# Shambhu Sharan Chaubey and others v. State of U.P. and another

- **Citation:** (2012) 2 ILRA 906
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-07-25
- **Case number:** Civil Misc. Writ Petition No. 35569 of 2012
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shambhu-sharan-chaubey-and-others-v-state-of-u-p-and-another-42207
- **Pages:** 5

## 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

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
2 All] Shambhu Sharan Chaubey and others V. State of U.P. and another
907
Procedure, 1908 (in short, 'CPC') shall be
applicable and once the provisions of CPC
are applicable, the appeal could not be
admitted without condoning the delay in
filing the appeal. In his submissions,
through the appeals, the orders of the year
1996, passed by the prescribed authority
/Chief Revenue Officer were challenged.
The appeals were filed in the year 2012.

4. Sri Goswami submitted that only
legal questions are involved in this case,
therefore, the writ petition may be decided
on its own merit in view of the grounds
taken in the appeals without inviting the
counter affidavit. Therefore, with the
consent of learned counsel for the parties,
the writ petition is taken up for final
disposal.

5. For appreciating the controversy, it
would be necessary for me to look into the
provisions (sections 38 and 42 of the Act
and the relevant provisions of Order 41,
Rule 3A sub-rules (1), (2) and (3)),
contained in the CPC, for adjudication of
the appeals. Sections 38 and 42 of the Act
and Rule 3A sub-rules (1), (2) and (3) of
Order
41
of
CPC
are
reproduced
hereinunder:

"38. Powers of the appellate Court
and the procedure to be followed by it: (1)
In hearing and deciding an appeal under
this Act, the appellate Court shall have all
the powers and the privileges of a Civil
Court and follow the procedure for the
hearing and disposal of appeals laid down
in the Code of Civil Procedure, 1908.

(2) Where, under the provisions of
this Act, an appeal has to be heard by the
Commissioner, he may either hear the
appeal himself or transfer it for hearing to
any Additional Commission subordinate to
him.

42. Application of the Limitation Act,
1963: The provisions of Sections 4, 5 and
12 of the Limitation Act, 1963 shall be
applicable to all proceedings including
proceedings in appeals, applications and
objections under this Act.

Order 41, Rule 3A of the CPC

3A. Application for condonation of
delay: (1) When an appeal is presented
after the expiry of the period of limitation
specified therefor, it shall be accompanied
by an application supported by affidavit
setting forth the facts on which the
appellant relies to satisfy the Court that he
had sufficient cause for not preferring the
appeal within such period.

(2) If the Court sees no reason to
reject the application without the issue of a
notice to the respondent, notice thereof
shall be issued to the respondent and the
matter shall be finally decided by the Court
before it proceeds to deal with the appeal
under rule 11 or rule 13, as the case may
be.

(3) Where an application has been
made under sub-rule (1), the Court shall
not make an order for thte stay of
execution of the decree against which the
appeal is proposed to be filed so long as
the Court does not, after hearing under
rule 11, decide to hear the appeal."

6. From the bare reading of section
38 of the Act, it is clear that for deciding
the appeal, the procedure contained in the
CPC for deciding the appeal would be
applicable and in view of section 42 of the
Act, the provisions contained under section
908 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
5 of the Limitation Act would also be
attracted in case the appeal has been filed
after expiry of the period of limitation.

7. According to section 13 of the Act,
which provides provisions of appeal, the
limitation for filing the appeal is 30 days
from the date of order. Here in this case, as
has been noticed, the orders impugned in
the appeals were passed in the year 1996
and the appeals were filed in the year 2012.
Since the limitation for filing the appeal is
30 days from the date of order, therefore,
certainly the appeals were highly barred by
time by more than 15 years. Therefore, in
view of Order 41, Rule 3A(1) of the CPC,
it was to be filed alongwith an application
under section 5 of the Limitation Act with
supporting affidavit, stating therein the
facts on which the appellants rely to satisfy
the court, that they had sufficient cause for
not preferring the appeals within time. Sub
rule (2) of Order 41, Rule 3A of CPC
provides that in case there is no reason to
reject the application without issuing
notice, the notice is to be issued to the
other side before condoning the delay.
From the bare reading of the language used
in Order 41 Rule 3A sub-rules (1), (2) and
(3), it would transpire that the same is
mandatory in nature and not directory, as
consequences not to follow has been
clothed in the words used therein. It is well
settled that when the Statute provides to do
a thing in a particular manner and the
consequences to not follow the procedure
(manner) is given in the Statute, in that
eventuality, the provisions contained in the
Statute are held to be mandatory. Here in
the particular case, the consequences have
been given not to follow the procedure
contained in Order 41, Rule 3A of the
CPC, therefore, the provisions contained in
Order 41, Rule 3A of the CPC are
mandatory in nature and consequences not
to follow would be fatal in admitting the
appeal as without condoning the the delay,
the appeal could not be admitted in view of
sub rule (3) of Order 41, Rule 3A of CPC.
Reference may be given in AIR (1935) PC
85 Maqbul Ahmad and Others Vs. Omkar
Pratap Narain Singh and others, 2006(1)
SCC 164 HUDA Vs. B.K. Sood, JT 2005
(9) SC 503 Haryana Urban Development
Authority Vs. B.K. Sood and 2009 (5) SCC
121 (paras 11 and 12) State Bank of India
Vs. B.S. Agriculture Industries (I).

8. The controversy in hand may be
examined from the provisions contained in
sub-section (1) of section 3 of the
Limitation Act, perusal of which, talks
about bar of limitation, which provides that
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 been
set up as a defence. For this purpose, if any
appeal / revision is preferred beyond the
period of limitation, section 5 of the
Limitation Act empowers the court to
extend the period of limitation on its
satisfaction,
provided
the
application
contain
sufficient
ground
for
not
approaching the court within time.

9. Taking note of this, the apex Court
in the case of Noharlal Verma Vs. District
Cooperative
Central
Bank
Ltd.
Jagdalpur,
2008
14
SCC
445
(in
paragraphs 32 and 33 of the aforesaid
judgment) has observed 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
2 All] Shambhu Sharan Chaubey and others V. State of U.P. and another
909
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."

10. In the case of V.M. Salgaocar
and bros. Vs. Board of Trustees of Port of
Mormugao and another, 2005, 4 SCC 613
(in paragraph 20 of the judgment) the apex
Court has observed as under:

" 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."

11. In the case of Sneh Gupta Vs.
Devi Sarup and others, (2009)6 SCC 194
the apex Court (paragraph 70 of the said
judgment) has observed 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.

12. Further, in the case of Ragho
Singh Vs. Mohan Singh, 2001 (9) SCC
717, the apex Court (in paragraph 6) has
held as under:

" 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."

13. 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
910 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
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.

14. 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.

15. In view of the legal position, as
discussed above, the impugned order dated
3.4.2012,
passed
by
Commissioner,
Gorakhpur Division, District Gorakhpur
(respondent no. 2) cannot be sustained.

16. The writ petition succeeds and is
allowed. The impugned orders dated
3.4.2012, passed by respondent no. 2 in
Appeal Nos. 406K of 2012, 407K of 2012
and 408K of 2012, are hereby quashed.

17. The Commissioner, Gorakhpur
Division, Gorakhpur (respondent no. 2) is
directed to, first of all, decide the
application for condonation of delay filed
in Appeal Nos. 406K of 2012, 407K of
2012 and 408K of 2012 (Annexure nos. 9,
11 and 13 to the writ petition) and if delay
is condoned, thereafter, may proceed to
hear the appeals in accordance with law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.07.2012

BEFORE
THE HON'BLE SIBGHAT ULLAH KHAN, J.

Civil Misc. Writ Petition no. 36719 of 2012

Constable 4725 Manoj Kumar

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

Counsel for the Petitioner:
Sri N.L. Pandey
Sri Suyash Pandey

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Article
226Principle of Natural Justice-dismissal
order challenged allegations of violation
of Principle of Natural Justice-during
preliminary enquiry even being 'Ahir' by
cast had produced cast certificate as
Scheduled
Cast-held-where
guilt
admitted-technical plea of procedural
omission or violating Natural Justice-not
available-dismissal-proper.

Held: Para 6 and 7

As petitioner categorically admitted in
the preliminary inquiry that he obtained
appointment by showing himself to be a
member of scheduled caste hence it was
not necessary to search the initial
application
form
of
the
petitioner.
Moreover there is no allegation that in
the service book/record petitioner has
not been shown to have been appointed
under scheduled caste reserved quota.

Supreme
Court
in
Aligarh
Muslim
University and Ors. v. Mansoor Ali Khan
AIR 2000 SC 2783 and Ashok Kumar
Sonkar v. Union of India and Ors. (2007)
4 SCC 54 has held that a person
challenging an order on the ground that