# Fundan & Ors v. State of U.P. & Anr

- **Citation:** (2022) 1 ILRA 78
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022
- **Case number:** First Appeal Defective No. 172 of 2015
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/fundan-ors-v-state-of-u-p-anr-44299
- **Pages:** 11

## Headnote

Limitation Act, 1963 - Section 5 -
Condonation of delay - sufficient cause - if
some
person
has
taken
a
relief
approaching Court immediately after the
cause of action had arisen, other persons
cannot take benefit thereof approaching
the Court at a belated stage - Petitioners
who are not vigilant but content to be
dormant and chose to sit on the fence till
somebody else's case came to be decided,
can not re-agitate claims which they had
not pursued for several years (Para 19)

Land of the appellant acquired in the year 1980
- S.L.O. gave award on 31.03.1986 - Appeal
filed beyond limitation after 28 years, on coming
to know that a higher compensation has been
awarded to some persons - Held - appellants
cannot be permitted to take impetus of the
judgment passed at the behest of some diligent
person - Inordinate delay of 28 years in filing
appeal on the ground of some judgment of the
High Court awarding higher compensation, is
not sufficient cause for condonation of delay -
 delay condonation application rejected & appeal
dismissed with cost of Rs.5,000/- (Para 5, 19)

Dismissed.(E-5)

List of Cases cited :

## Text

78 INDIAN LAW REPORTS ALLAHABAD SERIES

(vii) The computer generated
copy of such order shall be self attested by
the counsel of the party concerned.

(viii)
The
concerned
Court/
Authority/Official
shall
verify
the
authenticity of such computerized copy of
the order from the official website of High
Court Allahabad
and
shall
make
a
declaration of such verification in writing.
----------
(2022)01ILR A78
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.12.2016

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.

First Appeal Defective No. 172 of 2015

Fundan & Ors. ...Appellants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellants:
Sri S.K. Tyagi

Counsel for the Respondents:

Limitation Act, 1963 - Section 5 -
Condonation of delay - sufficient cause - if
some
person
has
taken
a
relief
approaching Court immediately after the
cause of action had arisen, other persons
cannot take benefit thereof approaching
the Court at a belated stage - Petitioners
who are not vigilant but content to be
dormant and chose to sit on the fence till
somebody else's case came to be decided,
can not re-agitate claims which they had
not pursued for several years (Para 19)

Land of the appellant acquired in the year 1980
- S.L.O. gave award on 31.03.1986 - Appeal
filed beyond limitation after 28 years, on coming
to know that a higher compensation has been
awarded to some persons - Held - appellants
cannot be permitted to take impetus of the
judgment passed at the behest of some diligent
person - Inordinate delay of 28 years in filing
appeal on the ground of some judgment of the
High Court awarding higher compensation, is
not sufficient cause for condonation of delay -
 delay condonation application rejected & appeal
dismissed with cost of Rs.5,000/- (Para 5, 19)

Dismissed.(E-5)

List of Cases cited :

1. Rup Diamonds Vs U.O.I. 1989 (2) SCC 356

2. St.of Orrisa Vs Mamta Mohanty 2011 (3) SCC
436

3. St. of Karn. Vs. S.M. Kotrayya (1996) 6 SCC 267

4. Mafata lal Industries Ltd. Vs U.O.I. 1997 (5)
SCC 536

5. Basawaraj & anr. Vs Special Land Acquisition
Officer (2013) 14 SCC 81

6. Brijesh Kumar & ors. Vs St. of Har. & ors.
2014 (11) SCC 351

7. Jagdish Lal Vs St. of Har. 1997 (6) SCC 538

8. U.O.I. & anr. vs Raghubir Singh (Dead) By
Lrs. Etc 1989 (2) SCC 754

9. Pundlik Jalam Patil Vs Executive Engineer,
Jalgaon Medium Project, (2008) 17 SCC 448

10. Simrat Kaur & ors. Vs. St. of Har. & ors.
(2015) 13 SCC 563

11. Esha Bhattacharjee Vs Raghunathpur Nafar
Academy & Ors. (2013) 12 SCC 649

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

1. Heard Sri S.K. Tyagi, learned
counsel for the applicants/ appellants.

2. This appeal has been filed beyond
limitation 28 years and 355 days along with
1 All. Fundan & Ors. Vs. State of U.P. & Anr.
79
an application for leave to appeal and a
delay
condonation
application.
The
deponent of the affidavit is one Sri Amit
Nagar, aged about 27 years and has
claimed himself to be grandson of appellant
no.1/2.

3. From the perusal of the impugned
judgment, it appears that land of one Sri
Fundan son of Chhote of village Gejha
Tilpatabad, Tehsil Dadri, District Gautam
Budha Nagar was acquired by notification
under Section 4(1) of the Land Acquisition
Act, 1894 (hereinafter referred to as 'the
Act') dated 01.09.1977. The S.L.A.O. made
the award on 15.12.1981. At the instance of
the
Executive
Engineer
Irrigation,
Construction
Division,
Ghaziabad,
the
acquisition was made for total area of 33-1213 bighas for construction of main drain in
the area of NOIDA. The aforesaid acquired
land includes the land of Sri Fundan. Several
references were made at the instance of the
tenure holders including L.A.R. No.127 of
1982 filed by the aforesaid Sri Fundan and
all the references were decided by the court
of III Additional District Judge, Ghaziabad
by judgment dated 31.03.1986 awarding
compensation @ Rs. 12,000/- per bigha
along with other benefits under the Act. As
per affidavit of the applicant, the aforesaid,
Sri Fundan died in the year 1992. In the
affidavit
accompanying
the
delay
condonation application, the applicant has
stated as under:-

1. "That the deponent is grandson
of appellant no.2, as such he is well
acquainted with the facts deposed to below.

2. That the present appeal has
been preferred by the appellants for
enhancement of compensation given in the
award
dated
31.03.1986
passed
by
Additional District Judge, Ghaziabad
now Gautam Budh Nagar.

3. That the land of the appellant
Sri Fundan acquired in the year 1980 and
S.L.O. given the award on 31.03.1986.

4. That the total area of the land
acquired by State Government was only 27-7
and
S.L.O.
only
awarded
the
compensation of Rs.16,107.35.

5. That the appellant Sri Fundan
was are very poor and illiterate farmer and
he was not given proper advice, thus the
appellant Sri Fundan could not preferred
the appeal against the award dated
31.03.1986.

6. That the appellant had no
other source of income and therefore he
could not file the appeal and was not able
to spent huge amount in filing the appeal in
the Hon'ble High Court.

7. That the appellant Sri Fundan
had no son and he had only one daughter
Smt. Ramwati who was married in the
village Milakh Lakkshi, Ghaziabad now
Gautam Budh Nagar.

8. That the appellant no.1 Sri
Fundan died in the year 1992 and daughter
of Sri Fundan thereafter had no connection
and link with the village Gejha Tilpatabad.

9. That daughter of Sri Fundan is
now 72 years old and her entire family is
living out of village Gejha Tilpatabad
therefore he did not get any knowledge
about the litigation for compensation on
behalf of other farmers of the village.

10. That the deponent recently
met to one of the farmer of village Gejha
Tilpatabad Sri Ram Kumar Tyagi and
during discussion Sri Ram Kumar Tyagi
informed the deponent about the judgment
of
Hon'ble
High
Court
regarding
enhancement of compensation of the
farmers of villag Gejha Tilpatabad.
80 INDIAN LAW REPORTS ALLAHABAD SERIES

11. That Sri Ram Kumar Tyagi
also
informed
that
their
maternal
grandfather Sri Fundan was also having
agricultural
land
in
village
Gejha
Tilpatabad which was acquired by the State
Government for construction of canal
along with land of other farmers.

12. That the deponent thus
contacted the counsel of Hon'ble High
Court and upon his direction obtained
certified copy of Judgment and Decree and
filing the present appeal.

13. That therefore the Hon'ble
Court may be pleased to condone the delay
of 28 years in filing the present appeal on
the facts and circumstances stated above,
so that the appellant may get some
compensation for their land as has been
given to other tenure holders for their land
during the same period in the interest of
justice."

4. All the paragraphs of the affidavit
have been sworn by the deponent i.e. Sri
Amit Nagar on personal knowledge who is
27 years old and his birth year may be
approximately the year 1988. Therefore, he
can not have personal knowledge of the
matters as stated in paras 3, 4, 5 and 6 of
the affidavit which are of periods much
before his birth. That apart, according to
the case of the applicant, the tenure holder,
Sri Fundan died in the year 1992.
Therefore, the limitation for filing the
appeal under Section 54 of the Act, had
expired much before his death. Sri Fundan
had accepted the impugned judgment
which attained finality. Even the daughter
of the aforesaid, Sri Fundan had not
preferred any appeal. Now after about 29
years, this appeal has been filed along with
a
delay
condonation
application
for
condonation of delay without disclosing
any sufficient cause.

5. From perusal of the aforequoted
affidavit, particularly para 10 thereof
indicates that the appellant has filed this
appeal beyond limitation by 28 years and
355 days on coming to know that a higher
compensation has been awarded to some
persons who diligently filed first appeal
before the High Court and contested it.
Delay in such matters can not be condoned.

6. In Rup Diamonds Vs. Union of
India, 1989 (2) SCC 356 (para-8) Hon'ble
Supreme Court laid down the law that
petitioners who were not vigilant but were
dormant and chose to sit on the fence till
somebody else's case came to be decided,
then their case cannot be considered on the
analogy of one where a law had been
declared unconstitutional and void by a
court, so as to enable persons to recover
monies paid under the compulsion of a law
later so declared void. Hon'ble Supreme
Court rejected the petition on the ground of
delay and latches observing as under:

"8. ........ there is one more
ground which basically sets the present
case apart. Petitioners are re-agitating
claims which they had not pursued for
several years. Petitioners were not vigilant
but were content to be dormant and chose
to sit on the fence till somebody else's case
came to be decided......................"

(Emphasis supplied by me)

7. In the case of State of Orrisa Vs.
Mamta Mohanty, 2011 (3) SCC 436
(para-54), Hon'ble Supreme Court rejected
the delay condonation application holding
that where the petitioner approached the
Court after coming to know of the relief
granted in a similar case as the same cannot
furnish a proper explanation for delay and
laches.
1 All. Fundan & Ors. Vs. State of U.P. & Anr.
81

8. In the case of State of Karnataka
Vs. S.M. Kotrayya, (1996) 6 SCC 267,
while considering the provisions of limitation
under
Section
21
of
the
Central
Administrative Tribunal Act, 1985, Hon'ble
Supreme Court held that the explanation
offered was that the applicants/ petitioners
came to know of the relief granted by the
Tribunal in August 1989 and that they filed
the petition immediately thereafter, is not a
proper explanation at all. What was required
of them to explain under sub-sections (1) and
(2) of Section 21 was as to why they could
not avail of the remedy of redressal of their
grievances before the expiry of the period
prescribed under sub-section (1) or (2). It was
held that the Tribunal was wholly unjustified
in condoning the delay

9. In the case of Mafata lal
Industries Ltd. vs. Union Of India, 1997
(5) SCC 536 (para-79), nine Judges
Constitution Bench of Hon'ble Supreme
Court, held as under:

"79.We may now consider a
situation where a manufacturer pays a
duty unquestioningly - or he questions the
levy but fails before the original authority
and keeps quiet. It may also be a case
where he files an appeal, the appeal goes
against him and he keeps quiet. It may
also be a case where he files a second
appeal/revision, fails and then keeps quiet.
The orders in any of the situations have
become final against him. Then what
happens is that after a year, five years, ten
years, twenty years or even much later, a
decision is rendered by a High Court or
the Supreme Court in the case of another
person holding that duty was not payable
or was payable at a lesser rate in such a
case. (We must reiterate and emphasize
that while dealing with this situation we
are keeping out the situation where the
provision under which the duty is levied is
declared unconstitutional by a court; that
is a separate category and the discussion in
this paragraph does not include that
situation. In other words, we are dealing
with a case where the duty was paid on
account of misconstruction, misapplication
or wrong interpretation of a provision of
law, rule, notification or regulation, as the
case may be.) Is it open to the
manufacturer to say that the decision of a
High Court or the Supreme Court, as the
case may be, in the case of another person
has made him aware of the mistake of law
and, therefore, he is entitled to refund of
the duty paid by him? Can he invoke
Section 72 of the Contract Act in such a
case and claim refund and whether in such
a case, it can be held that reading Section
72 of the Contract Act along with Section
17 (1)(c) of the Limitation Act, 1963, the
period of limitation for making such a
claim for refund, whether by way of a suit
or by way of a writ petition, is three years
from the date of discovery of such mistake
of law? Kanhaiya Lal is understood as
saying that such a course is permissible.
Later decisions commencing from Bhailal
Bhai have held that the period of
limitation in such cases is three years
from the date of discovery of the mistake
of law. With the greatest respect to the
learned Judges who said so, we find
ourselves unable to agree with the said
proposition.
Acceptance
of
the
said
proposition would do violence to several
well accepted concepts of law. One of the
important principles of law, based upon
public policy, is the sanctity attaching to
the finality of any proceeding, be it a suit
or
any
other
proceeding.
......................................................................
82 INDIAN LAW REPORTS ALLAHABAD SERIES
..................... ............................... Once this
is so, it is ununderstandable how an
assessment/adjudication made under the
Act levying or affirming the duty can be
ignored because some years later another
view of law is taken by another court in
another person's case. Nor is there any
provision in the Act for reopening the
concluded proceedings on the aforesaid
basis. We must reiterate that the provisions
of the Central Excise Act also constitute
"law" within the meaning of Article 265
and any collection or retention of tax in
accordance or pursuant to the said
provisions is collection or retention under
"the authority of law" within the meaning
of the said article. In short, no claim for
refund is permissible except under and in
accordance with Rule 11 and Section 11-B.
An order or decree of a court does not
become
ineffective
or
unenforceable
simply because at a later point of time, a
different view of law is taken. If this
theory is applied universally, it will lead to
unimaginable chaos. It is, however,
suggested that this result follows only in tax
matters because of Article 265. The
explanation
offered
is
untenable,
as
demonstrated hereinbefore. As a matter of
fact, the situation today is chaotic because
of the principles supposedly emerging from
Kanhaiya Lal and other decisions following
it. Every decision of this Court and of the
High Courts on a question of law in
favour of the assessee is giving rise to a
wave of refund claims all over the country
in respect of matters which have become
final and are closed long number of years
ago. We are not shown that such a thing is
happening anywhere else in the world.
Article 265 surely could not have been
meant to provide for this. We are,
therefore, of the clear and considered
opinion that the theory of mistake of law
and the consequent period of limitation of
three years from the date of discovery of
such mistake of law cannot be invoked by
an assessee taking advantage of the
decision in another assessee's case. All
claims for refund ought to be,l and ought to
have been, filed only under and in
accordance with Rule 11/ Section 11-B and
under no other provision and in no other
forum. An assessee must succeed or fail in
his own proceedings and the finality of the
proceedings in his own case cannot be
ignored and refund ordered in his favour
just because in another assessee's case, a
similar point is decided in favour of the
manufacturer/assessee. (See the pertinent
observations of Hidayatullah, C.J. In
Tilokchand Motichand extracted in para
46.) The decisions of this Court saying to
the contrary must be held to have been
decided wrongly and are accordingly
overruled herewith."

(Emphasis supplied by me)

LAW OF LIMITATION:-

10. The ''law of limitation' is
enshrined in the legal maxim ''interest
reipublicae up sit finis litium' which means
that it is for the general welfare that a
period be put to litigation. Rules of
limitation are not meant to destroy the
rights of the parties, rather the idea is that
every legal remedy must be kept alive for a
legislatively fixed period of time.

11. Meaning of the word ''sufficient'
is ''adequate' or ''enough', inasmuch as may
be necessary to answer the purpose
intended. The words ''sufficient cause'
mean that the parties should not have acted
in a negligent manner or there was a want
of bona fide on his part in view of the facts
and circumstances of a case or it cannot be
alleged that the party has not acted
diligently
or
remained
inactive.
The
applicant must satisfy the Court that he was
1 All. Fundan & Ors. Vs. State of U.P. & Anr.
83
prevented by any "sufficient cause" from
prosecuting
his
case,
and
unless
a
satisfactory explanation is furnished, the
Court cannot allow the application for
condonation of delay. The court has to
examine whether the mistake is bona fide
or was merely a device to cover an ulterior
purpose. The expression "sufficient cause"
should normally be given a liberal
interpretation to ensure that substantial
justice is done, but only so long as
negligence, inaction or lack of bona fides
cannot be imputed to the party concerned.
Whether or not sufficient cause has been
furnished, can be decided on the facts of a
particular case and no straitjacket formula
is possible. 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.
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.

12. Where a case has been presented as
the present appeal in the court beyond
limitation, the applicant has to explain the
court as to what was the ''sufficient cause'
which means "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 bonafide 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 ground to condone the delay. In
such circumstances, no court could be justified
in condoning an inordinate delay by
imposing any condition whatsoever.

13. In the case of Basawaraj and
another Vs. Special Land Acquisition
Officer, (2013) 14 SCC 81, Hon'ble Supreme
Court considered the order of the High Court
and rejected the application for condonation of
delay of five and a half years in filing an
appeal under Section 54 of the Act before the
High Court on the ground of illness of one of
the appellant. After referring to the judgments
in the case of Manindra Land and Building
Corporation Ltd. v. Bhootnath Banerjee &
Ors., AIR 1964 SC 1336; Lala Matadin v.
A. Narayanan, AIR 1970 SC 1953; Parimal
v. Veena @ Bharti (2011) 3 SCC 545, and
Maniben
Devraj
Shah
v.
Municipal
Corporation of Brihan Mumbai (2012) 5
SCC 157, Arjun Singh v. Mohindra
Kumar, AIR 1964 SC 993, Madanlal v.
Shyamlal, (2002) (1) SCC 535; and Ram
Nath Sao v. Gobardhan Sao & Ors., (2002)
3 SCC 195, Popat and Kotecha Property v.
State Bank of India Staff Assn. (2005) 7
SCC 510; Rajendar Singh & Ors. v. Santa
Singh & Ors., (1973) 2 SCC 705, Pundlik
Jalam Patil v. Executive Engineer, Jalgaon
Medium Project, (2008) 17 SCC 448, it
upheld the judgment of the High Court and
dismissed the Civil Appeal observing in paras14 & 15 as under:

"14. In P. Ramachandra Rao v.
State of Karnataka, (2002) 4 SCC 578, this
Court held that judicially engrafting
principles
of
limitation
amounts
to
legislating and would fly in the face of law
laid down by the Constitution Bench in
Abdul Rehman Antulay v. R.S. Nayak,
(1992) 1 SCC 225.

15. The law on the issue can be
summarised to the effect that where a case
84 INDIAN LAW REPORTS ALLAHABAD SERIES
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
bonafide 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 ground 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."

(Emaphasis supplied by me)

14. In the case of Brijesh Kumar
and others Vs. State of Haryana and
others, 2014 (11) SCC 351, a claimant/
tenure holder filed S.L.P. challenging the
order of the High Court refusing to
condone the delay of ten years and two
months and 29 days in filing the appeal by
the claimant under Section 54 of the Act
inspite of the fact that other persons who
had preferred appeals in time had been
given a higher compensation. Hon'ble
Supreme
Court
referred
to
various
judgments and held as under:

"11. It is also a well settled
principle of law that if some person has
taken a relief approaching the Court just
or immediately after the cause of action
had arisen, other persons cannot take
benefit thereof approaching the court at a
belated stage for the reason that they
cannot be permitted to take the impetus of
the order passed at the behest of some
diligent person.

15. In the instant case, after
considering the facts and circumstances
and the reasons for inordinate delay of 10
years 2 months and 29 days, the High
Court did not find sufficient grounds to
condone the delay.

16. In view of the facts of the case
and the above-cited judgments, we do not
find any fault with the impugned judgment
(Brijesh Kumar v. State of Haryana, RFA
No.5793 of 2012, decided on 22.11.2013).
The
petitions
lack
merit
and
are
accordingly dismissed."

(Emphasis supplied by me)

15. In the case of Jagdish Lal Vs.
State of Haryana, 1997 (6) SCC 538,
Hon'ble Supreme Court held has under:

"18. ................................. Suffice it to
state that the appellants kept sleeping over
their rights for long and elected to wake up
when they had the impetus from Union of
India Vs. Virpal Singh Chauhan (1995) 6 SCC
684 and Ajit Singh's (1996) 2 SCC 715) ratios.
But Vir Pal Chauhan and Sabharwal's [R.K.
Sabharwal Vs. State of Punjab, (1995) 2 SCC
745] cases, kept at rest the promotion already
made by that date, and declared them as valid;
they were limited to the question of future
promotions given by applying the rule of
reservation, to all the persons prior to the date
of judgment in Sabharwal's case, which
required to examined in the light of the law
laid in Sabharwal's case. Thus earlier
promotions cannot be reopened. Only those
cases arising after that date would be
examined in the light of the law laid down in
1 All. Fundan & Ors. Vs. State of U.P. & Anr.
85
Sabharwal case Vir Pal Chauhan case and
equally Ajit Singh case. If the candidate has
already been further promoted to the higher
echelons of service, his seniority is not open to
be reviewed. In A.B.S. Karamchari Sangh
[(1996) 6 SCC 65] case, a Bench of two
Judges to which two of us, K. Ramaswamy
and G.B. Pattanik, JJ. were members, had
reiterated the above view and it was also held
that all the prior promotions are not open to
judicial review. In Chander Pal & Ors. v.
State of Haryana, (1997) 10 SCC 474, a
Bench of two judges consisting of S.C.
Agrawal and G.T. Nanavati, JJ. considered
the effect of Vir Pal Chauhan, Ajit Singh,
Sabharwal and A.B.S Karmachari Sangh
cases and held that the seniority of those
respondents who had already retired or
promoted to higher posts could not be
disturbed. The seniority of the petitioner
therein and the respondents who were holding
the post in the same level or in the same cadre
would be adjusted keeping in view the ratio in
Vir Pal Chauhan and Ajit Singh's cases; but
promotion, if any, had been given to any of
them during the pendency of this writ petition,
was directed not to be disturbed. Therein, the
candidates appointed on the basis of economic
backwardness, social status or occupation etc.
were eligible for appointment against the post
reserved for backward classes if their income
did not exceed Rs. 18,000/- per annum and
they were given accelerated promotions on the
basis of reservation. In that backdrop, the
above directions came to be issued. In fact, it
did not touch upon Article 16(4) or 16(4-A).
Therefore, desperate attempts of the
appellants to redo the seniority had by
them in various cadres/grades though in
the same services according to the 1974
Rules or 1980 Rules, are not amenable
to judicial review at this belated stage.
The High Court, therefore, has rightly
dismissed the writ petition on the
ground of delay as well."

 (Emphasis supplied by me)

16. The Constitution Bench of
Hon'ble Supreme Court in Union Of India
& Anr vs Raghubir Singh (Dead) By Lrs.
Etc, 1989 (2) SCC 754 (paras-8, 9 & 28),
considered
the
doctrine
of
binding
precedent and held as under:

"8. Taking note of the hierarchical
character of the judicial system in India, it is
of paramount importance that the law
declared by this Court should be certain,
clear and consistent. It is commonly known
that most decisions of the courts are of
significance
not
merely
because
they
constitute an adjudication on the rights of the
parties and resolve the dispute between them,
but also because in doing so they embody a
declaration of law operating as a binding
principle in future cases. In this latter aspect
lies their particular value in developing the
jurisprudence of the law.

9. The doctrine of binding
precedent has the merit of promoting a
certainty and consistency in judicial
decisions,
and
enables
an
organic
development of the law, besides providing
assurance to the individual as to the
consequence of transactions forming part
of his daily affairs. And, therefore, the
need
for
a
clear
and
consistent
enunciation of legal principle in the
decisions of a Court.

28. We are of opinion that a
pronouncement of law by a Division Bench
of this Court is binding on a Division
Bench of the same or a smaller number of
Judges, and in order that such decision be
binding, it is not necessary that it should be
a decision rendered by the Full Court or a
86 INDIAN LAW REPORTS ALLAHABAD SERIES
Constitution Bench of the Court. We would,
however, like to think that for the purpose
of imparting certainty and endowing due
authority decisions of this Court in the
future should be rendered by Division
Benches of at least three Judges unless, for
compelling
reasons,
that
is
not
conveniently possible."

(Emphasis supplied by me)

17. In the case of Pundlik Jalam
Patil v. Executive Engineer, Jalgaon
Medium Project (supra), Hon'ble Supreme
Court considered the order of the High
Court condoning the delay of 1724 days in
preferring an appeal by the State under
Section 54 of the Act against the
enhancement of compensation by the
reference court and held as under:

"14. It is true that the power to
condone the delay rests with the court in
which the application was filed beyond
time and decide whether there is sufficient
cause for condoning the delay and
ordinarily the superior court may not
interfere with such discretion even if some
error is to be found in the discretion so
exercised by the court but where there is
no sufficient cause for condoning the delay
but the delay was condoned, it is a case of
discretion not being exercised judicially
and the order becomes vulnerable and
susceptible for its correction by the
superior court. The High Court having
found
that
the
respondent
in
its
application made incorrect submission
that it had no knowledge of the award
passed by the Reference Court ought to
have refused to exercise its discretion. The
High Court exercised its discretion on
wrong principles. In that view of the
matter we cannot sustain the exercise of
discretion in the manner done by the High
Court.

15. Whether the respondent had
satisfied the court that it had sufficient
cause for not preferring the appeals within
the prescribed time? Section 5 of the
Limitation Act provides for extension of
prescribed period of limitation in certain
cases and confers jurisdiction upon the
court to admit any application or any
appeal after the prescribed period if it is
satisfied that the appellant or the applicant
had sufficient cause for not preferring such
appeal or application within the prescribed
period.

20. The respondent beneficiary
of the acquisition did not initiate any steps
whatsoever before the expiry of limitation
and no circumstances are placed before
the court that steps were taken to file
appeals but it was not possible to file the
appeals within time.

23. On the facts and in the
circumstances, we are of the opinion that
the respondent beneficiary was not diligent
in availing the remedy of appeal. The
averments made in the application seeking
condonation of delay in filing appeals do
not show any acceptable cause much less
sufficient
cause
to
exercise
courts'
discretion in its favour.

24. Learned senior counsel for
the respondent also placed reliance upon
the decision of this court in Union of India
vs. Sube Ram and others [(1997) 9 SCC
69]. This court condoned delay of 3379
days in preferring the appeals by Special
Leave. The said decision is mostly confined
to the facts of that case and does not lay
down any law as such requiring us to make
any further analysis of the judgment.

29. It needs no restatement at
our hands that the object for fixing time
limit for litigation is based on public
policy fixing a life span for legal remedy
for the purpose of general welfare. They
are meant to see that the parties do not
1 All. Fundan & Ors. Vs. State of U.P. & Anr.
87
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.

(Emphasis supplied by me)"

18. In the case of Simrat Kaur and
others Vs. State of Haryana and others,
(2015) 13 SCC 563 (paras-10, 11 & 12),
Hon'ble Supreme Court referred to its
judgments in the case of Mewa Ram Vs. State
of Haryana, (1986) 4 SCC 151, State of
Nagaland vs Lipokao and others, (2005) 3
SCC 752, D. Gopnathan Pillai Vs. State of
Kerla, (2007) 2 SCC 322 and observed as
under:

"Hon'ble the Supreme Court opined
that when mandatory provision is not complied
and the delay is not properly, satisfactorily and
convincingly explained, the Court cannot
condone the delay on sympathetic ground
only."

19. From the above discussion, it is clear
that in the case of Brijesh Kumar and others
(supra), Rup Diamonds (supra) and Mafat
Lal Ind. (supra), Hon'ble Supreme Court has
stated the law that if some person has taken a
relief approaching the court just or immediately
after the cause of action had arisen, other
persons cannot take benefit thereof approaching
the court at a belated stage for the reason that
they cannot be permitted to take impetus of the
order passed at the behest of some diligent
person. Petitioners who were not vigilant but
content to be dormant and chose to sit on the
fence till somebody else's case came to be
decided, can not re-agitate claims which they
had not pursued for several years. These
principles of law are judicially en-grafted
principles and are binding in view of the law
laid down by Hon'ble Supreme Court in the
case of Basawaraj and another (supra) and
the Constitution Bench judgment in the case of
Union of India and another Vs. Raghubir
Singh (dead) by LRs (supra). This squarely
concludes the controversy. Therefore, the
appellants cannot be permitted to take impetus
of the judgment passed at the behest of some
diligent person. Inordinate delay of 28 years
and 355 days in filing this appeal on the ground
of some judgment of the High Court awarding
higher compensation, is not sufficient cause for
condonation of delay.

20. The affidavit does not disclose
"sufficient cause" indicating an adequate and
enough reason which prevented the appellant to
approach the court within limitation. In any case,
the appellant was totally negligent and not bona
fide and remained inactive for about 29 years
and, therefore, it is not justified to condone such
an inordinate delay. In fact the attempt of the
appellant in filing these appeals is a device to
cover an ulterior purpose which itself is reflected
from the facts as noted above. The argument of
learned counsel for the appellant that in the facts
of the case, the concept of liberal approach
should be adopted, deserves to be rejected
inasmuch as the concept of liberal approach has
to encapsulate the concept of reasonableness and
it cannot be allowed an unfettered free play. The
conduct, behaviour and attitude of the appellants
relating to their inaction, negligence, lack of
bonafides as has been discussed in detail above;
dis-entitles them for condonation of inordinate
delay of about 29 years. In the case of Esha
Bhattacharjee
v.
Raghunathpur
Nafar
Academy & Ors. (2013) 12 SCC 649, Hon'ble
Supreme Court held that increasing tendency to
perceive delay as a non-serious matter and,
hence, lackadaisical propensity exhibited in a
nonchalant manner requires to be curbed, of
course, within legal parameters.
88 INDIAN LAW REPORTS ALLAHABAD SERIES

21. In any case, the appellants kept
sleeping over their rights for about 29 years
and allegedly elected to wake up on the
basis of some judgment of the High Court
relating to a different acquisition and the
village, and therefore, at this belated stage,
the impugned judgment cannot be made
amenable to judicial review. The appellant
wants to re-agitate the claims which they
had not pursued for about 29 years and
remained dormant and not vigilant and,
therefore, the inordinate delay of 28 years
and 355 days in filing the appeal without
there being any sufficient cause, cannot be
condoned.

22. In similar circumstances, this Court
has considered in detail the question of
condonation of delay and filing of such types of
appeal after expiry of 27-28 years of limitation
and dismissed the appeal by judgment dated
09.12.2016 passed in First Appeal No.126 of
2016 (Hari Singh Vs. State of U.P.).

23. In view of the aforesaid, the
application for leave to appeal as well as
the delay condonation application are
rejected. Consequently, this appeal is also
dismissed with cost of Rs.5,000/-, which
shall be deposited by the appellant within a
month from today with the Legal Cell
Authority, High Court, Allahabad.
----------
(2022)01ILR A88
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.12.2021

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Second Appeal No. 1718 of 1988

Laxman Das Sindhi ...Appellant
Versus
Ganesh Prasad Sen & Ors. ...Respondents
Counsel for the Appellant:
Sri S.M. Chaturvedi, Sri A.N. Bhargava,
Anita Misra, Sri S.M. Dayal, Sri Saurabh
Kumar Tiwari

Counsel for the Respondents:
Sri R.P. Tewari, Sri K.P. Tewari, Sri Rama
Nand Gupta, Sri Rishikesh Tripathi, Sri S.S.
Sengar

A. Tenancy Rights - Suit for partition of
tenancy
rights
-
Maintainability
-
tenancy rights between joint tenants
can be subject to partition - suit for
partition is maintainable for partition of
tenancy rights - Joint tenants have right
to partition in the tenancy rights - mode
of partition - What will be the mode of
partition may depend upon the nature of
tenanted property which can be looked
into in final decree proceedings (Para
10)

B. Surrender of tenancy by one tenant -
Effect - surrender by one of the joint
tenants will not amount to surrender by
remaining joint tenants & it will not be
binding on the remaining joint tenants - A
joint tenant can surrender only his rights -
Remaining
tenants,
who
have
not
surrendered the tenancy right, their rights
of tenancy will exist (Para 13)

Chiranji Lal was the original tenant - after his
death his legal heirs became joint tenants of the
disputed shop, however only one of the joint
tenants i.e. defendant no. 1 was in actual and
exclusive possession of the disputed shop - During
pendency
of
the
case
defendant
no.
1
 surrendered the tenancy rights & gave possession
to the landlord who after taking possession let it to
the appellant (defendant no. 5 ) - now appellant is
sole tenant in possession of the disputed shop -
 Held - subject matter of the suit was tenancy
rights in the disputed shop which is no more inexistence and the tenanted shop is in exclusive
possession of the newly inducted tenant the
appellant. Hence, the suit has become infructuous
and now no decree for partition of tenancy rights
can be passed (Para 13)

Allowed.(E-5)