# Pramod Kumar Singh v. State of U.P. and others

- **Citation:** (2012) 2 ILRA 905
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-07-09
- **Case number:** Civil Misc. Writ Petition No. 35569 of 2012
- **Bench:** Amreshwar Pratap Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pramod-kumar-singh-v-state-of-u-p-and-others-42205
- **Pages:** 2

## Headnote

U.P. Imposition on Land Holding Act,
1960-Section-38-procedure for deciding
appeal-applicability of the provisions of
order 41 Rule 3-A (1) (2) and (3)-and
Section 42 of ceiling appeal-delay of
more than 15 years-without application
for
condonation
of
delay-without
explanation-held-provisions of order 41
Rule
3-A
(1)
(2)
and
(3)
being
mandatory
and
not
directoryconsequence of the provision of Section
3 of limitation would be dismissal of
appeal-order passed on merit without
considering the provisions contained
above-appeal liable to be dismissed.

Held: Para 13 and 14

From the bare reading of the aforesaid
judgments it transpires that if a revision
or appeal is filed beyond the period of
limitation as prescribed under the law
then that has to be accompanied with an
application under Section 5 of Limitation
Act
supported
with
an
affidavit
disclosing
the
reason
for
not
approaching the court well within the
time, and in absence of such application
or in absence of any notice to the other
side, the court can only dismiss the
appeal/revision as barred by time and in
no case it can condone the delay or
admit/allow the Appeal/Revision.

In view of the submissions made by the
learned counsel for the petitioners,
admittedly, the appeals were highly
barred by time and the appellate court,
without
condoning
the
delay
has
admitted the appeals. Therefore, in view
of the provisions contained under section
3 of the Limitation Act and sub-rules (1)
and (2) of Rule 3A of Order 41 of CPC,
the appeals ought to have been rejected
as barred by time and, in fact, there was
no
appeal
unless
the
delay
was
condoned, as has been held by the apex
Court.
Case law discussed:
2006(1) SCC 164; JT 2005 (9) SC 503; 2009
(5) SCC 121(paras 11 and 12); 2008 14 SCC
445 (in paragraph 32 and 33of the aforesaid
judgment); 2005 4 SCC 613 (in paragraph 20
of the judgment); (2009) 6 SCC 194; 2001 (9)
SCC 717

## Text

2 All] Pramod Kumar Singh V. State of U.P. and others
905

13. In this case since the sole
petitioner has died and both the applicants
namely Sri Om Prakash and Smt. Abha
Sharma have filed substitution application
to prosecute the petition, therefore, both
substitution applications are allowed. Let
Sri Om Prakash and Smt. Abha Sharma
be substituted in place of sole petitioner in
the array of parties by the office within
three weeks.

14. List this case in second week of
July, 2012.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.07.2012

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.

Civil Misc. Writ Petition no. 32391 of 2012

Pramod Kumar Singh

 ...Petitioner
Versus
State of U.P. Thru Secy. and others

 ...Respondents

Counsel for the Petitioner:
Sri Raj Narayan

Counsel for the Respondents:
C.S.C.

Constitution of India, Article 226-Writ
Petition-by brother of petitioner (a minor
girl)-without disclosing fact as to how
became
guardian-petition-held-not
maintainable.

Held: Para 3

In the opinion of the Court the petitioner
cannot represent his sister so long as he
is not the guardian of his sister under the
relevant law for the time being in force
and even otherwise a minor can be
appropriately
represented
in
a
writ
petition on the principles as enshrined
under Order 32 of the Code of Civil
Procedure. In my opinion the petition
suffers from the defect aforesaid and is
accordingly dismissed without prejudice
to rights of the minor to represent her
cause in accordance with law through
her lawful guardian.

(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)

1. This petition has been filed by the
brother of one Kumari Richa Singh who
is admittedly a minor. The relief claimed
in this petition is that the result of Km.
Richa has not been properly prepared as
the marks awarded to her in the
examination in question is not on proper
evaluation.

2. Unfortunately this petition has
been filed by the brother of the candidate
without disclosing as to how he is the
guardian of the concerned student. The
Vakalatnama has been filed by Pramod
Kumar Singh who is the brother of the
candidate.

3. In the opinion of the Court the
petitioner cannot represent his sister so
long as he is not the guardian of his sister
under the relevant law for the time being
in force and even otherwise a minor can
be appropriately represented in a writ
petition on the principles as enshrined
under Order 32 of the Code of Civil
Procedure. In my opinion the petition
suffers from the defect aforesaid and is
accordingly dismissed without prejudice
to rights of the minor to represent her
cause in accordance with law through her
lawful guardian.

4. The writ petition is dismissed.
---------
906 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.07.2012

BEFORE
THE HON'BLE RAN VIJAI SINGH,J.

Civil Misc. Writ Petition No. 35569 of 2012

Shambhu Sharan Chaubey and others

 ...Petitioners
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioners:
Sri R.C. Singh

Counsel for the Respondents:
C.S.C.

U.P. Imposition on Land Holding Act,
1960-Section-38-procedure for deciding
appeal-applicability of the provisions of
order 41 Rule 3-A (1) (2) and (3)-and
Section 42 of ceiling appeal-delay of
more than 15 years-without application
for
condonation
of
delay-without
explanation-held-provisions of order 41
Rule
3-A
(1)
(2)
and
(3)
being
mandatory
and
not
directoryconsequence of the provision of Section
3 of limitation would be dismissal of
appeal-order passed on merit without
considering the provisions contained
above-appeal liable to be dismissed.

Held: Para 13 and 14

From the bare reading of the aforesaid
judgments it transpires that if a revision
or appeal is filed beyond the period of
limitation as prescribed under the law
then that has to be accompanied with an
application under Section 5 of Limitation
Act
supported
with
an
affidavit
disclosing
the
reason
for
not
approaching the court well within the
time, and in absence of such application
or in absence of any notice to the other
side, the court can only dismiss the
appeal/revision as barred by time and in
no case it can condone the delay or
admit/allow the Appeal/Revision.

In view of the submissions made by the
learned counsel for the petitioners,
admittedly, the appeals were highly
barred by time and the appellate court,
without
condoning
the
delay
has
admitted the appeals. Therefore, in view
of the provisions contained under section
3 of the Limitation Act and sub-rules (1)
and (2) of Rule 3A of Order 41 of CPC,
the appeals ought to have been rejected
as barred by time and, in fact, there was
no
appeal
unless
the
delay
was
condoned, as has been held by the apex
Court.
Case law discussed:
2006(1) SCC 164; JT 2005 (9) SC 503; 2009
(5) SCC 121(paras 11 and 12); 2008 14 SCC
445 (in paragraph 32 and 33of the aforesaid
judgment); 2005 4 SCC 613 (in paragraph 20
of the judgment); (2009) 6 SCC 194; 2001 (9)
SCC 717

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

1. Heard Sri R.C. Singh, learned
counsel for the petitioners and Sri Sanjay
Goswami,
learned
Additional
Chief
Standing Counsel for the respondents.

2. Through this writ petition, the
petitioners have prayed for issuing writ of
certiorari quashing the impugned orders
dated 3.4.2012, passed by respondent no. 2
in appeals nos. 406K of 2012, 407K of
2012 and 408K of 2012 (annexure nos. 9,
11 and 13 to the writ petition), by which
highly time barred appeals have been
admitted, without condoning the delay.

3. Sri Singh contends that in view of
the provisions contained under section 38
of the U.P. Imposition of Ceiling on Land
Holdings Act, 1960 (hereinafter referred to
as, 'the Act'), for deciding the appeal, the
procedure contained in the Code of Civil