# Om Prakash Mishra v. Union of India and others

- **Citation:** (2011) 2 ILRA 875
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-07-26
- **Case number:** Civil Misc. Writ Petition No. 39628 of 2011
- **Bench:** Vineet Saran, Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-mishra-v-union-of-india-and-others-41988
- **Pages:** 4

## Headnote

Constitution
of
India-Article
226Restoration Application along with delay
condonation
Application
rejected
by
Tribunal-on
pertext
no
ground
for
interference made out-held Court or
Tribunal are known for imparting justice
and not to shut the door of Justice on
technicality-Tribunal
committed
great
error by ignoring the guide line issued by
the
Apex
Court-reason
for
non
appearance disclosed-could not markcause shown sufficient-delay condonedrestoration allowed-direction to decide
the original application on merit.

Held: Para 10

Looking
into
the
object
of
the
establishment of the courts/tribunals
which
are
meant
and
known
for
imparting substantial justice to the
parties,we find that the cause shown for
non
appearance
was
sufficient
to
condone
the
delay
in
filing
the
restoration application as well as to
recall the order dated 10.03.2008 and
the Tribunal in not doing so has failed to
consider
the
very
purpose
of
the
establishment of the court/tribunal and
by passing the impugned order has shut
down
the
door
of
justice
on
technicalities,
therefore,
we
cannot
approve such an order.
Case law discussed:
(JT 1987 (1) SC 537=1987 (2) SCR 387; 1978
ARC 496; JT 2000 (5) 389

## Text

2 All] Om Prakash Mishra V. Union of India and others
875
allowed. The order dated 6.5.2011 passed
by District Judge, Aligarh in Civil Appeal
No.79 of 2011 (Annexure No.5 to the writ
petition) is hereby quashed.

11. This order will not preclude the
respondent nos.1 to 5 from filing an
application for condonation of delay in the
appeal which has been preferred by them
before the District Judge against the
judgment and decree 8.2.2010 and in case
any delay condonation application is filed
the same shall be dealt with by the court
concerned in accordance with law.

12. Copy of this order shall be
supplied to learned counsel for the
petitioner within three days on payment of
usual charges.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.07.2011

BEFORE
THE HON'BLE VINEET SARAN,J.
THE HON'BLE RAN VIJAI SINGH,J.

Civil Misc. Writ Petition No. 39628 of 2011

Om Prakash Mishra

 ...Petitioner
Versus
Union of India Thru G.M.,N.Railway,New
Delhi and others
 ... Respondents

Counsel for the Petitioner:
Sri Santosh Mishra

Counsel for the Resapondents:
Sri Sudhir Bharti (S.C. -N.R.)
C.S.C.

Constitution
of
India-Article
226Restoration Application along with delay
condonation
Application
rejected
by
Tribunal-on
pertext
no
ground
for
interference made out-held Court or
Tribunal are known for imparting justice
and not to shut the door of Justice on
technicality-Tribunal
committed
great
error by ignoring the guide line issued by
the
Apex
Court-reason
for
non
appearance disclosed-could not markcause shown sufficient-delay condonedrestoration allowed-direction to decide
the original application on merit.

Held: Para 10

Looking
into
the
object
of
the
establishment of the courts/tribunals
which
are
meant
and
known
for
imparting substantial justice to the
parties,we find that the cause shown for
non
appearance
was
sufficient
to
condone
the
delay
in
filing
the
restoration application as well as to
recall the order dated 10.03.2008 and
the Tribunal in not doing so has failed to
consider
the
very
purpose
of
the
establishment of the court/tribunal and
by passing the impugned order has shut
down
the
door
of
justice
on
technicalities,
therefore,
we
cannot
approve such an order.
Case law discussed:
(JT 1987 (1) SC 537=1987 (2) SCR 387; 1978
ARC 496; JT 2000 (5) 389

(Delivered by Hon'ble Vineet Saran,J. )

1. Heard counsel for the petitioner as
well as Sri Sudhir Bharti learned counsel
for all the respondents. With the consent
of learned counsel for the parties, this
petition is being finally disposed of at this
stage without calling for counter affidavit.

2. The case of the petitioner is that
O.A.No. 557 of 2004 was pending before
the Central Administrative Tribunal. On
10.03.2008 the said O.A. was dismissed
in default as the counsel for the petitioner
could not appear. The petitioner thereafter
filed an application for recalling of the
said order on 02.03.2011 along with an
application for condonation of delay
876 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
which was supported by an affidavit. In
the said application as well as affidavit, it
has been stated that as the case could not
be marked by the clerk of the counsel for
the petitioner, therefore counsel could not
appear on the date fixed and the case was
dismissed for non prosecution. It is also
stated in the affidavit that when the
petitioner inspected the file on 25.01.2011
this fact came to the notice of the
petitioner and immediately after coming
to know about the same he filed
restoration application along with an
application for condonation of delay.

3. By the impugned order dated
07.04.2011 both the applications, i.e,delay
condonation
application
as
well
as
restoration application have been rejected
by observing that no good ground for
condonation of delay is made out.

4. The law relating to the delay
condonation has been dealt with by the
Apex Court in numerous cases. The Apex
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."

5. In the case of Ramji Dass and
others Vs Mohan Singh 1978 ARC 496
the Apex Court has held that " we are
inclined to the view that, as far as
possible, Courts' discretion should be
exercised in favour of hearing and not to
shut out hearing."

6. Again the Apex Court 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
:
2 All] Om Prakash Mishra V. Union of India and others
877

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".

7. This view has further been
affirmed by the Apex Court in the case of
Gangadeep Pratisthan Private Ltd. and
others Vs. Messrs. Mechano and others
reported in A.I.R. 2005 Supreme Court
Page 1958.

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 known for
imparting justice and not to scuttle the
process of justice on technicalities.

9. Here in this case as we have
already noticed that it is not a case where
no reason for non appearance was given
by the counsel, but it is a case where the
specific ground has been taken in the
delay
condonation
application
that
because of the non marking of the case by
the clerk of the counsel, the counsel could
not appear before the court and the case
was dismissed for want of prosecution. It
is only when the file was inspected the
factum of dismissing of the same has
came
into
the
notice
of
the
applicant/petitioner and consequently he
filed the restoration application.

10. Looking into the object of the
establishment
of
the
courts/tribunals
which are meant and known for imparting
substantial justice to the parties,we find
that the cause shown for non appearance
was sufficient to condone the delay in
filing the restoration application as well as
to recall the order dated 10.03.2008 and
the Tribunal in not doing so has failed to
consider
the
very
purpose
of
the
establishment of the court/tribunal and by
passing the impugned order has shut
down the door of justice on technicalities,
therefore, we cannot approve such an
order.

11. In view of the observation made
herein above and law laid down by the
Apex Court in delay condonation matter,
we allow the writ petition and quash the
impugned orders dated 07.04.2011 and
10.03.2008 and condone the delay in
filing the restoration application and
restore the original application on its
original number with the direction to the
878 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Tribunal to hear the case on merit and
decided the same in accordance with law.

12. There shall be no order as to
cost.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.07.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Civil Misc. Writ Petition No. 41342 of 2011

Smt. Kalawati

 ...Petitioner
Versus
State of U.P. and others ...Respondent

Counsel for the Petitioner:
Sri Vishwa Pratap Singh

Counsel for the Respondents:
C.S.C.

Constitution
of
India
Article
226cancellation of Fair Price Shop licenceappeal admitte4d but 'Stay Rejected'-
petition filed on apprehension-if not
interim protection given-third party right
shall
be
created-held
misconceivedpublic distribution system shall not
suffer-subsequent allottee has no right
to
continue
on
revocation
of
cancellation-petition dismissed.

Held: Para 5

Thus third party, who is allotted the
distribution, do not have any individual
right but its rights are subject to the
decision in appeal and therefore a fair
price dealer, whose matter is pending in
appeal, does not suffer in any manner.
Case law discussed:
Civil Misc. Writ Petition No. 10539 of 2007
(Smt. Vimla Devi and another Vs. State of U.P.
and others); Kanoria Chemicals & Industries
Ltd. Vs. U.P State Electricity Board, AIR 1994
Allahabad 273 (para 10)

(Delivered by Hon'ble Sudhir Agarwal,J.)

1. The petitioner's fair price
agreement having been cancelled by order
dated 24th June, 2011, the petitioner
preferred an appeal which has been
admitted by the Deputy Commissioner
vide order dated 5th July, 2011 but he has
declined to grant any interim order. Hence
this writ petition.

2. In my view, it is wholly
misconceived and not entertainable writ
petition. Mere admission of an appeal,
which is provided in the statute, does not
entitle a person to get an interim order as
a matter of routine. Learned counsel for
the petitioner could not point out any
error apparent on the face of record in the
impugned order warranting interference.

3. Learned counsel for the petitioner
relied on certain decisions of this Court
requesting that till his appeal is decided,
no third party right will be created.

4. The public distribution system is
not meant for providing source of
livelihood to a dealer and those who
execute agreement but they are only part
of the system to achieve the real objective
of the same i.e. providing subsidized
essential commodities to poor. Where the
agreement of a particular dealer has been
cancelled and the matter is pending in
appeal, distribution has to be maintained
and therefore so long as the matter of
cancellation of agreement of a dealer is
pending for consideration in appeal before
the authority concerned, they are to
continue
with
the
system
so
that
distribution may not hamper. Thus for this
reason and to maintain public distribution
system, as an interim measure somebody
has to be appointed. This Court in Civil