# Habib Ahmad Khan v. The U.P. Sunni Central of Waqfs and others

- **Citation:** (2011) 1 ILRA 2
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-01-06
- **Case number:** Civil Revision No. 18 of 1988
- **Bench:** Anil Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/habib-ahmad-khan-v-the-u-p-sunni-central-of-waqfs-and-others-41834
- **Pages:** 5

## Headnote

Code of Civil Procedure-Section 115-Civil
Revision-Trail
court
rejected
delay
condonation application-as provision of
Section 5 of limitation Act not applicable
consequently rejected the application for
reference under section 33(2) of Muslim
waqf
Act
1960-held
highly
hipertechnical-if substantial justice and
technicality pitted-court should choose
Substantial
justice-order
set-a-sidedirection for fresh decision given.

Held: Para 15

Needless to mention here that in respect
to the matter relating to condonation of
delay, it is settled proposition of law that
liberal consideration shall be given in
order to advance the substantial justice.
If technical and substantial justice are
pitted together, the way should be given
to the substantial justice, and there is no
need to explain day to day delay in filing
an application for condonation of delay.
1 All] Habib Ahmad Khan V. The U.P. Sunni Central of Waqfs and others
3
Accordingly, the impugned order dated
04.09.1987 passed by the Court below is
arbitrary in nature and liable to be set
aside.
Case law discussed:
AIR 1969 SC 575, AIR 1976 SC 237, AIR 1984
SC 1744, 1987(13) ALR 306 (SC), 1987
(Suppl.) SCC 338, (1998) 7 SCC 133, 2001
(44) ALR 577 (SC).

## Text

2 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
an afterthought, the present special appeal
has been filed, after more than one year.

7. The tendency of the State
Government, government departments,
local bodies and authorities etc., not to
comply with the order till the contempt
petition is filed and notices are issued,
even without filing any special appeal or
challenging the order passed in the writ
petition is spreading like an epidemic.

8. This Court takes notice of the said
fact in the context of a litigant who comes
to the Court, even after getting an order in
his favour from the highest Court of the
State, is not allowed to take the benefit of
the same by such deliberate delaying
tactics in complying with the Court's
order by the authority concerned.

9. This Court has repeatedly
pronounced that if the authority or any
person, for that matter feels aggrieved by
the orders of the Court, he has no option
but to comply with the same, unless he
challenges the said order in any superior
forum and gets an interim order of stay
against the said order. Authorities who are
responsible and obliged to comply with
the orders passed by the Court with all
promptness, cannot save themselves by
adopting
delaying
tactics
and
by
approaching the Court by filing the
special
appeal
when
contempt
proceedings are drawn.

10. Apart from this, instant is a case
where no illegality could be pointed out
or can be pointed out in the order passed
by the learned Single Judge.

11. That being so, there was in fact,
no occasion for the appellants to file the
special appeal.

12. We, therefore, do not find any
illegality in the order passed by the
learned Single Judge.

13. The special appeal is dismissed.
---------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.01.2011

BEFORE
THE HON'BLE ANIL KUMAR, J.

Civil Revision No. 18 of 1988

Habib Ahmad Khan

 ...Petitioner
Versus
The U.P. Sunni Central of Waqfs and
others

 ...Respondent

Counsel for the Petitioner:
M.A. Khan

Counsel for the Respondent:
Z. Zilani

Code of Civil Procedure-Section 115-Civil
Revision-Trail
court
rejected
delay
condonation application-as provision of
Section 5 of limitation Act not applicable
consequently rejected the application for
reference under section 33(2) of Muslim
waqf
Act
1960-held
highly
hipertechnical-if substantial justice and
technicality pitted-court should choose
Substantial
justice-order
set-a-sidedirection for fresh decision given.

Held: Para 15

Needless to mention here that in respect
to the matter relating to condonation of
delay, it is settled proposition of law that
liberal consideration shall be given in
order to advance the substantial justice.
If technical and substantial justice are
pitted together, the way should be given
to the substantial justice, and there is no
need to explain day to day delay in filing
an application for condonation of delay.
1 All] Habib Ahmad Khan V. The U.P. Sunni Central of Waqfs and others
3
Accordingly, the impugned order dated
04.09.1987 passed by the Court below is
arbitrary in nature and liable to be set
aside.
Case law discussed:
AIR 1969 SC 575, AIR 1976 SC 237, AIR 1984
SC 1744, 1987(13) ALR 306 (SC), 1987
(Suppl.) SCC 338, (1998) 7 SCC 133, 2001
(44) ALR 577 (SC).

(Delivered by Hon'ble Anil Kumar, J.)

1. Heard Sri Mohd. Adil Khan
holding brief of Sri Mohd. Arif Khan,
Senior Advocate, learned counsel for the
revisionist, Km. Rafat Farooqui holding
brief of Sri Z. Zilani, learned counsel for the
respondents and perused the record.

2. Facts of the present case are to the
effect that initially in Suit No. 281 of 1982,
a certificate of registration dated 01.02.1983
of the entire property left by one Sri
Monday
Khan
was
obtained
which
indicated that the entire property was
registered as Waqf property and respondent
no.4 was appointed as Mutawalli.

3. As per the version of the revisionist,
thereafter he came to know the above said
fact
on
17.09.1983
and
moved
an
application for reference under Section
33(2) and Section 29(8) read with Section
71 of U.P. Muslim Waqfs Act, 1960 on
17.12.1983
alongwith
an
application
supported with an affidavit under Section 5
of the Limitation Act.

4. Application under Section 5 of the
Limitation Act was rejected by the court
below vide order dated 27.03.1984 on the
ground that Section 5 of the Limitation Act
was not applicable under the proceedings of
U.P. Muslim Waqfs Act.

5. Aggrieved by the said order,
revisionist had approach this Court by filing
a Revision No. 59 of 1984 allowed by order
dated 18.03.1986 with the direction that
under the U.P. Muslim Waqfts Act,
Limitation Act will apply, accordingly it
was directed to decide the application under
Section 5 of Limitation Act.

6. In view of the above said facts after
remanded the matter in question came for
consideration before the court below,
registered as Misc. Suit No. 64 of 1983(Dr.
Habib Ahmad Khan Vs. U.P. Sunni Central
Board of Waqfs and others).

7. By order dated 04.09.1987, Civil
Judge, Raebareily dismissed the application
of the revisionist under Section 5 of the
Limitation Act on the ground that there was
no sufficient and good explanation and
reason given by the revisionist for
condonation of delay as well as he had
failed to explain the day to day delay in the
matter in question. Accordingly, court
below came to the conclusion that the
reference made by the revisionist was
beyond to the statutory period of 90 days
provided under the Act and passed the
impugned order.

8. Aggrieved by the order dated
04.09.1987 passed by the Civil Judge,
Raebareily, the present revision has been
filed under Section 75 of the U.P. Muslim
Waqf, 1960.

9. Learned counsel for the revisionist
while assailing impugned order under
challenge passed by the Civil Judge,
Raebareily, submits that the same is illegal,
arbitrary and contrary to the judgment
passed by the Hon'ble Supreme Court and
this
Court
that
while
deciding
the
application
under
Section
5
of
the
4 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Limitation Act, liberal consideration should
be given in order to advance the substantial
justice.

10. He further submits that now as per
the settled proposition of law, there is no
necessity whatsoever to explain day to day
delay in moving the application under
Section 5 of the Limitation Act, hence, the
order dated 04.09.1987 passed by the Civil
Judge, Rabareily is illegal and liable to be
set aside.

11. Km. Rafat Farooqui holding brief
of Sri Z. Zilani, learned counsel for the
respondents submits that the order passed
by the court below is perfectly valid and
needs no interference as the revisionist
failed to give sufficient reasons for
condoning the delay while filing the
application under Section 5 of Limitation
Act.

12. I have heard learned counsel for
the parties and gone through the record.

13. So far as the factual matrix of the
present case, it is not disputed that the
provisions of Section 5 of Limitation Act is
applicable in the matter in question.

14. Further, in the present case, the
revisionist moved an application under
Section 33(2) and Section 29(8) read with
Section 71 of U.P. Muslim Waqfs Act,
1960
alongwith
an
application
for
condonation of delay under Section 5 of the
Limitation Act.

15. Needless to mention here that in
respect to the matter relating to condonation
of delay, it is settled proposition of law that
liberal consideration shall be given in order
to advance the substantial justice. If
technical and substantial justice are pitted
together, the way should be given to the
substantial justice, and there is no need to
explain day to day delay in filing an
application for condonation of delay.
Accordingly, the impugned order dated
04.09.1987 passed by the Court below is
arbitrary in nature and liable to be set aside.

16. The Hon'ble Supreme Court in the
case of Shakuntala Devi Jain Vs. Kuntal
Kumari, AIR 1969 SC 575, the Hon'ble
Supreme Court held that unless want bona
fides of such inaction or negligence as
would deprive a party of the protection of
section 5 is proved, the application must not
be thrown out of any delay cannot be
refused to be condoned.

17. In New India Insurance Co. Ltd.
Vs. Smt. Shanti Misra, AIR 1976 SC 237
Hon'ble Supreme Court held that discretion
given by section 5 should not be defined or
crystallized so as to convert a discretionary
matter into a rigid rule of law. The
expression" sufficient cause" should receive
a liberal construction.

18. In O.P. Kathpalia Vs Lakhmir
Singh, AIR 1984 SC 1744 the Hon'ble
Supreme Court held that if the refusal to
condone the delay results in grave
miscarriage of justice, it would be a ground
to condone the delay.

19. In the case of Collector Land
Acquisition Vs. Mst. Kati Ji and others,
1987(13) ALR 306 (SC) Hon'ble Supreme
Court held as follows:-

"The legislator has conferred the
power to condone delay by enacting section
5 of the Limitation Act of 1963 in order to
enable th Courts to do substantial justice to
parties by disposing of matter on "merits".
The expression "sufficient cause" employed
1 All] Habib Ahmad Khan V. The U.P. Sunni Central of Waqfs and others
5
by the Legislature is adequately elastic to
enable the Courts to apply the law in a
meaningful manner which sub serves the
ends of justice - that being the life - purpose
of the existence of the institution of Courts.
It is common knowledge that this Court has
been making a justifiably liberal approach
in matters instituted in this Court. But the
message does not appear to have percolated
down to all the other Courts in the
hierarchy.

And such a liberal approach is
adopted on principle as it is realized that:-

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 he decided on
merit 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 and pragmatic manner.

4. When substantial justice and
technical considerations are pitted against
each other, the cause of substantial justice
deserves to be preferred, for the other side
can not claim to have vested right in
injustice being done because of a nondeliberate 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 grapped that the judiciary
is respected not on account of its power to
legalise injustice on technical grounds but
because it is capable of removing injustice
and is expected to do so."

20. In Smt. Prabha Vs. Ram
Praskash Kalra, 1987 (Suppl.) SCC 338
the Supreme Court took the view that the
Court should not adopt an injustice-
oriented
approach
in
rejecting
the
application for condonation of delay.

21. In the case of N. Balakrishnan
Vs.M.Krishnamurthy,(1998) 7 SCC 133
the Apex Court explained the scope of
limitation
and
condoning
of
delay,
observing as under :-

"The primary function of a Court is to
adjudicate the dispute between the parties
and to advance substantial justice. The
time- limit fixed for approaching the Court
in different situations is not because on the
expiry of such time a bad cause would
transform into a good cause. Rules of
limitation are not meant to destroy the
rights of parties . They are meant to see that
parties do not resort to dilatory tactics, but
seek their remedy for the redress of the
legal injury so suffered. The law of
limitation is thus founded on public policy."

22. In the case of Vedabai alias
Vaijayanatabai
Baburao
Patil
Vs.
Shantaram Baburao Patil and others,
2001 (44) ALR 577 (SC) the Apex Court
made a distinction in delay and inordinate
delay observing as under:-

"In
exercising
discretion
under
section 5 of the Limitation Act, the Courts
6 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
should adopt a pragmatic approach. A
distinction must be made between a case
where the delay is inordinate and a case
where the delay is of a few days. Whereas
in the former case the consideration of
prejudice to the otherwise will be a
relevant factor so the case calls for a
more cautious approach."

23. For the foregoing reasons, the
order dated 04.09.1987 passed by the
court below is set aside. Revision is
allowed. Matter is remanded back to the
court
below
to
decide
afresh
in
accordance
with
law
after
giving
opportunity of hearing to the parties
concerned.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.01.2011

BEFORE
THE HON'BLE SANJAY MISRA, J.

Second Appeal No. - 26 of 2011

Sardar Surjeet Singh

 ...Appellant
Versus
Om Prakash

 ...Respondent

Counsel for the Petitioner:
Sri Divakar Rai Sharma

Counsel for the Respondent:
Sri Pankaj Agrawal

Code of Civil Procedure Section 100readwith Transfer of Property Act,
Section -106(1)-lease of open land-for
four years to run saw mill-the tin shed
erected-subsequently-whether such tin
shed within the meaning of building-?-
held-"No"-so far notice part is concernlease for four years and not year to
year-section 106(1) not attracted-six
month notice held proper only the civil
court has jurisdiction.
Held: Para 11 and 20

It is thus clear that the defendantappellant could erect a tin shed for his
necessity in running the saw mill. There
was no tin shed that was let out by the
plaintiff-respondent. The averments in
paragraph 1 of the plaint do not indicate
a contrary intention and it refers to the
terms and conditions incorporated in the
registered agreement dated 23.03.1979.
The relationship of the parties are
governed by the registered agreement
hence only that agreement can be looked
into to determine as to what was let out.
It was definitely only the land. The tin
shed was raised subsequent to the start
of the lease period and it was made by
the defendant-appellant. The tin shed so
erected
for
running
the
saw
mill,
therefore,
cannot
be
held
to
be
accommodation or a building for the
purposes of U.P. Act No.13 of 1972.

In the present case, admittedly the lease
was given for running a saw mill over the
land with a contemplation that tin shed
could be erected. No part of the building
was given on rent. When the lease was
not month to month but it was for a
period of four years, the notice of six
months was a valid notice. It was a
protected lease. The second part of
section 106(1) of Transfer of Property
Act was clearly not applicable in the
facts and circumstances of the present
case.
Case law discussed
2010(3) ARC 750; AIR 1995 SC 1401; AIR
1995 Supreme Court 2482; JT 1995(3) SC
329;

(Delivered by Hon'ble Sanjay Misra, J.)

1. Heard Sri Diwakar Rai Sharma,
learned counsel for the defendant-appellant
and Sri Pankaj Agarwal, learned counsel
for the plaintiff-respondent.

2. This is a second appeal under
Section 100 of the Code of Civil Procedure