# Smt. Arti Devi v. District Judge Siddharthnagar & Ors

- **Citation:** (2014) 2 ILRA 623
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-01-22
- **Case number:** Civil Misc. Writ Petition No. 23319 of 2001
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-arti-devi-v-district-judge-siddharthnagar-ors-42862
- **Pages:** 3

## Headnote

C.P.C.-Order XXI- Exclusion of provisions
of Section 5 of limitation-Suit barred by
time-T/C not justified in entertaining
delay condonation application-it can be
entertained in appeal on revision by
virtue of section 3 of Act-Revisional
Court rightly interfered with such orderwarrant no interfere by Writ Court.

Held: Para-5
Section 5 applies to the stages subsequent
to institution of a valid suit and those
proceedings
which
are
construed
as
continuation of suit and not for seeking
condonation of delay in filing a time barred
suit. The applicability of Section 5 has been
excluded specifically to applications which
fall under Order XXI C.P.C. It shows that
even when the suit proceedings have come
to an end, in execution proceedings also
Section 5 shall not be applicable. A suit if
otherwise is barred by time and is not saved
by other provisions of Sections 4 and 6 to
24 of Act, 1963 then it shall not be
entertainable by the Court and has to be
dismissed in view of the obligation created
624 INDIAN LAW REPORTS ALLAHABAD SERIES
vide Section 3 of Act, 1963. Section 5
specifically says that it is applicable to an
appeal or in application but not to a suit.
The suit instituted by filing a plaint and a
plaint, in my view, would not be covered by
the term "application".

Case Law discussed:
1982 AWC 591; AIR 1973 Raj. 29L AIR 1988
Karnataka 83.

## Text

2 All] Smt. Arti Devi Vs. District Judge Siddharthnagar & Ors.
623
of a case. To remove any doubts it was
open to the learned counsel for the
applicant to have filed a question-answer,
the provisions whereof are available under
the Allahabad High Court Rules, 1952, and
the applicant would have been informed
about the correct legal status of the
disposal of the application. Thus, to argue
that the applicant could draw a legitimate
inference from such information of the
computer section of the High Court does
not appear to hold water. The clear
intention of the learned Judge, while
passing the order on 31.10.2013, was to
bail out the applicant only for a period of 6
months and nothing further. There is,
therefore, no occasion to brook any doubt
about the same or extend the benefit
thereof to the applicant.

24. Having recorded so, I find the
present application to be not maintainable
and, therefore, this Court does not have the
jurisdiction to entertain this application as
per the ratio of the judicial pronouncement
of the Apex Court in the case of Nazma
Vs. Javed Alias Anjum, (2013) 1 SCC 376,
and the case of Rakesh Kumar Pandey Vs.
Udai Bhan Singh, (2008) 17 SCC 764.

25. The application, therefore, being not
maintainable, is accordingly rejected without
prejudice to the rights of the applicant to move
a proper regular fresh bail application if so
advised in accordance with law.

26. The Registrar General is directed
to instruct the office not to furnish any
information without verifying the correct
status of any proceeding before this Court
as the information given by the computer
section in the present case has raised a
confusion even though the same is legally
unfounded
as
indicated
above.
The
Registrar General may, therefore, take steps
for issuing appropriate instructions to the
computer section and to the office in this
regard.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.01.2014

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 23319 of 2001

Smt. Arti Devi ...Petitioner
Versus
District Judge Siddharthnagar & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Chandeshwar Prasad, Sri Kushal Kant

Counsel for the Respondents:
C.S.C., Sri Ghanshyam Dubey, Jitendra
Kumar Yadav

C.P.C.-Order XXI- Exclusion of provisions
of Section 5 of limitation-Suit barred by
time-T/C not justified in entertaining
delay condonation application-it can be
entertained in appeal on revision by
virtue of section 3 of Act-Revisional
Court rightly interfered with such orderwarrant no interfere by Writ Court.

Held: Para-5
Section 5 applies to the stages subsequent
to institution of a valid suit and those
proceedings
which
are
construed
as
continuation of suit and not for seeking
condonation of delay in filing a time barred
suit. The applicability of Section 5 has been
excluded specifically to applications which
fall under Order XXI C.P.C. It shows that
even when the suit proceedings have come
to an end, in execution proceedings also
Section 5 shall not be applicable. A suit if
otherwise is barred by time and is not saved
by other provisions of Sections 4 and 6 to
24 of Act, 1963 then it shall not be
entertainable by the Court and has to be
dismissed in view of the obligation created
624 INDIAN LAW REPORTS ALLAHABAD SERIES
vide Section 3 of Act, 1963. Section 5
specifically says that it is applicable to an
appeal or in application but not to a suit.
The suit instituted by filing a plaint and a
plaint, in my view, would not be covered by
the term "application".

Case Law discussed:
1982 AWC 591; AIR 1973 Raj. 29L AIR 1988
Karnataka 83.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Jitendra Kumar Yadav,
Advocate holding brief on behalf of Sri
Chandeshwar Prasad, learned counsel for
the petitioner and perused the record.

2. The writ petition is directed
against the order dated 03.03.2001 passed
by District Judge, Siddharth Nagar
allowing Revision No. 29 of 2001.

3. It appears that for cancellation of sale
deed dated 22.01.1991 Original Suit No. 264
of 1997 was filed alongwith a delay
condonation application, whereupon the Trial
Court passed order condoning delay in filing
suit. Subsequently, when an application was
filed for recall of that order, that was also
rejected by Trial Court vide order dated
08.02.2001 and thereagainst a revision was
preferred by defendant, which has been
allowed by District Judge, Siddharth Nagar
vide impugned order dated 03.03.2001.

4. The Revisional Court has observed
that there is no provision in the Limitation Act
for condoning delay in filing suit. Learned
counsel for the petitioner could not show that
Section 5 of Limitation Act, 1963 (hereinafter
referred to as the "Act, 1963") would apply to
seek condonation of delay in filing a suit itself.
Once the suit itself is barred by time, the Court
is retrained to entertain the same by virtue
of Section 3.

5. Section 5 applies to the stages
subsequent to institution of a valid suit and
those proceedings which are construed as
continuation of suit and not for seeking
condonation of delay in filing a time barred
suit. The applicability of Section 5 has been
excluded specifically to applications which
fall under Order XXI C.P.C. It shows that
even when the suit proceedings have come to
an end, in execution proceedings also Section
5 shall not be applicable. A suit if otherwise
is barred by time and is not saved by other
provisions of Sections 4 and 6 to 24 of Act,
1963 then it shall not be entertainable by the
Court and has to be dismissed in view of the
obligation created vide Section 3 of Act,
1963. Section 5 specifically says that it is
applicable to an appeal or in application but
not to a suit. The suit instituted by filing a
plaint and a plaint, in my view, would not be
covered by the term "application".

6. This Court in Smt. Jagwanta Vs.
Smt. Nirmala and others, 1982 AWC 591
has specifically said that Section 5 does not
apply to suits or to applications under order
XXI Rule 2 C.P.C. A similar view has also
been taken in Badri Narayan Sharma Vs.
Panchayat Samiti, Dhariawad, AIR 1973
Raj. 29. The Karnataka High Court in
Mahboob Pasha v. Syed Zaheeruddin and
Ors., AIR 1988 Karnataka 83 has said that
Section 5 does not apply to original cause of
action so as to extend the period of limitation
by concession made by parties.

7. Learned counsel for the petitioner
also could not place anything before this
Court so as to pursue to take an otherwise
view in the matter. In my view, the District
Judge has rightly set at naught the Trial
2 All] Shiva Nand Gupta & Anr. Vs. State of U.P. & Ors.
625
Court's order by allowing revision since the
Trial Court has committed a serious
jurisdictional error by entertaining a time
barred suit and making ti within time by
allowing application under Section 5 of Act,
1963.
The
Revisional
Court's
order,
therefore, warrants no interference.

8. Dismissed. Interim order, if any,
stands vacated.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.05.2014

BEFORE
THE HON'BLE VINEET SARAN, J.
THE HON'BLE NAHEED ARA MONNIS, J.

Civil Misc. Writ Petition No. 23465 of 2010

Shiva Nand Gupta & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ashok Kumar Dwivedi, Sri N.C.
Rajvanshi, Sri Lal Ji Pandey

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Art.-226Compensation-land
occupied
by
PWDwithout
following
procedure
of
Land
Acquisition Act-for last 30 years petitioner
running from pillar to post-lastly in the year
2009 with mutual settlement agreed to pay
compensation at circle rate of 2001-although
not entitled for interest-but entitled 30%
solatium-payble
within
3
month
with
interest by 15% per annum in case of
default interest rate shall be 24 % apart
form cost of Rs. One Lacs-petition allowed.

Held: Para-10 & 11
We, however, hold that the petitioners
would be entitled to an amount of 30%
solatium on the assessed amount of Rs.
10,91,375/-. We further hold that on the
said amount of solatium the petitioners shall
also be entitled to interest at rate of 15%
per annum from 13.5.2010 till the date of
actual payment. The said amount shall be
paid to the petitioners within three months
from today failing which the respondents
shall be liable to pay interest at 24% per
annum from 13.5.2010 till the date of actual
payment.

11. Considering the fact that the land of the
petitioners was taken over 36 years back,
and they were paid compensation only after
filing of this writ petition, and before that
also the petitioners had to file another writ
petition earlier and had to wait for more than
three decades, because of which their family
members must have suffered substantial
loss, we direct that the respondents shall be
liable to pay cost, which we assess at Rs.
One lac. The said amount of Rs. One lac shall
also be paid to the petitioners within the
aforesaid period of three months from today.
The
Principal
Secretary,
Public
Works
Department, Government of U.P., shall
ensure that the order of this Court is
complied with within the specified time.

Case Law discussed:
2013(2) AWC 1795.

(Delivered by Hon'ble Hon'ble Vineet
Saran, J.)

1. This is a case where it is admitted
by the respondents that the land of the
petitioners was taken over by the State
authorities more than three decades back
on 1.3.1978 without resorting to the
procedure of acquiring the land under the
Land Acquisition Act or by adopting any
other procedure prescribed in law. It
shows complete high-handedness of the
State-authorities
in
depriving
the
petitioners, who are villagers, of their land
without following the procedure of law. It
is not expected of the State authorities to
illegally take over the land of any citizen