# Parbhu and another v. D.D.C. and others

- **Citation:** (2012) 3 ILRA 1509
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-10-19
- **Case number:** Civil Misc. Writ Petition No. 54502 of 2012
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/parbhu-and-another-v-d-d-c-and-others-42344
- **Pages:** 4

## Headnote

C.S.C.
Sri A.K. Malviya
Sri Indra Raj Singh
Sri Ravindra Prasad
Sri Y.K.Singh
Sri R.D. Singh

U.P. Consolidation of Holdings Act 1953,
Section 53 (b)-applicability of provisions
of section 5 of limitation Act-if appeal or
revision
filed
beyond
time-general
principle consonance with provision of
Order 41 Rule 3-A-same analogy should
be
followed-order
passed
on
merit
without deciding delay condonationheld-faulty not sustainable.

Held: Para-14

Here
in
this
case,
admittedly,
the
revision
was
filed
along
with
an
application for condonation of delay and
without
condoning
the
delay,
the
revision has been decided, therefore the
Deputy Director of Consolidation has
erred in deciding the revision on merit
without condoning the delay and the
impugned order dated 4.10.2012 passed
by him cannot be sustained, hence, it is
hereby quashed.
Case Law discussed:
2008 14 SCC 445; 2005 Volume 4 SCC 613;
2001 (9) SCC 717

## Text

3 All] Prabhu and another V. D.D.C. and others

1509
is not a correct procedure. A prima facie
case must be made out during a preliminary
enquiry before issuing the transfer order,
which in the instant case has not been done.
The Court also find that the complaint has
been withdrawn.

6. In the light of the aforesaid, the
Court is of the opinion that the transfer
order was passed on a false complaint on
which, no preliminary enquiry was made.
Consequently, the transfer order can not be
sustained and is quashed.

7. The writ petition is allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.10.2012

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 54502 of 2012

Parbhu and another
 ...Petitioners
Versus
D.D.C. and others
 ...Respondents

Counsel for the Petitioner:
Sri Markandey Upadhyay
Sri Rishi Kant Rai
Sri Rakesh Pandey

Counsel for the Respondents:
C.S.C.
Sri A.K. Malviya
Sri Indra Raj Singh
Sri Ravindra Prasad
Sri Y.K.Singh
Sri R.D. Singh

U.P. Consolidation of Holdings Act 1953,
Section 53 (b)-applicability of provisions
of section 5 of limitation Act-if appeal or
revision
filed
beyond
time-general
principle consonance with provision of
Order 41 Rule 3-A-same analogy should
be
followed-order
passed
on
merit
without deciding delay condonationheld-faulty not sustainable.

Held: Para-14

Here
in
this
case,
admittedly,
the
revision
was
filed
along
with
an
application for condonation of delay and
without
condoning
the
delay,
the
revision has been decided, therefore the
Deputy Director of Consolidation has
erred in deciding the revision on merit
without condoning the delay and the
impugned order dated 4.10.2012 passed
by him cannot be sustained, hence, it is
hereby quashed.
Case Law discussed:
2008 14 SCC 445; 2005 Volume 4 SCC 613;
2001 (9) SCC 717

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

1. Supplementary affidavit filed today,
is taken on record.

2. Heard Sri Rakesh Pandey along
with Sri Rishi Kant Rai, learned counsel for
the petitioners, Sri K.R.Sirohi, learned
Senior Counsel assisted by Sri Yogesh
Kumar
Singh,
learned
counsel
for
respondents no. 2 to 5 and Sri R.D.Singh,
learned counsel for respondents no. 6 to 9.

3. Through this writ petition, the
petitioners have prayed for issuing a writ of
certiorari
quashing
the
order
dated
4.10.2012 passed by Deputy Director of
Consolidation, Ghazipur in Revision No.
1210 (Naresh Vs/. Mukhram), Revision No.
1297 (Mukhram Vs. Prabhu) and Revision
No. 1298 (Surendra Vs. Prabhu).

4. Sri Rakesh Pandey along with Sri
Rishi Kant Rai, learned counsel for the
petitioners contends that the Revisions No.
1297 and 1298 were barred by time and
there were also applications for condonation
1510 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

of delay but without issuing notice and
without condoning the delay, revisions have
been entertained and impugned order has
been passed. In the submission of learned
counsel for the petitioners, unless the delay
is condoned, there could be no revision and
the Deputy Director of Consolidation has
erred in allowing the revisions.

5. On a specific query made by the
Court, from the learned counsel for the
respondents, as to whether the submission
of Sri Pandey is correct or incorrect, it has
been stated that it appears, delay has not
been condoned and the revision has been
allowed.

6. The counsel for both the parties
agreed for disposal of the writ petition,
without any further exchange of affidavits,
only on the basis of legal points involved in
this case.

7. For appreciating the controversy
involved in this case, it has to be seen as to
whether, without condoning the delay, the
revision could be allowed. Section 53 (b) of
the U.P. Consolidation of Holdings Act,
1953, (hereinafter referred to as 'the Act')
which was brought in the Statute vide U.P.
Act No. 38 of 1958, provides that the
provision of section 5 of the Limitation Act,
1963 shall apply to the applications,
appeals, revisions and other proceedings
under the Act or the Rules made thereunder.

8. Here in this case, the revisions were
accompanied
with
applications
under
section 5 of the Limitation Act, for
extending the period of limitation in
preferring the revisions. Section 3 of the
Limitation Act provides bar of limitation
subject to provisions contained in sections 4
to 24 (inclusive), every suit instituted,
appeal preferred, and application made after
the prescribed period shall be dismissed,
although limitation has not been set up as a
defence. Meaning thereby, if the limitation
has been provided for approaching the
Court and that period has expired, in that
circumstance, section 5 of the Limitation
Act will to rescue of those who approaches
the Court after expiry of the period of
limitation, by making an application under
Section 5 of the Limitation Act for
extending the period of limitation or to
condone the delay in approaching the Court.
Once an application is filed for condonation
of delay extending the period of limitation,
then general principles has to be followed in
consonance with the provisions contained
under Order 41 Rule 3A of the Code of
Civil Procedure, wherein it is provided that
if the appeal is filed beyond the period of
limitation, then it has to be accompanied
with an application for condonation of delay
and the Court dealing with such matter can
reject the application if the delay is not
satisfactorily explained and in case the
Court finds that there is some substance,
then, in that eventuality, notice has to be
issued to otherside for having his version
for disposal of section 5 application and in
no case, without issuing notice and without
condoning the delay, the appeal can be
decided. Although, in
the Act, the
provisions of Order 41, Rule 3-A of C.P.C.
are not made applicable but I am of the
view that the same analogy should be
adopted here also.

9. Here in this case, admittedly, the
revision was barred by time and it was
accompanied with an application for
condonation of delay, therefore, unless the
delay was condoned, the revisions could not
have been decided on merit as in the eye of
law, unless the delay is condoned, there
could be no revision.
3 All] Prabhu and another V. D.D.C. and others

1511

10. The view taken by me finds
support from the decision of the apex Court
in
Noharlal
Verma
Vs.
District
Cooperative Central Bank Ltd. Jagdalpur
2008 14 SCC 445, where the Apex Court
has held as under :-

" 32. Now, limitation goes to the root
of the matter. If a suit, appeal or application
is barred by limitation a court or an
adjudicating authority has no jurisdiction,
power or authority to entertain such suit,
appeal or application and to decide it on
merits.

33. Sub Section (1) of Section 3 of the
Limitation Act, 1963 reads as under:

" 3. Bar of Limitation.- (1) Subject to
the provisions contained in Sections 4 to 24
(inclusive) every suit instituted, appeal
preferred, and application made after the
prescribed period shall be dismissed
although limitation has not be set up as a
defence."

Bare
reading
of
the
aforesaid
provision leaves no room for doubt that if a
suit is instituted, appeal is preferred or
application is made after the prescribed
period, it has to be dismissed even though
no such plea has been raised or defence has
been set up. In other words, even in the
absence of such plea by the defendant,
respondent or opponent, the court or
authority must dismiss such suit, appeal or
application, if it is satisfied that the suit,
appeal or application is barred by
limitation."

11. In V.M. Salgaocar and Bros. Vs.
Board of Trustees of Port of Mormugao
and another 2005 Volume 4 SCC 613,
following observation has been made by the
Apex Court.

20 " The mandate of Section 3 of the
Limitation Act is that it is the duty of the
court to dismiss any suit instituted after the
prescribed period of limitation irrespective
of the fact that limitation has not been set up
as a defence. If a suit is ex facie barred by
the law of limitation, a court has no choice
but to dismiss the same even if the defendant
intentionally has not raised the plea of
limitation."

12. In the case of Sneh Gupta Vs.
Devi Sarup and others, (2009)6 SCC 194,
in paragraph 70, the Apex Court has held
that in absence of any application for
condonation of delay, the court has no
jurisdiction in terms of S. 3, Limitation Act,
1963 to entertain the application filed for
setting aside of decree after expiry of period
of limitation.

13. In 2001 (9) SCC 717, Ragho
Singh Vs. Mohan Singh, the Apex Court
has held as under:-

(6) " We have heard learned counsel
for the parties. Since it is not disputed that
the appeal filed before the Additional
Collector was beyond time by 10 days and
an application under Section 5 of the
Limitation Act was not filed for condonation
of delay, there was no jurisdiction in the
Additional Collector to allow that appeal.
The appeal was liable to be dismissed on
the ground of limitation. The Board of
Revenue before which the question of
limitation was agitated was of the view that
though an application for condonation of
delay was not filed, the delay shall be
deemed to have been condoned. This is
patently erroneous. In this situation, the
High Court was right in setting aside the
judgment of the Additional Collector as also
of the Board of Revenue. We find no
1512 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

infirmity in the impugned judgment. The
appeal is dismissed. No costs."

14. In view of foregoing discussions,
the controversy can be summarized as
under:-

(i) When the statute provides limitation
for approaching the Court and a person
approaches the Court after the expiry of the
period of limitation, then he has to approach
the Court along with an application under
Section 5 of the Limitation Act praying
extension of period of limitation or to
condone the delay in approaching the Court.

(ii) Once the application under Section
5 of the Limitation Act is filed and unless
the delay is condoned, no order can be
passed on merit .

(iii) The delay cannot be condoned
without having the version of otherside and
for that, otherside is required to be noticed
and heard.

15. Here in this case, admittedly, the
revision was filed along with an application
for condonation of delay and without
condoning the delay, the revision has been
decided, therefore the Deputy Director of
Consolidation has erred in deciding the
revision on merit without condoning the
delay and the impugned order dated
4.10.2012 passed by him cannot be
sustained, hence, it is hereby quashed.

16. The writ petition succeeds and is
allowed.

17.

The
Deputy
Director
of
Consolidation is directed to consider the
applications for condonation of delay first
and in case the delay is condoned, the
revisions itself be decided expeditiously, but
not later than six months from the date of
decision on section 5 applications. In case
the application under section 5 is rejected,
the reason for the same may also be
recorded.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.11.2012

BEFORE
THE HON'BLE SATYA POOT MEHROTRA, J.
THE HON'BLE HET SINGH YADAV, J.

Civil Misc. Writ Petition No. 61462 of 2012

Purushottam Ram

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

Counsel for the Petitioner:
Sri Sunil Kumar Singh
Sri Rajesh Kumar Singh

Counsel for the Respondents:
Sri Vivek Verma
C.S.C.

Constitution
of
India,
Article
226-
revision-against
order-passed
by
Development Authority under Section 27
of Urban Development Act-despite of
pending revision notices to remove
construction-stay application could not
be considered as presiding revision
authority not posted-petition disposed of
with direction to approach before R-2who shall consider and take appropriate
decision-Status Quo-be maintained-till
disposal of revision.

(Delivered by Hon'ble Satya Poot
Mehrotra, J.)

1. The present Writ Petition has
been filed by the petitioner, inter-alia,
praying for directing the respondent no.2
to expeditiously dispose of the Stay
Application filed by the petitioner along