# Ram Pal Misra v. State of U.P. & Anr

- **Citation:** (2022) 6 ILRA 316
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-12
- **Case number:** Writ-C No. 3000166 of 2003
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-pal-misra-v-state-of-u-p-anr-48662
- **Pages:** 6

## Headnote

A. Ceiling Law - Indian Limitation Act,
1963 - Section 5 - Declaration of the
petitioner's land as surplus land u/s 10(2)
of UP Imposition of Ceiling on Land
Holdings Act, 1960 - State filed the appeal
after 26 years - Appeal admitted on first
date of hearing and notice issued - No
notice was issued on delay condonation
application - Effect - Held, an inordinate
delay could not be condoned without
notice to the respondents and without
recording any reasons for condonation of
delay. So far as the issue of reaching to
the substantial justice is concerned, the
same is undoubtedly a goal/intent of
legislature but, condoning the inordinate
delay, without issuance of notice or calling
objection from other side, shall frustrate
the very object of the aforesaid doctrine.
(Para 18)
B. Indian Limitation Act, 1963 - Section 5
- Delay condonation - Sufficient cause -
Held, the sufficient cause is to be
considered in a proper object, philosophy
and
spirit.
While
dealing
with
such
situation, the court has always found out
paramount consideration of substantial
justice. Liberal approach, while dealing
with such applications, are required but it
is also the duty of the court to see that the
same
may
not
be
unbriddled
and
unguided. (Para 17)
Writ petition allowed (E-1)
List of Cases cited :-

## Text

316 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2022)06ILR A316
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.05.2022

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Writ-C No. 3000166 of 2003

Ram Pal Misra ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Q.M. Haque

Counsel for the Respondents:
C.S.C., Anoop Srivastava

A. Ceiling Law - Indian Limitation Act,
1963 - Section 5 - Declaration of the
petitioner's land as surplus land u/s 10(2)
of UP Imposition of Ceiling on Land
Holdings Act, 1960 - State filed the appeal
after 26 years - Appeal admitted on first
date of hearing and notice issued - No
notice was issued on delay condonation
application - Effect - Held, an inordinate
delay could not be condoned without
notice to the respondents and without
recording any reasons for condonation of
delay. So far as the issue of reaching to
the substantial justice is concerned, the
same is undoubtedly a goal/intent of
legislature but, condoning the inordinate
delay, without issuance of notice or calling
objection from other side, shall frustrate
the very object of the aforesaid doctrine.
(Para 18)
B. Indian Limitation Act, 1963 - Section 5
- Delay condonation - Sufficient cause -
Held, the sufficient cause is to be
considered in a proper object, philosophy
and
spirit.
While
dealing
with
such
situation, the court has always found out
paramount consideration of substantial
justice. Liberal approach, while dealing
with such applications, are required but it
is also the duty of the court to see that the
same
may
not
be
unbriddled
and
unguided. (Para 17)
Writ petition allowed (E-1)
List of Cases cited :-
1. Ragho Singh Vs Mohan Singh & ors. (2001) 9
SCC 717
2. Noharlal Verma Vs District Cooperative
Central Bank Ltd. Jagdalpur; 2008 14 SCC 445
3. V. M. Salgaocar & bros. Vs Board of Trustees
of Port of Mormugao & anr.; (2005) 4 SCC 613
4. St. of Mah. Vs Sharadchandra Vinayak
Dongre & ors. (1995) 1 SCC 42
(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Sri Q. M. Haque, learned
counsel for the petitioner, Sri J.P. Maurya,
learned Additional Chief Standing Counsel
and perused the record.

2. Instant writ petition has been filed
assailing the order dated 21.2.2003 passed
by the appellate authority as well as the
order dated 17.2.1975 passed by the
Prescribed Authority.

3. Learned counsel for the petitioner
submits that in fact a proceeding under
Section 10(2) of U.P. Imposition of Ceiling
on
Land
Holdings
Act,
1960
was
commenced and the case was instituted as
Ceiling
Case
No.
83
wherein
misinterpreting the records, the Prescribed
Authority (Ceiling), vide order dated
17.2.1975 determined 54.4 acres of land as
surplus land from the holdings of the
petitioner. He admits that against the
aforesaid order, the petitioner filed Appeal
No. 244 of 1975 before the District Judge,
Gonda wherein operation of the order
impugned was stayed during the pendency
of the appeal.
6 All. Ram Pal Misra Vs. State of U.P. & Anr.
317

4. He further submitted that, due to
the change of jurisdiction as per the
amendment in the Ceiling Act, the matter
was transferred from the court of District
Judge to the Divisional Commissioner,
Faizabad.
The
aforesaid
appeal
was
dismissed in default on 28.12.1988. He
further added that a fresh proceeding, after
the amendment of Ceiling Act, was
initiated and fresh notices were issued
showing 49.08 acres of land as surplus land
from the holdings of the petitioner. The
petitioner filed objection to the aforesaid
notice. After hearing the parties, the
Prescribed Authority declared 5.12 acres of
land as surplus from the holdings of the
petitioner. He submits that the order dated
29.7.1976 had become final as the State did
not file any appeal against the same.

5. He argued that later on, the State
filed an appeal on 20.9.2002 after delay of
26 years and assailed the order dated
29.7.1976.
Learned
counsel
for
the
petitioner has drawn attention towards
Annexure No. 7, which is the order of
appellate authority dated 21.2.2003 by
which the appellate authority admitted the
appeal; condoned the delay; and issued
notices to the petitioner. He submits that it
is evident from the order itself that no
notice was issued on the application for
condonation of delay and, on the first date
of hearing, i.e., at the admission stage,
delay was condoned by the appellate
authority without affording opportunity of
hearing to the petitioner.

6. He also submits that in fact delay
of 26 years has been condoned without
calling any objection and without affording
opportunity of hearing to the petitioner,
which is impermissible under settled
proposition of law. In support of his
contention,
learned
counsel
for
the
petitioner has placed reliance on the order
of the Apex Court rendered in the case of
Ragho Singh Vs. Mohan Singh and
others, (2001) 9 SCC 717 wherein the
Apex Court has held that appeal filed
before the Additional Collector was beyond
ten days and the application under Section
5 of the Limitation Act was not filed and, in
that view of the matter, the Apex Court has
held that such appeal is liable to be
dismissed. Para 6 of that Judgment reads 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 infirmity in the impugned
judgment. The appeal is dismissed. No
costs."

7. Learned counsel for the petitioner
further placed reliance on judgment of the
Apex Court rendered in the case of
Noharlal Verma Vs. District Cooperative
Central Bank Ltd. Jagdalpur, 2008 14 SCC
445 wherein it has been held in paras 32
and 33 that issue of limitation goes to the
root of the matter and if any appeal or
application is delayed or barred by
318 INDIAN LAW REPORTS ALLAHABAD SERIES
limitation, the Court has no jurisdiction,
power or authority to entertain such suit,
appeal or application for deciding the same
on merits and, in such cases, the suit,
appeal or application is liable to be
dismissed. Paras 32 and 33 of that
Judgment read 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."

8. Learned counsel for the petitioner
further placed reliance on the Judgment of
Apex Court rendered in the case of V.M.
Salgaocar and bros. Vs. Board of
Trustees of Port of Mormugao and
another, 2005, 4 SCC 613 wherein in para
20, following has been held:-

"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."

9. Learned counsel for the petitioner
further placed reliance on para 5 of the
Judgment of the Apex Court rendered in the
case of State of Maharashtra Vs.
Sharadchandra Vinayak Dongre and
others, (1995) 1 SCC 42. Para 5 of the said
Judgment reads as under:-

"5. In our view, the High Court was
perfectly justified in holding that the delay, if
any, for launching the prosecution, could not
have been condoned without notice to the
respondents and behind their back and
without
recording
any
reasons
for
condonation of the delay. However, having
come to that conclusion, it would have been
appropriate for the High Court, without
going into the merits of the case to have
remitted the case to the trial court, with a
direction to decide the application for
condonation of delay afresh after hearing
both sides. The High Court however, did not
adopt that course and proceeded further to
hold that the trial court could not have taken
cognizance of the offence in view of the
application filed by the prosecution seeking
permission
of
the
Court
to
file
a
"supplementary charge-sheet" on the basis of
an "incomplete charge-sheet" and quashed
the order of the CJM dated 21.11.1986 on
this ground also. This view of the High Court,
in the facts and circumstances of the case is
patently erroneous."
6 All. Ram Pal Misra Vs. State of U.P. & Anr.
319

Placing reliance on the aforesaid
Judgment, he submits that the Apex Court
has emphasized that on delay condonation
application, notice to the respondent is
must and condonation of delay without
issuing of notice and recording reasons is
impermissible.

10.

Referring
the
aforesaid
Judgments,
learned
counsel
for
the
petitioner submitted that it is well settled
proposition of law that if the revision or
appeal is being filed beyond the period of
limitation as prescribed under law then that
must have to be accompanied with the
application
under
Section
5
of
the
Limitation Act. He submits that in the
instant matter, the delay was of about more
than 26 years but the appellate authority,
without providing opportunity of hearing,
had admitted the appeal on the first date of
hearing and no opportunity was provided
for submitting objection to the aforesaid
application.
Placing
the
abovesaid
Judgments, he has also added that from the
order of the appellate authority, it is evident
that same has been passed against the
purport and ratio of the Judgments of the
Apex Court. He further added that the
appellate authority has overlooked the issue
of limitation and did not take care of
mandate of Section 3 of the Limitation Act.
From the admission of the appeal, it is
evident
that
the
delay
condonation
application was admitted without calling
any
objection
from
the
petitioner/respondents.

11. Learned counsel for the petitioner
has also argued that 5.12 acres of land was
declared
surplus
by
the
Prescribed
Authority. He submits that appellate
authority without recording any finding has
passed the impugned order which does not
speak a single word about the same. The
orders passed by the appellate authority and
Prescribed Authority assail illegality and
perversity and, as such, the same are liable
to be set aside.

12. He also added to his contention
that the appellate authority has also
recorded a finding that the order of the
Prescribed Authority by virtue of which
5.12 acres of land was declared surplus
without
jurisdiction.
The
appellate
authority could not substantiate the finding
that how the Prescribed Authority has
exercised his jurisdiction which was not
entrusted upon him.

13. On the other hand, learned
counsel for the State vehemently opposed
the aforesaid contention and submitted that
in fact order dated 21.2.2003 itself is
indicative of the fact that the appellant
counsel was directed to provide a copy of
the memo of appeal and the application for
condonation of delay to the counsel for the
respondents. He submits that in fact
adopting the aforesaid method, opportunity
of hearing was provided to the petitioner.
He further added that so far as the second
contention of the learned counsel for the
petitioner is concerned that has been
misread as the same is only the pleading on
behalf of the Divisional Government
Advocate and the same is not a finding of
the appellate authority and, as such, there is
no illegality or infirmity in the order passed
by the court below.

14. He also added that the Judgments,
which were placed by the learned counsel
for the petitioner, are of the case where the
appeal, suit or application is not supported
by application for condonation of delay. In
the instant matter, the application for
condonation of delay was submitted and
the appellate authority directed to provide a
320 INDIAN LAW REPORTS ALLAHABAD SERIES
copy to the respondents counsel and, as
such, the respondents counsel had an
opportunity to oppose the application for
condonation of delay.

15. Having heard learned counsel for
the parties and after perusal of record, I
find that the order dated 21.2.2003 reveals
that on the first date of hearing, the appeal
was admitted and, thereafter, notices were
issued though it is settled proposition of
law that on delay condonation application,
notice is to be issued to the respondent/
party concerned and after deciding the
same, the matter shall be heard on merits.
Further so far as the issue with regard to the
jurisdiction, which was raised by the
Divisional
Government
Advocate,
is
concerned, there may not be any finding by
the appellate authority but since the fact
was there and it seems that same was in the
mind of the appellate authority while
deciding the appeal and, as such, it cannot
be said that while passing the order
aforesaid, the same has been taken into
consideration.

16. Prior to going into exhaustive
discussion over the issue, it is appropriate
to mention Section 5 of the Indian
Limitaion Act, 1963 (hereinafter referred to
as 'the Act 1963'), which is being quoted
hereunder:-

"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 (5 of 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."

17. Barely going through the aforesaid
Section,
the
word
which
has
been
emphasized by the Legislature is 'sufficient
cause and the satisfaction of the court'. So
far as the 'sufficient cause' is concerned, it
depends on factual matrix of the case in a
given situation. The bona fide nature of the
explanation and the diligent act of such
applicant are the base of test of sufficient
cause. If it is found that explanation is
concocted or the applicant is thoroughly
negligent in prosecuting his cause then
certainly that goes against such applicant,
who has moved application for condonation
of delay. The sufficient cause is to be
considered in a proper object, philosophy
and spirit. While dealing with such
situation, the court has always found out
paramount consideration of substantial
justice. Liberal approach, while dealing
with such applications, are required but it is
also the duty of the court to see that the
same may not be unbriddled and unguided.

18. It has also to be looked into that
there
is
material
difference
between
inordinate delay and short delay. While
condoning the inordinate delay, the Court
has to be rather strict as the same can
change the settled things as unsettled. It has
been settled that an inordinate delay could
not be condoned without notice to the
respondents and without recording any
reasons for condonation of delay. So far as
the issue of reaching to the substantial
justice
is
concerned,
the
same
is
undoubtedly a goal/intent of legislature but,
condoning the inordinate delay, without
issuance of notice or calling objection from
other side, shall frustrate the very object of
the aforesaid doctrine.
6 All. Ram Pravesh & Ors. Vs. State of U.P. & Anr.
321

19. So far as the argument of the
learned counsel for the respondents is
concerned that the appellate court had
directed to provide a copy of the appeal as
well as the application for condonation of
delay to the counsel for the respondents,
the same will not subserve the purpose as
the appellate authority had admitted the
appeal on the first date of hearing and,
virtually, no opportunity of hearing was
provided. Further if such procedure is
supposed to be sufficient in case of calling
objection on application for condonation of
delay then the very purpose and intent of
the legislature for enactment of the
Limitation Act will frustrate as the same is
not sufficing the very purpose of the word
'sufficient cause' mentioned in the Act
1963.

20. In the instant matter, the appeal
has been filed after an inordinate delay of
26 years. Admittedly, no notice was issued
and the appeal was admitted on the first
day of hearing without issuance of notice to
the petitioner. In such view of the matter,
the appellate authority has not only ignored
the provisions envisaged under the Act
1963 but has also overlooked the settled
proposition of law.

21. Considering the aforesaid facts
and
circumstances,
the
order
dated
21.2.2003 passed by the appellate authority
is hereby set aside.

22. The matter is remanded back to
the appellate authority to decide the matter
afresh after calling objections on the delay
condonation application submitted by the
petitioner
and
after
providing
due
opportunity of hearing to all the concerned
parties. The matter shall be concluded
within six months from the date of this
order. The petitioner shall appear before the
appellate authority within a period of 15
days.

23. The parties undertake that they
shall not seek unnecessary adjournments.

24. Interim protection granted by this
Court, vide order dated 8.8.2003 shall
remain continued till disposal of the appeal.

25. The writ petition is allowed
accordingly.
----------
(2022)06ILR A321
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.06.2022

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Application U/S 482 No.650 of 2022

Ram Pravesh & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Manoj Kumar Srivastava

Counsel for the Opposite Parties:
G.A., Sri Jeetendra Kumar Sharma

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 -Section 173, 482 -
Indian Panel Code, 1860 -Section 323,
498-A - Dowry Prohibition Act, 1961 -
Section 3/4: - Cognizance of Charge sheet
& continuation of criminal proceeding in a
matrimonial dispute - be quashed when
the parties (husband & wife) have resolved
their entire dispute through a duly verified
compromise - to avoid abuse of process of
law
-
Application
allowed
-
entire
proceeding are hereby quashed. (Para - 14,
15)

Application (U/s 482) is allowed. (E-11)