# Kanhaiya Lal v. State of U.P. & Ors

- **Citation:** (2021) 9 ILRA 1319
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-03
- **Case number:** Writ C No. 6180 of 2021
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kanhaiya-lal-v-state-of-u-p-ors-47386
- **Pages:** 5

## Headnote

Civil Law - Uttar Pradesh Revenue Code,
2006 - Appeal u/s 67 (5) - Limitation
Act, S.5 - Condonation of delay - Delay
in filing appeal -Held- in matters before
revenue courts, litigants are mostly poor
uneducated agriculturists, rarely alerted
to their rights & technicalities of law,
therefore courts and authorities should
adopt a liberal, pragmatic and a justice
oriented
approach
in
matters
of
condonation of delay & a pedantic view
should be avoided - unless want of bona
fides of such inaction or negligence is
proved, delay cannot be refused to be
condoned - courts have to be mindful of
the consequences of refusal to condone
the delay leading to miscarriage of
justice - it should be the constant
endeavour of the courts and authorities
to adjudicate issues on merits and
dispense
justice
on
a
substantive
basis(Para 10, 14, 15, 19 )

Delay condonation application dismissed in a
cryptic manner with a simplicitor finding that
delay was not explained on a day to day basis -
Held - Delay occasioned as petitioner was not
informed about the order passed by the court
by his counsel - petitioner otherwise also have
knowledge of the same - Conduct of petitioner
was bonafide as after getting knowledge of
award, appeal was filed with promptitude -
delay liable to be condoned - substantive rights
of the petitioner engaged in the controversy
which need adjudication on merits in the
interest of justice (Para 22)

Allowed. (E-5)

List of Cases cited :

## Text

9 All Kanhaiya Lal Vs. State of U.P. & Ors.
1319
to interfere with the judgment of the High
Court. However, we order the excess
payment made be recovered from the
appellant's salary in twelve equal monthly
installments."

25. Under the facts and circumstances
of the present case, the recovery under the
impugned order/Recovery Notice is neither
iniquitous nor arbitrary. The petitioner has
received
public
money
by
obtaining
appointment on the basis of a forged TET
marksheet. Therefore, retention of the
public money received by the petitioner as
salary is against the fundamental principles
of justice, equity and good conscience. It is
an unjust retention of public money by the
petitioner
which
amounts
to
unjust
enrichment.
Therefore,
the
impugned
recovery notice can not be interfered under
Article 226 of the Constitution of India.

26. Thus, for all the reasons
aforestated, we do not find any good reason
to invoke on the facts of the present case,
the
extraordinary,
discretionary
and
equitable jurisdiction under Article 226 of
the Constitution of India.

27. For all the reasons aforestated, the
writ petition is dismissed. However, there
shall be no order as to costs.
----------
(2021)09ILR A1319
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.08.2021

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ C No. 6180 of 2021

Kanhaiya Lal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
Counsel for the Petitioner:
Sri Vinod Kumar, Sri Kapil Kumar Soni

Counsel for the Respondents:
C.S.C., Sri Deepak Gaur

Civil Law - Uttar Pradesh Revenue Code,
2006 - Appeal u/s 67 (5) - Limitation
Act, S.5 - Condonation of delay - Delay
in filing appeal -Held- in matters before
revenue courts, litigants are mostly poor
uneducated agriculturists, rarely alerted
to their rights & technicalities of law,
therefore courts and authorities should
adopt a liberal, pragmatic and a justice
oriented
approach
in
matters
of
condonation of delay & a pedantic view
should be avoided - unless want of bona
fides of such inaction or negligence is
proved, delay cannot be refused to be
condoned - courts have to be mindful of
the consequences of refusal to condone
the delay leading to miscarriage of
justice - it should be the constant
endeavour of the courts and authorities
to adjudicate issues on merits and
dispense
justice
on
a
substantive
basis(Para 10, 14, 15, 19 )

Delay condonation application dismissed in a
cryptic manner with a simplicitor finding that
delay was not explained on a day to day basis -
Held - Delay occasioned as petitioner was not
informed about the order passed by the court
by his counsel - petitioner otherwise also have
knowledge of the same - Conduct of petitioner
was bonafide as after getting knowledge of
award, appeal was filed with promptitude -
delay liable to be condoned - substantive rights
of the petitioner engaged in the controversy
which need adjudication on merits in the
interest of justice (Para 22)

Allowed. (E-5)

List of Cases cited :

1. Collector, Land Acquisition Vs Mst. Kati Ji &
ors. 1987(13) ALR 306 (SC)

2. N. Balakrishnan Vs M. Krishnamurthy 1998(7)
SCC 123
1320 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Shakuntala Devi Jain Vs Kuntal Kumari AIR
1969 SC 575

4. New India Insurance Co. Ltd. Vs Smt. Shanti
Misra AIR 1976 SC 237

5. O.P. Kathpalia Vs Lakhmir Singh AIR 1984 SC
1744

6. Smt. Prabha Vs Ram Prakash Kalra 1987
(Suppl.) SCC 338

7. Vedabai @ Vaijayanatabai Baburao Patil Vs
Shantaram Baburao Patil & ors. 2001 (44) ALR
577 (SC)

(Delivered by Hon'ble Ajay Bhanot, J.)

1. By the impugned order dated
27.01.2021,
the
learned
appellate
court/Additional
District
Magistrate
(Judicial),
Jhansi
has
rejected
the
application
under
Section
5
of
the
Limitation Act filed along with the memo
of appeal and has accordingly found that
the appeal was not maintainable. The
appeal was filed under Section 67 (5) of the
Uttar Pradesh Revenue Code, 2006.

2. Sri Vinod Kumar, learned counsel
for the petitioner contends that the appeal
of the petitioner has been rejected on
grounds of delay. It is submitted that the
delay was due to bonafide reasons. The
learned appellate authority took a highly
technical view of the matter. It is further
contended that the impugned order dated
27.01.2021 shows non application of mind.

3. Per contra, learned Standing Counsel
for the State - respondents submits that the
delay in filing the appeal was not liable to be
condoned and the learned appellate authority
rightly rejected the appeal.

4. Heard learned counsel for the
parties.
5. The facts relevant from the
adjudication of the controversy can be
prised out from the impugned order.

6. The complete record is thus before
this Court and no useful purpose will be
served by exchange of pleadings and
keeping this writ petition pending.

7. With consent of learned counsels
for the parties, this writ petition is being
decided finally.

8. The petitioner has meticulously
explained the cause of delay in the delay
condonation application. It has also been
asserted that substantive rights of the
petitioner are engaged in this controversy.
The aforesaid facts have not been adverted
to in the impugned order passed by the
learned appellate court.

9. The Courts have consistently set
their face against a pedantic approach in
matters pertaining to condonation of delay,
and insist on a justice oriented approach.

10. It would be apposite to predicate
the narrative with good authority in point.
The purpose of laws of limitation is to
ensure that the parties remain vigilant to
their causes and institute their claims in
good time. The mandate of laws of
limitation is not to shut the doors of justice
to the parties or decline adjudication on
merits. On the contrary it should be the
constant endeavour of the courts and
authorities to adjudicate issues on merits
and dispense justice on a substantive basis.

11. There is good authority to hold
that the courts and authorities should adopt
a liberal, pragmatic and a justice oriented
approach matters of condonation of delay.
Equally a pedantic view should be avoided
9 All Kanhaiya Lal Vs. State of U.P. & Ors.
1321
and servitude to procedure in such matters
should be eschewed.

12. In Collector, Land Acquisition V.
Mst. Kati Ji and others1, the Supreme
Court took a liberal view of the phrase
"sufficient cause" and held as follows:

"The legislature has conferred
the power to condone delay by enacting
section 5 of the Limitation Act of 1963 in
order to enable the Courts to do
substantial justice to parties by disposing
of matters on "merits". The expression
"sufficient
cause"
employed
by
the
Legislature is adequately elastic to
enable the Courts to apply the law in a
meaningful manner which subserves 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 restoring 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."

13. This view was fortified in N.
Balakrishnan Vs M. Krishnamurthy2:-

"The primary function of a court
is to adjudicate the dispute between the
parties and to advance substantial justice.
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 right
of parties. They are meant to see that
parties do not resort to dilatory tactics, but
seek their remedy promptly. The object of
providing a legal remedy is to repair the
damage caused by reason of legal injury.
Law of limitation fixes a life-span for such
legal remedy for the redress of the legal
injury so suffered. Time is precious and the
wasted time would never revisit. During
1322 INDIAN LAW REPORTS ALLAHABAD SERIES
efflux of time newer causes would sprout
up necessitating newer persons to seek
legal remedy by approaching the courts. So
a life span must be fixed for each remedy.
Unending period for launching the remedy
may lead to unending uncertainty and
consequential anarchy. Law of limitation is
thus founded on public policy."

14. Conduct and vigilance shown by a
party are relevant criteria for consideration
in an application seeking condonation of
delay. In Shakuntala Devi Jain V. Kuntal
Kumari3, it was held that unless want of
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 or any delay cannot be
refused to be condoned.

15. The expression "sufficient cause"
was liberally construed in New India
Insurance Co. Ltd. V. Smt. Shanti Misra4,
by holding that discretion given by section
5 should not be defined so as to convert a
discretionary matter into a rigid rule of law.

16. The courts have to be mindful of
the consequences of refusal to condone the
delay leading to miscarriage of justice as
held in O.P. Kathpalia V. Lakhmir
Singh5.

17. The law set its face against an
injustice-oriented approach while considering
the applications for condonation of delay in

18. A distinction between delay and
inordinate delay was made in Vedabai @
Vaijayanatabai
Baburao
Patil
V.
Shantaram Baburao Patil and others7:

"In exercising discretion under
section 5 of the Limitation Act, the Courts
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...."

19. These holdings are particularly
applicable in matters before revenue courts,
where
the
litigants
are
mostly
poor
agriculturists, often uneducated and rarely
alerted to their rights and technicalities of
law.

20. The authorities in the preceding
paragraphs are applicable to the facts of this
case and shall also govern the fate of the
decision.

21. The learned appellate court while
passing the impugned order did not advert to
the grounds for delay as pleaded in the delay
condonation application. The appeal was
dismissed in a cryptic manner with a
simplicitor finding that the delay was not
explained on a day to day basis.

22. The petitioner had stated the cause
for the delay in the delay condonation
application. The delay was occasioned due
to the fact that the petitioner was not
informed about the order passed by the
learned trial court by his counsel nor did he
otherwise have knowledge of the same. The
delay was not intentional as after getting
knowledge of the award, the appeal was
filed with promptitude. The petitioner has
shown good and sufficient cause for
condonation of delay. The conduct of the
petitioner was bonafide. The delay was
liable to be condoned.

23. The impugned order shows non
application of mind to the facts of the case
9 All Pachchu Vs. State of U.P. & Ors.
1323
in the record. The cases in point discussed
in the preceding paragraphs are applicable
to the facts of the case. The learned
appellate court while rejecting the delay
condonation application has acted contrary
to the aforesaid settled authorities of law.

24. The learned appellate authority
overlooked the fact that substantive rights
of the petitioner are engaged in this
controversy which need adjudication on
merits in the interest of justice.

25. I find that the court below has
taken a pedantic view of the matter which
has led to a miscarriage of justice.

26. The order dated 27.01.2021
passed by the respondent No.2 as well as
the order dated 25.10.2018 passed by the
respondent No.3 are arbitrary and illegal.

27. The order dated 27.01.2021
passed by the respondent No.2-Additional
District Magistrate (Judicial), Jhansi as
well as the order dated 25.10.2018 passed
by the respondent No.3/Assistant Collector,
First Class/Tehsildar-Moth, District-Jhansi
are liable to be set aside and are set aside.

28. The delay condonation application
is liable to be allowed and is allowed.

29. The matter is remitted to
respondent No.2 / appellate authority.

30. A writ in the nature of mandamus
commanding
the
respondent
No.2
/
appellate authority to execute the following
directions:

I.
The
respondent
No.2-
/
appellate authority shall decide the appeal
on merits preferably in accordance with
law within a period of four months from
the date of production of a computer
generated copy of this order, downloaded
from the official website of the High Court
Allahabad. The 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.

31. This order is being passed when
the threat of Covid-19 pandemic still exists.
In case the court proceedings are held up
due to Covid-19 outbreak, the lost working
days shall be adjusted and the stipulated
period of one year shall accordingly be
enhanced.

32. The writ petition is allowed to the
extent indicated above.
----------
(2021)09ILR A1323
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.09.2021

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ C No. 9218 of 2016

Pachchu ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ajay Kumar Srivastava, Sri Sanjay Kr.
Srivastava

Counsel for the Respondents:
C.S.C., Sri Brij Kumar Yadav, Sri Saurabh
Srivastava, Sri Sharad Chand Rai

Civil Law - U.P. Z.A.&L.R. Act,1950 -
Sections 176 & 202 - Ejectment of asami -
Illegal encroachment over pond (Talab) -
disputed parcel of land a pond area -