# Rais Ahmad & Ors v. Moharram Ali & Ors

- **Citation:** (2020) 8 ILRA 440
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-06
- **Case number:** Misc. Single No. 7163 of 2020
- **Bench:** Rakesh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rais-ahmad-ors-v-moharram-ali-ors-46052
- **Pages:** 4

## Headnote

A. Civil Law - U.P. Revenue Code,2006 -
Section 210 - maintainability of-revision
barred by limitation by more than three
and
a
half
years-Revisional
Court
condoned the inordinate delay without
recording
its
satisfaction-order
condoning the delay is set aside.(Para 1
to 12)

B. It is a well settled legal proposition that
whenever,
the
court
exercises
its
discretion, the same must be by a
speaking order, indicating the satisfaction
of
the
court
that
the
delay
was
satisfactorily explained and condonation
of the same was in the interest of justice.
Even after sufficient cause has been
shown by a party is not entitled to the
condemnation of delay in question as a
matter of right.(Para 6 to 9)

The petition is allowed. (E-6)
List of Cases Cited:-

## Text

440 INDIAN LAW REPORTS ALLAHABAD SERIES
Appellate Court. There is no dispute that
the land in question is still lying vacant.
The vacant land not actually being used
for residential or industrial purposes
would still be land covered under Section
3(14) of the Act of 1950. This has been
held to be so by this Court as well as the
Supreme
Court.
Therefore,
merely
because the Area Lekhpal and not the
Tehsildar had carried out the spot
inspection, it could not be said that the
ultimate conclusion of land lying vacant
was in anyway perverse and against the
facts on record.

87. This Court, in view of the
observations made hereinabove, finds no
infirmity in the orders impugned in both
the writ petitions. Consequently, both the
writ petitions are dismissed.
----------
(2020)08ILR A440
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.03.2020

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.

Misc. Single No. 7163 of 2020

Rais Ahmad & Ors. ...Petitioner
Versus
Moharram Ali & Ors. ...Respondent

Counsel for the Petitioner:
Yogesh Chandra Srivastava

Counsel for the Respondent:
C.S.C.

A. Civil Law - U.P. Revenue Code,2006 -
Section 210 - maintainability of-revision
barred by limitation by more than three
and
a
half
years-Revisional
Court
condoned the inordinate delay without
recording
its
satisfaction-order
condoning the delay is set aside.(Para 1
to 12)

B. It is a well settled legal proposition that
whenever,
the
court
exercises
its
discretion, the same must be by a
speaking order, indicating the satisfaction
of
the
court
that
the
delay
was
satisfactorily explained and condonation
of the same was in the interest of justice.
Even after sufficient cause has been
shown by a party is not entitled to the
condemnation of delay in question as a
matter of right.(Para 6 to 9)

The petition is allowed. (E-6)
List of Cases Cited:-

1. Ramlal Vs Rewa Coalfields Ltd., AIR (1962)
SC 361

2. P.K. Ramchandran Vs St. Of Kerala,(1997)
7 SCC 556

3. D. Gopinathan Pillai Vs St. Of Kerala,
(2007) 2 SCC 322

(Delivered by Hon'ble Rakesh
Srivastava, J.)

1. Notice on behalf of respondent
nos. 2 and 3 has been accepted by the
office of the learned Chief Standing
Counsel. In view of the nature of
controversy involved and the order
proposed to be passed, no useful purpose
would be served by keeping the petition
pending and as such notice to Moharram
Ali, the private respondent is dispensed
with and the matter is being disposed of
at the admission stage itself.

2. The suit for partition and
separate possession of their shares, filed
by the petitioners herein, which came to
be registered as Suit No. 144/14-15, was
decreed by the Sub Divisional Officer,
Nawabganj Barabanki vide judgment
8 All. Rais Ahmad & Ors. Vs. Moharram Ali & Ors.
441
dated 28.12.2015. The Court held the
petitioners to be the absolute owners of
Gata No. 1487, whereas respondent no. 1
was held to be the absolute owner of
Gata No. 1483 and 1484 and with respect
to the other gatas, the petitioners and
Moharram Ali - respondent no. 1 were
held to be equal share holders.

3. On 12.9.2019, the respondent no.
1, filed a Revision No. 01469/2019 under
Section 210 of the U.P. Revenue Code,
2006 (for short ''the Code') against the
said
decree
before
the
Additional
Commissioner,
Ayodhya
Mandal,
Ayodhya. The revision was barred by
more than three and a half years.

4. Without any notice to the
petitioners, by the impugned order dated
18.09.2019, the delay was condoned and
the revision was admitted. The impugned
order reads as under:

"i=koyh is'k gqbZA fuxjkuhdrkZ ds
fo}ku vf/koDrk dh cgl fuxjkuh dh xzkg~;rk
ds fcUnq ij lquh x;hA ;g fuxjkuh eksgjZe
vyh dh vksj ls miftykf/kdkjh uokcxat]
ckjkcadh }kjk ikfjr vkns'k fnukad 28-12-2015
ds fo#) ;ksftr dh x;h gSA fuxjkuhdrkZ ds
vf/koDrk }kjk fe;kn vf/kfu;e dh /kkjk 5 dk
ykHk izkIr djus gsrq izkFkZuk i= izLrqr fd;k
x;k gSA vr% fe;kn vf/kfu;e dk ykHk iznku
djrs gq;s fuxjkuh lquokbZ gsrq xzkg~; dh tkrh
gSA voj U;k;ky; dh i=koyh ryc dh tk,A
foi{khx.k dks uksfVl tkjh dh tk,A i=koyh
lquokbZ gsrq fnukad 09-01-2020 dks is'k gksA"

(emphasis supplied)

5. Sri Yogesh Chandra Srivastava,
learned counsel for the petitioners, has
contended that without issuing notice to
the petitioners, the delay could not have
been condoned. He has further submitted
that neither there was any application for
condonation of delay nor any sufficient
cause was shown for the inordinate delay
in filing the revision, and in this view of
the matter also, the delay in filing the
revision could not have been condoned.
Even otherwise, the counsel submits, the
order, being a nonspeaking order, cannot
be sustained.

6. Section 210 and 214 of the U.P.
Revenue Code and Section 5 of the
Limitation Act, 1963 read as under:

210. Power to call for the
records.-
(1)
The
Board
or
the
Commissioner may call for the record of
any suit or proceeding decided by any
subordinate revenue Court in which no
appeal lies, or where an appeal lies but
has not been preferred, for the purpose of
satisfying itself or himself as to the
legality or propriety of any order passed
in such suit or proceeding; and if such
subordinate Court appeals to have -

(a) exercised a jurisdiction not
vested in it by law; or

(b)
failed
to
exercise
a
jurisdiction so vested; or

(c) acted in the exercise of such
jurisdiction illegally or with material
irregularity,
the
Board,
or
the
Commissioner, as the case may be, may
pass such order in the case as it or he
thinks fit.

(2) If an application under this
section has been moved by any person
either
to
the
Board
or
to
the
Commissioner, no further application by
the same person shall be entertained by
the other of them.

(3) No application under this
section shall be entertained after the
expiry of a period of third days from the
date of the order sought to be revised or
442 INDIAN LAW REPORTS ALLAHABAD SERIES
from the date of commencement of this
Code, whichever is later.
* * *

214. Applicability of Code of
Civil Procedure, 1908 and Limitation
Act, 1963. - Unless otherwise expressly
provided by or under this Code, the
provisions
of
the
Code
of
Civil
Procedure, 1908 and the Limitation Act,
1963
shall
apply
to
every
suit,
application or proceeding under this
Code.
* * *

5. Extension of prescribed
period in certain cases.--Any appeal or
any application, other than an application
under any of the provisions of Order XXI
of the Code of Civil Procedure, 1908,
may be admitted after the prescribed
period if the appellant or the applicant
satisfies the court that he had sufficient
cause for not preferring the appeal or
making the application within such
period.

Explanation.--The fact that the
appellant or the applicant was misled by
any order, practice or judgment of the
High Court in ascertaining or computing
the prescribed period may be sufficient
cause within the meaning of this section.

7. Under Sub-section (3) of Section
210 of the Code, the limitation for filing
a revision before the Board or the
Commissioner is 30 days from the date
of the order against which the application
is directed. However, Section 214 of the
Code read with Section 5 of the
Limitation Act empowers the Board or
the Commissioner, as the case may be, to
condone the delay in filing the revision
under Section 210 of the Code, provided
that sufficient cause is shown by the
applicant for not availing the remedy
within the prescribed period of limitation.

8. The power to condone the delay
under
section
5
of
the
Act
is
discretionary and even where sufficient
cause is shown by a party it cannot claim
condonation of delay as a matter or right.
In Ramlal v. Rewa Coalfields Ltd., AIR
1962 SC 361, the Apex Court has held as
under:

"12. It is, however, necessary to
emphasise that even after sufficient cause
has been shown a party is not entitled to
the condonation of delay in question as a
matter of right. The proof of a sufficient
cause is a condition precedent for the
exercise of the discretionary jurisdiction
vested in the court by Section 5. If
sufficient cause is not proved nothing
further has to be done; the application for
condoning delay has to be dismissed on
that ground alone. If sufficient cause is
shown then the court has to enquire
whether in its discretion it should
condone the delay." (emphasis supplied)

9. The Revisional Court, thus, had the
discretion to condone the delay and entertain
the revision after the expiry of the period of
limitation, if it was satisfied on the facts and
in the circumstances of the case that the delay
had been properly explained and that it was
necessary to do so in the interest of justice.
The discretion conferred on the court has to
be exercised judicially and on well
recognised principles. It is a well settled legal
position that whenever, the court exercises
this discretion, the same must be by a
speaking order, indicating the satisfaction of
the court that the delay was satisfactorily
explained and condonation of the same was
in the interest of justice.

10. In P.K. Ramachandran v. State
of Kerala, (1997) 7 SCC 556, the Apex
Court
has
held
as
under:
8 All. M/S Godwin Construction Pvt. Ltd. Vs. State of U.P. & Ors.
443

"3. It would be noticed from a
perusal of the impugned order that the
court has not recorded any satisfaction
that the explanation for the delay was
either reasonable or satisfactory, which
is
an
essential
prerequisite
to
condonation of delay."
 (emphasis supplied)

11. In D. Gopinathan Pillai v. State
of Kerala, (2007) 2 SCC 322, the Apex
Court reiterated what was said in
Ramchandran's case. Paragraph 5 of the
said report is reproduced below:

"5.
We
are
unable
to
countenance the finding rendered by the
Sub-Judge and also the view taken by the
High Court. There is no dispute in regard
to the delay of 3320 days in filing the
petition for setting aside the award.
When a mandatory provision is not
complied with and when the delay is not
properly, satisfactorily and convincingly
explained, the court cannot condone the
delay, only on the sympathetic ground.
The orders passed by the learned SubJudge and also by the High Court are far
from satisfactory. No reason whatsoever
has been given to condone the inordinate
delay of 3320 days. It is well-considered
principle of law that the delay cannot be
condoned
without
assigning
any
reasonable, satisfactory, sufficient and
proper reason. Both the courts have
miserably failed to comply and follow
the principle laid down by this Court in a
catena of cases. We, therefore, have no
other option except to set aside the order
passed by the Sub-Judge and as affirmed
by the High Court. We accordingly set
aside both the orders and allow this
appeal."(emphasis supplied)

12. In the case at hand, the revision
filed by the respondent no. 1 was, on the
face of it, barred by limitation by more
than three and a half years. By the
impugned order, the Revisional Court has
condoned the inordinate delay by a
cryptic order without recording its
satisfaction that the delay was either
reasonable
or
satisfactory.
The
Revisional Court has, thus, committed a
serious error in condoning the delay and
admitting the revision. In this view of the
matter
alone,
the
impugned
order
condoning the delay cannot be sustained
and is liable to be set aside.

13. The petition is allowed. The
order condoning the delay is set aside
and the matter is remanded to the
Revisional Court to pass a fresh order in
accordance with law.

14. The petitioners are granted
liberty to file their objections with regard
to the maintainability of the revision
taking all the pleas available to them
including the plea of limitation before the
Revisional Court and the Revisional
Court while passing a fresh order shall
take into consideration the objections, if
any, filed by the petitioners.
----------
(2020)08ILR A443
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.08.2020

BEFORE

THE HON'BLE VED PRAKASH VAISH, J.
THE HON'BLE NARENDRA KUMAR
JOHARI, J.

Misc. Bench No. 7787 of 2008

M/S Godwin Construction Pvt. Ltd.
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents