trial court for permitting
condonation of delay under Section 5 of
the Indian Limitation Act is not to be
usually disturbed by the court exercising
revisional jurisdiction unless it is found
that exercise of discretion was wholly on
untenable
grounds
or
arbitrary
or
perverse.
In
Balakrishnan
Vs.
M.
Krishnamurthy, JT 1998 (6) SC 242, the
Apex
Court
in
such
matters
has
propounded as below:-
1 All] Chhama Shankar PandeyV. D.I.O.S., Kanpur Nagar and others
117
"It is axiomatic that condonation of
delay is a matter of discretion of the court.
Section 5 of the Limitation act does not
say that such discretion can be exercised
only if the delay is within a certain limit.
Length of delay is no matter, acceptability
of the explanation is the only criterion.
Sometimes delay of the shortest range
may be uncondonable due to want of
acceptable explanation whereas in certain
other cases delay of very long range can
be condoned as the explanation thereof is
satisfactory. 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
untrammeled by the conclusion of the
lower court."

6. In the present case also, the trial
court
in
the
aforesaid
facts
and
circumstances had condoned the delay in
filing the restoration application and had
exercised its discretion in favour of the
respondent plaintiff. There is nothing in
the
judgment
of
revisional
court
challenged in this petition, which would
indicate
that
the
trial
court
while
accepting
the
grounds,
had
acted
arbitrarily or in perverse manner. The
grounds for restoration and condonation
of delay as had been taken by the
respondent plaintiff and as discussed
above, could not be said to be wholly
untenable and thus, it is quite obvious that
the trial court has rightly allowed the
restoration
application
and
did
not
commit any factual or otherwise legal
mistake as to give justifiable occasion to
the revisional court to interfere in its
order. In the aforesaid view of the matter
the petition should be allowed and the
order of revisional court should be
quashed and the order of the trial court be
restored.

7. In the result, the petition is
allowed.

The
impugned
order
dated
20.10.2005 passed by the revisional court
is hereby quashed and the order of the
trial court dated 17.5.2004 is restored.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.01.2006

BEFORE
THE HON'BLE D.P. SINGH, J.

Civil Misc. Writ Petition No. 19993 of 2002

Chhama Shankar Pandey
...Petitioner
Versus
District Inspector of schools and others

 ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare
Sri Vinod Kumar Singh
Sri Manish Goyal

Counsel for the Respondents:
Sri S.D. Shukla
S.C.

(A) U.P. Secondary Education Service
Commission (Removal of Difficulties)
(Second
Order
1981-Clause-2
(3)-
Deemed approval-short terms vacancy in
L.T. Grade caused-due to promotion of
permanent
L.T.
Grade
Teachers