# Chandra Pal and another v. State of U.P. and others

- **Citation:** (2012) 2 ILRA 627
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-05-23
- **Case number:** Civil Misc. Writ Petition No. 25522 of 2012
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandra-pal-and-another-v-state-of-u-p-and-others-42237
- **Pages:** 4

## Headnote

Constitution
of
India,
Article
226application under order 9 rule 13allowed by Trail Court condoning the
delay in filing application-revision also
dismissed-Writ
Court-declined
to
interfere on technical objection that no
separate application under heading of
delay condonation filded-obviously at
the time of recalling ex-parte order Trail
Court considered the explanation-given
in affidavit as well as merit of the case -
discretion exercise in proper manner
doing substantial justice-can not be
interfered by Writ Court.

Held: Para 8

In view of the decision of the Apex Court
it
is
abundantly
clear
that
while
considering
the
delay
condonation
application the court has to see the merit
of the case also as the law of limitation is
not meant to take away the right of
Appeal.
The
courts
are
meant
for
imparting justice and not to scuttle the
justice on technicalities. The length of
delay is also not very much material if
628 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
there is a substance on merit. Further
once the discretion has been exercised in
positive manner then it should not be
interfered with unless it is perverse and
based on no material.
Case law discussed:
JT 1987 (1) SC 537=1987 (2) SCR 387; JT
2000 (5) 389

## Text

2 All] Chandra Pal and another V. State of U.P. and others
627
being violative of Article 300-A of
Constitution of India.

37. The petitioner has made a
serious
allegations
agtainst
official
respondents but they proposed not to file
any reply. The manner in which the
auction in question has been held, clearly
shows that it is not valid and there is a
clear non-compliance of rule 285-A. The
petitioner has been deprived of his
property without following the procedure
prescribed in law. For this defect/illegality
in conducting the auction, responsibility
lie solely upon respondent nos. 1 and 2.
The petitioner has suffered and remained
deprived of the benefit of his property for
the last almost 25 years on account a
serious
illegality
committed
by
respondent no. 1 and 2. In these
circumstances, in my view, petitioner is
entitled for a suitable cost which should
be exemplary as well as compensatory in
nature.

38. In view of the above, the writ
petition is allowed.

39. The auction impugned in the
writ petition is hereby quashed. As a
result of quashing of auction in question,
any subsequent proceeding conferring any
right upon respondent no. 4 in respect of
the land in dispute shall stand nullified
and would not confery any right, title,
benefit or interest upon respondent no. 4.
So far as the money deposited by
respondent no. 4 is concerned, he shall be
entitled for its refund. However, for the
simple reason that he has been enjoying
the property in question during the entire
period therefore, there is no occasion to
allow any interest on the amount paid by
respondent no. 4.

40. The petitioner shall also be
entitled to the costs, quantified to Rs.
50,000/- against respondent no. 2.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.05.2012

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 25522 of 2012

Chandra Pal and another
 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Santosh Kumar Pandey

Counsel for the Respondents:
C.S.C.
Sri Mahesh Narain Singh

Constitution
of
India,
Article
226application under order 9 rule 13allowed by Trail Court condoning the
delay in filing application-revision also
dismissed-Writ
Court-declined
to
interfere on technical objection that no
separate application under heading of
delay condonation filded-obviously at
the time of recalling ex-parte order Trail
Court considered the explanation-given
in affidavit as well as merit of the case -
discretion exercise in proper manner
doing substantial justice-can not be
interfered by Writ Court.

Held: Para 8

In view of the decision of the Apex Court
it
is
abundantly
clear
that
while
considering
the
delay
condonation
application the court has to see the merit
of the case also as the law of limitation is
not meant to take away the right of
Appeal.
The
courts
are
meant
for
imparting justice and not to scuttle the
justice on technicalities. The length of
delay is also not very much material if
628 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
there is a substance on merit. Further
once the discretion has been exercised in
positive manner then it should not be
interfered with unless it is perverse and
based on no material.
Case law discussed:
JT 1987 (1) SC 537=1987 (2) SCR 387; JT
2000 (5) 389

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

1. Through this writ petition, the
petitioners have prayed for issuing a writ
of certiorari quashing the order dated
28.3.2012 passed by respondent no. 2 and
order
dated
6.6.2008
passed
by
respondent no. 3. Vide order dated
6.6.2008,
the
application
of
the
respondent-defendant filed under Order 9
Rule 13 of Code of Civil Procedure for
setting aside the exparte decree was
allowed after condoning the delay and by
the subsequent order, the revision filed by
the petitioner which was numbered as
Revision No. 443 of 2007-2008 has been
dismissed.

2. Sri Santosh Kumar Pandey,
learned counsel for the petitioner, while
assailing
the
impugned
orders,
has
submitted that there was no section 5
application along with application for
setting aside the exparte decree. He has
also submitted that the application was
barred by time, therefore it should have
been accompanied with an application for
condonation of delay with supporting an
affidavit explaining the reason why the
application was not filed well within time.
He further contends that both the courts
below have erred in ignoring this aspect
of the matter as admittedly there was no
application for condonation of delay and a
separate affidavit was filed which was not
the part of Section 5 application, therefore
the courts below have erred taking that
into consideration for condoning the delay
and setting aside the exparte decree. In his
submissions, the summons were duly
served and the respondents avoided to
participate in the proceeding.

3. Refuting the submission of
learned counsel for the petitioner, Sri
Gaurav
Sisodiya,
learned
counsel
appearing for the respondent no. 4
submits that the delay have been
condoned and the exparte decree has been
set aside and now substantial justice have
been done to the parties and this Court
sitting
under
Article
26
of
the
Constitution of India should not enter in
these controversy.

4. I have heard learned counsel for
the
parties
and
considered
their
submissions.

5. From the perusal of the record, it
transpires that although there was no
application for condonation of delay but
the grounds have been made praying for
condonation of delay and an affidavit was
also filed explaining the reason as to why
the application was not filed well within
time, there may be some technical defects
in the format and filing of the application
for condonation of delay but the Apex
court has held that once the delay has
been condoned meaning thereby the court
has exercised the discretion in positive
manner, the higher Court should not
interfere with such order where the delay
has been condoned.

6. The law relating to the delay
condonation has been dealt with by the
Apex Court in numerous cases and ratio
of those cases favours the disposal of the
cases on merit instead of rejecting the
same on the ground of delay. The Apex
2 All] Chandra Pal and another V. State of U.P. and others
629
Court in the case of Collector, Land
Acquisition, Anantnag & Anr. Vs. Mst.
Katiji & Ors. ( JT 1987 (1) SC 537 =
1987 (2) SCR 387) has given following
guidelines while dealing with the delay
condonation application :-

1. Ordinarily a litigant does not
stand to benefit by lodging an appeal
late.

2. Refusing to condone delay can
result in a meritorious matter being
thrown out at the very threshold and
cause of justice being defeated. As
against this when delay is condoned the
highest that can happen is that a cause
would be decided on merits after hearing
the parties.

3. 'Every day's delay must be
explained' does not mean that a pedantic
approach should be made. Why not every
hour's delay, every second's delay? The
doctrine must be applied in a rational
common sense pragmatic manner.

4. When substantial justice and
technical
considerations
are
pitted
against each other, cause of substantial
justice deserves to be preferred for the
other side cannot claim to have vested
right in injustice being done because of a
non-deliberate delay.

5. There is no presumption that
delay is occasioned deliberately, or on
account of culpable negligence, or on
account of mala fides. A litigant does not
stand to benefit by resorting to delay. In
fact he runs a serious risk.

6. It must be grasped that judiciary
is respected not on account of its power
to legalize injustice on technical grounds
but because it is capable of removing
injustice and is expected to do so."

7. In the case of State of Bihar and
others Vs. Kameshwar Singh and others
reported in JT 2000 (5) 389 after
considering various cases of the Apex
Court on condonation of delay application
has held :

Para 12................ " The expression
'sufficient cause' should, therefore, be
considered with pragmatism in justiceoriented process approach rather than the
technical detention of sufficient case for
explaining every day's delay. The factors
which are peculiar to and characteristic
of the functioning of pragmatic approach
in justice -oriented process. The court
should decide the matters on merits unless
the case is hopelessly without merit. No
separate standards to determine the cause
laid by the State vis-a-vis private litigant
could be laid to prove strict standards of
sufficient cause".

Para 13................. " 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 a 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,
630 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
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".

8. In view of the decision of the
Apex Court it is abundantly clear that
while considering the delay condonation
application the court has to see the merit
of the case also as the law of limitation is
not meant to take away the right of
Appeal. The courts are meant for
imparting justice and not to scuttle the
justice on technicalities. The length of
delay is also not very much material if
there is a substance on merit. Further once
the discretion has been exercised in
positive manner then it should not be
interfered with unless it is perverse and
based on no material.

9. Here in this case, the delay has
been condoned by the court below i.e.
Sub-Divisional Officer Faridpur and the
revision filed by the petitioner has been
dismissed, now those orders are impugned
in the writ petition. Sitting under Article
226 of the Constitution of India, I am not
inclined to interfere in such a matter
where the delay has been condoned.

10. However, considering the facts
and circumstances of this case, I find that
the cost imposed by the courts below of
Rs. 300/- is very less and the same is
being enhanced by Rs.1,000/- which is
directed to be paid to the petitioners
before
the
court
of
Sub-Divisional
Officer, where the case is pending. In case
the respondents, herein, deposit of Rs.
1,000/- along with certified copy of the
order of this Court before the SubDivisional Officer, the Sub-Divisional
Officer
shall
proceed
thereafter
in
accordance with law.

11. The writ petition is disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.05.2012

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. writ Petition No. 27344 of 2012

Ahmad Rasheed and others ...Petitioners
Versus
State of U.P. Thru Secy. and others

 ...Respondents

Counsel for the Petitioner:
Sri Ramesh Kumar Shukla
Sri Anil Sharma

Counsel for the Respondents:
C.S.C.

Constitution of India, Article 226-power
to hold election-limited only to hold
election-by person/authority nominated
by court-where only one member by
Court-where only one member survivingauthorize controller or such nominated
person not competent to induct new
member-only Court to frame scheme
permissible under law-petition disposed
of accordingly.

Held: Para 19

However, in the opinion of the Court the
only remedy for the petitioners to file a
civil suit for intervention in the matter so
as to come over the peculiar situation,
which has arising in the institution for
want of valid members of the General
Body and it is for the competent Civil