# Smt. Chanda Devi v. State of U.P. & Ors

- **Citation:** (2023) 5 ILRA 334
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-12
- **Case number:** Writ B No. 2783 of 2022
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-chanda-devi-v-state-of-u-p-ors-50204
- **Pages:** 10

## Headnote

A. Consolidation Law - UP Consolidation
of Holding Act, 1953 - Sections 9-A(2) &
11(1) - Title matter - Appeal could not be
filed
within
limitation
period
-
Condonation of delay sought, which was
rejected - Rejection order of the appellate
court was also confirmed in the revision -
Justice oriented approach - Applicability -
Held, matter should not be thrown on the
ground of limitation rather adjudication
should be made on merit - High Court set
aside the impugned order and remitted
back the appeal for it's decision on merit
after condoning the delay in filing the
appeal. (Para 12, 16, 17 and 18)

Writ petition allowed. (E-1)

List of Cases cited:

## Text

334 INDIAN LAW REPORTS ALLAHABAD SERIES
Divisional Officer and dated 23.02.2021
passed by the Board of Revenue are invalid
and are hereby set aside. However, since
the application filed by the petitioners
under section 101 of the Code, 2006
appears to be incomplete and therefore,
cannot be termed as a valid application, it
shall be open to them to file a fresh
application stating/enclosing all requisite
details
and
documents.
If
such
an
application is filed, the same would be duly
considered by the competent authority. This
writ petition is, accordingly, allowed in
terms of the observation herein.
----------
(2023) 5 ILRA 334
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.04.2023

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ B No. 2783 of 2022

Smt. Chanda Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri
Shailendra
Kumar
Pandey,
Sri
Rituvendra Singh Nagvanshi, Sri R.C. Singh
(Sr. Advocate)

Counsel for the Respondents:
C.S.C., Sri Narsingh Pandey, Sri Prashant
Kumar Tripathi

A. Consolidation Law - UP Consolidation
of Holding Act, 1953 - Sections 9-A(2) &
11(1) - Title matter - Appeal could not be
filed
within
limitation
period
-
Condonation of delay sought, which was
rejected - Rejection order of the appellate
court was also confirmed in the revision -
Justice oriented approach - Applicability -
Held, matter should not be thrown on the
ground of limitation rather adjudication
should be made on merit - High Court set
aside the impugned order and remitted
back the appeal for it's decision on merit
after condoning the delay in filing the
appeal. (Para 12, 16, 17 and 18)

Writ petition allowed. (E-1)

List of Cases cited:

1. Kedar & ors. Vs Assistant Director of
Consolidation Banda & ors.; 1988 ALJ 358

2. Collector, Land Acquisition Anantnag & ors.
Vs Mst. Kantiji & ors.; AIR 1987 SC 1353

3. Bhagmal & ors. Vs Kunwar Lal & ors.; (2010)
12 SCC 159

(Delivered by Hon'ble Chandra Kumar
Rai, J.)

1. Heard Mr. R.C. Singh, learned
Senior Counsel assisted by Mr. Shailendra
Kumar Pandey, learned counsel for the
petitioner, learned Standing Counsel for the
State respondents, Mr. Prashant Kumar
Tripathi, learned counsel for respondent
No.5 and Mr. Narsingh Pandey, learned
Counsel for respondent No.12.

2. Brief facts of the case are that
family pedigree in order to appreciate the
controversy, will be relevant which is an
under:

Ganpat Dube

_________|_____________________
 |

Shobha Parmeshwara

Rajpati

Chanda Devi

3. The dispute pertains to old
khata No.137 consisting of 16 plots total
5 All. Smt. Chanda Devi Vs. State of U.P. & Ors.
335
area 5 bigha, 1 biswa and 8 dhoor. Smt.
Lakhpata was Zamidar/ proprietor of the
land in dispute. Smt. Lakhpata transferred
her entire right by registered sale deed
dated 02.12.1918 in favour of Sri Ganpat
Dube. It is also material that Smt.Lakhpata
was Sir holder of the land in dispute. Smt.
Lakhpata became ex-proprietary tenant by
virtue of provisions contained under
Section 10 of North Western Provinces
Tenancy Act 1901 due to transfer made by
Smt. Lakhpata to Sri Ganpat Dube, Smt.
Lakhpata was not heard of from 1348 Fasli
accordingly,
Sri
Ganpat
Dube
being
Jamindar took entire property in his
possession.
By
Virtue
of
Provisions
contained under Section 18 of the U.P.Z.A.
& L. R. Act, Sri Ganpat Dube became
bhumidhar of the land in dispute after date
of vesting. After death of Sri Ganpat Dube,
his two widows namely Smt. Sharda and
Smt.
Parmeshwara
succeeded
to
the
property and their names were accordingly
mutated in the revenue record. Smt.
Parmeshwara had no issue therefore, her
share was succeeded by Smt. Shobha. Smt.
Rajpati Devi daughter of Smt. Shobha
executed a will deed in favour of Chanda
Devi, who is petitioner before this Court.
Under the order of Amaldaramad dated
30.10.1970
passed
by
Supervisor/
Kannongo, name of Lalta, Rampadarth and
Ramsukh sons of Kanahaiya were ordered
to be mutated as heirs of Smt. Lakhpata.
Since the succession was disputed as
Supervisor/
Kannungo
did
not
have
jurisdiction to record the name of Lalta,
Rampadarth and Ramsukh under Section
33-A of U.P.Land Revenue Act on the basis
of P.A.-11 accordingly, Smt. Rajpati filed a
suit being suit No.425 under Section 229-B
of
U.P.Z.A.&
L.
R.
Act
claiming
declaration for her right and title in respect
to the plot in dispute stating that the order
of Amaldaramad dated 30.10.1970 is out
come of fraud. During the pedency of the
aforesaid suit, the village was brought
under
consolidation
operation
under
Section 4 of the U.P.C.H. Act as such suit
stood abated on 28.05.1979 in view of the
provisions contained under Section 5 of the
U.P.C.H. Act. In the Basic Year of
Consolidation operation Lalta, Rampadarth
and Ramsukh sons of Kanahaiya were
recorded over the plots of khata No.137
New khata No.105. Against basic year
entry Smt. Rajpati filed objection under
Section 9-A (2) of the U.P.C.H. Act
claiming exclusive right in the pots of
Khata No.105 stating that she herself is
cultivating two plots and remaining 14
plots has been given on Batai cultivation.
The Consolidation Officer heard the
aforementioned title objection filed by Smt.
Rajpti and vide order dated 19.02.1982
decided the objection against Smt. Rajpati
for 14 plots and decided in her favour for
two plots which were in her personal
cultivation.
Against
the
order
of
Consolidation officer dated 19.02.1982
Smt. Rajpati filed appeal under Section 11
of the U.P.C.H. Act on 16.08.1982 along
with prayer for condonation of delay
supported with affidavit of appellant. Sri
Janaki and Sri Jagai also filed their separate
appeals against the order of Consolidation
Officer dated 19.02.1982. All the three
appeals were consolidated and heard
together. The appellate court vide order
dated 18.03.1983 allowed all three appeals
setting aside the order of Consolidation
Officer. Against the appellate order dated
18.03.1983, Rampadarth and others filed
three separate revisions being revision
Nos734, 733 and 732 under Section 48 of
U.P.C.H. Act. All the three revisions were
consolidated and heard together. The
aforesaid revisions were allowed and
matter was remanded to the appellate Court
to decide the appeals afresh vide order
336 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 22.10.1984. In pursuance of the
remand order dated 22.10.1984 appeals
filed by Janki, Jagai and Rajpathi were
renumbered as Appeal Nos.4, 6 and 5
respectively. All the three appeals were
heard together and appellate court vide
order dated 31.05.2004 decided the appeal
whereby appeal No.4 filed by Janki, appeal
No.5 filed by Smt. Rajpati were allowed
and appeal No.6 filed by Jagai was
dismissed. The appellate court while
deciding the appeal vide order dated
31.05.2004 has taken into consideration the
evidence on record as well as provisions of
U.P.Z.A. and L.R.Act, 1950 and accepted
the claim of the petitioner on the basis of
provisions contained under the Act and
rules framed thereunder. Against the order
dated 31.05.2004 two revisions under 48 of
U.P.C.H. Act were filed by Ram Shanker
and others, who were consolidated and
heard together. Revisional court vide order
dated 16.03.2005 dismissed the revisions,
hence Ram Shankar and others challenged
the
order
of
appellate
court
dated
31.05.2004 and revisional court dated
16.03.2005 through Writ-B No.44157 of
2005 before this Court which was allowed
vide order dated 01.10.2010 quashing the
orders dated 31.05.2004 and 16.03.2005
and remanded the matter before appellate
Court to examine the delay condonation
matter, possession of the parties and the
revenue entry. In pursuance of the order of
this Court dated 01.10.2010 Settlement
Officer Consolidation has restored all the
three appeals and after hearing the counsel
for the parties dismissed all the three
appeals filed by petitioner's predecessor in
interest, Janki and Jagai on the ground of
limitation vide order dated 04.06.2016.
Petitioner filed recall application against
the appellate order dated 04.06.2016 which
was dismissed vide order dated 07.10.2016
accordingly petitioner filed two Separate
revisions under Section 48 of U.P.C.H. Act
against the order dated 04.06.2016 and
07.10.2016. One Jaglal has also filed his
separate revision against the appellate order
dated 04.06.2016. All the three revisions
were consolidated and heard together.
Revisional
Court
vide
order
dated
08.9.2021 dismissed all the three revisions
hence this writ petition.

4. This Court vide order dated
19.11.2022 has entertained the writ petition
and granted interim protection in the matter
however on the recall application filed on
behalf of respondent No.5 the earlier order
dated 19.11.2022 was recalled vide order
dated 13.02.2023 on the ground of
opportunity of hearing.

5. In pursuance of the order dated
19.11.2022 notices were issued to the
private
respondents
Nos.
5
to
15.
Respondent No.5 has already put in his
appearance before issuance of notice to the
respondents through Mr. Prashant Kumar
Tripathi Advocate. Respondent No.12 has
put in appearance through Mr. Narshing
Pancey Advocate after issuance of notice to
the respondent.

6.
As
per
office
report
dated
10.02.2023 service is sufficient upon
respondent Nos.6 to 10 and 12 to 15.
Officer has also reported that respondent
No.11 is dead. Petitioner has filed an
application for amendment to amend the
array of parties by mentioning deceased
against the name of respondent No.11, who
died issue-less and heirs are already on
record of the writ petition. accordingly this
Court vide order dated 28.03.2023 allowed
the amendment application.

7. Learned Senior Counsel for the
petitioner submitted that serious question of
5 All. Smt. Chanda Devi Vs. State of U.P. & Ors.
337
law has been raised in the title appeal under
Section 11 (1) of U.P.C.H. Act, but the
appeal has been dismissed on the ground of
limitation. He further submitted that in
appeal
prayer
has
been
made
for
condonation of delay along with separate
affidavit of the appellant, but the appellate
court has illegally dismissed the appeal on
the ground of limitation. He further
submitted that delay was not inordinate in
filing the appeal rather the appeal was filed
on 16.04.1982 against the order of
Consolidation Officer dated 19.02.1982, as
such dismissal of appeal on the ground of
limitation is against the principle of law
laid by this Court as well as Apex Court
from time to time for taking liberal view in
delay condonation matter. He further
submitted that earlier the claim of the
petitioner was allowed on merit by passing
detailed order considering the provisions of
law, as such the dismissal of the appeal
after remand order passed by this Court on
the ground of limitation only specially
when the delay is not inordinate will be
against the principle of law settled by Apex
Court for deciding the matter on merit
rather on technical ground. He further
submitted that even on merit, petitioner is
entitled to the right and title over the land
in dispute as after date of vesting no right
will accrue to Lakhpata as such Lalta,
Rampadarth and Ramsukh will not get any
right and petitioner will be entitled to the
right and title over the land in dispute in
view of the provisions contained under
Section 18 of U.P.Z.A. & L. R. Act.
Learned Senior Counsel for the petitioner
placed reliance upon the judgment of this
Court passed in Writ-B No.14670 of 1988
(Smt. Kalawati Vs. Deputy Director of
Consolidation and others) in which this
Court has affirmed the order condoning the
delay in filing the appeal before Settlement
Officer of Consolidation after following the
judgement of the Apex court.

8. On the other hand, Mr. Prashant
Kumar Tripathi, Counsel for respondent
No.5 submitted that in pursuance of the
remand order passed by this Court dated
01.10.2010 by which petitioner's writ
petition was allowed and matter was
remitted back before the appellate court to
decide the appeal afresh considering the
delay condonation matter and other points
on merit, the appellate court has considered
the delay condonation matter and rejected
the appeal on the ground of limitation. He
further
submitted
that
no
separate
application under Section 5 of Limitation
Act has been filed rather in the appeal itself
the prayer has been made for condonation
of delay, as such, delay in filing the appeal
was rightly refused by the appellate court.
He further submitted that sufficiency of
cause and reality of cause are two
different things. He further submitted that
there can be liberal view in respect to the
sufficiency of cause, but there cannot be
liberal view in respect to the reality of the
cause.
He
further
submitted
that
petitioner
has
not
filed
separate
application for condonation of delay as
such, delay cannot be condoned whether
the delay is inordinate or not. Mr.
Prashant Kumar Tripathi, counsel for
respondent No.5 placed reliance upon
judgment of this Court, reported in 1988
ALJ 358 Kedar and others Vs. Assistant
Director of Consolidation Banda and
others in order to demonstrate that there
can be no liberal view in respect to the
reality of the cause in filing the delay
condonation
application.
He
next
submitted that no interference is required
against the impugned order and writ
petition is liable to be dismissed.
338 INDIAN LAW REPORTS ALLAHABAD SERIES

9. I have considered the arguments
advanced by the counsel for the parties and
perused the record.

10. There is no dispute about the fact
that proceeding arises out of title matter
under Section 9-A (2) of U.P.C.H. Act.
There is also no dispute about the fact that
title appeal filed by the petitioner on
16.04.1982
against
the
order
dated
19.02.1982
passed
by
Consolidation
Officer has been dismissed by the appellate
court on the ground of limitation only.
There is also no dispute about the fact that
revision filed by the petitioner against the
order dismissing the petitioner's title appeal
on the ground of limitation has been also
dismissed.

11.
In
order
to
appreciate
the
controversy the perusal of the appeal under
Section 11 (1) of U.P.C.H. Act filed by
Smt. Rajpati taking specific grounds
specially in paragraph No.10 of the memo
of appeal with respect to condonation of
delay supported by the affidavit of the
appellant will be relevant which are as
under:

न्यायालय एस० ओ० सी० महोदय हर्रैया

1- र्राजपति देवी बेवा र्राजेन्र सा० मझो० िप्पा बेलवा
प० अमोढा िह० हर्रैया तजला बस्िी।

बनाम

1-र्रामसुख, | | सा० मझौवा दूबे

2- लालिा | पुत्रगण | िप्पा- बेलवा पर्रगना अमोढा
िह० हर्रैया

3- पदार्रथ | | तजला- बस्िी

4- ग्राम सभा प्रधान |

5- सर्रकार्र उ०प्र० द्वार्रा तजलातधकार्री बस्िी

धार्रा- 11 सी एव एक्ट

अपील बनर्राजी फैसला श्रीमान सी०ओ० महोदय
तवक्रम जोि बाबि वाद सं० 2486, 2487, 2488,
 2489, 2490, 2491, 2492, 2493, 2494, 2495
धार्रा 9अ

(2) बाबि मौ० मझौवा बस्िी िप्पा बेलवा पर्रगना
अमोढा ि० हर्रैया तजला बस्िी र्रामसुख बनाम लालिा िा०
फैसला 19-02-1982

अपीलान्ट तनम्नतलतखल तनवेदन कर्रिा हैैः-

1- यह तक फैसला अदालि मािहि तखलाफ कानून
कातबज खारर्रजी है।

2- यह तक अदालि मािहि ने उक्त वझमूला तमतसल
पर्र गौर्र नहीं फर्रमाया है। फैसला इसके तखलाफ सही नहीं है।

3- यह तक अदालि मािहि का लीगल पेपर्र के सही
नही है।

4- यह तक अदालि मािहि में सही िनकी हास नहीं
कायम तकया है और्र नहीं तटत ंग ही सही है।

5- यह तक यह बाि बखूबी सातबि है तक
आ०तन०पहले लखमन्िी देवी वीयर्र की थी तजसमें गनपि के
हक में बैनामा तकया और्र गनपि के कानूनी को जायज वारर्रस
र्राजपिी अपीलातन्टया ही है।

6- यह तक र्रेस्पों ेन्ट किई लखपिी के नािी नहीं है
और्र ना ही लखपिी उसकी नानी है।

7- यह तक अदालि माल द्वार्रा यह तनयि हो चुका है
तक अपीलातन्टया ही आ०तन० की मातलक बिौर्र भूतमधर्र व
कातबज है।

8- यह तक कब्जा भी अपीलातन्टयान ही आतश्रि है
और्र वह तनयमानुसार्र है।

9- यह तक र्रेस्पोन् ेन्ट मो गलि संख्या व तबला तकसी
हक के आ०तन० के फजी ढंग से ल र्रहे है।

10- यह तक आदेश तदनांक 19-02-82 की
जानकार्री 23-02-82 को हुई और्र उसी तदन नकल की
दर्रख्वास्ि तदया जो 05-03-82 को तमला। वो नकल अपने
वकील को अपील दातखल के बाबि देकर्र घर्र चली गयी
लेतकन भूल से अपील अन्दर्र तमयाद दातखल नहीं हो सकी।
जानबूझकर्र नहीं तकया है। कानून तमयाद हस्व दफा 5 का
फायदा तमलना जरूर्री है।

अिैः अपील हाजा दातखल उम्मीदवार्र ह ूँ तक कानून
तमयाद हस्व दफा 5 का फायदा देकर्र अपील मंजूर्र तकया
जाये। आ०तन० की भूतमधर्र घोतिि तकया जावे िथा
प्रतिवादीगण र्रेस्पोन् ेन्ट का नाम खारर्रज तकया जावे।

अपीलान्ट
16-04-82
5 All. Smt. Chanda Devi Vs. State of U.P. & Ors.
339
न्यायालय एस०ओ०सी० महोदय हर्रेया बस्िी।
अ०नं० सन 82
र्राजपिी देवी बनाम र्रामसुख
बयान हल्फी तमनजातनब श्रीमिी र्राजपिी

1- मैं बहलफ बयान कर्रिी ह ूँ और्र कसम खािी ह ूँ तक
मेर्रा नाम र्राजपिी मेर्रे पति का नाम र्राजेन्दर्र सा० मझौवा िप्पा
बेलवा पर्रगना अमोढा िहसील हर्रेया तजला बस्िी की तनवासी
ह ूँ।

2- मैं बहलफ बयान कर्रिी ह ूँ और्र कसम खािी ह ूँ तक
आदेश तदनांक 19-2-82 की जानकार्री 23-2-82 को हुई
और्र उसी तदन नकल की दर्रखास्ि तदया जो 5-3-82 को
तमला नकल और्र अपील का खचाा अपने वकील को देकर्र घर्र
चली गई और्र आज जब िार्रीख पिा लगाने आई िब पिा
चला तक वकील साहब अपील दातखल कर्रने से भूल गये
इसतलए आज पुनैः अपील दातखल तकया जा र्रहा है मैंने जान
बूझ कर्र कोई गलिी....िसाहुली नहीं तकया ह ूँ इसतलए हर्र
सूर्रि में दफा-5 कानून तमयाद का फायदा पाने का मुसाहक
ह ूँ।

3- मैं बहलफ बयान कर्रिा ह ूँ और्र कसम खािा ह ूँ तक
उपर्रोक्त कथन बयान हल्फी....मेर्रे ज्ञान से सत्य है। इसमें कोई
बाि तिपाई नहीं गई हैं। और्र ना झूठ हैं पर्रमेश्वर्र मेर्री मदद कर्रें।

प्राथी
श्रीमिी र्रामपिी
िा० 16.4.82

12. After perusal of the grounds of
appeal specially paragraph No.10 of the
grounds of appeal filed by the petitioner as
well as affidavit filed in appeal as well as
delay condonation matter, the dismissal of
tittle appeal on the ground of limitation will
be against the justice oriented approach of
the Court.

13. It is also material that on the
earlier occasion, the matter was decided in
favour of the petitioner on merit although
that orders have been set aside by this
Court while allowing the writ petition filed
by the contesting respondents, but the fact
remains that interesting question of title is
involved in the matter as such, dismissal of
the petitioner's appeal which was filed
within two months from the date of the
order of Consolidation Officer, will be
against the interest of justice.

14. Honble Apex Court in the case is
reported in AIR 1987 S.C. 1353 Collector,
Land Acquisition Anantnag and others
Vs. Mst. Kantiji and others has held that
matter should be adjudicated on merit in
place of dismissal of the case on technical
grounds. Paragraph No.3 of Judgment is
relevant which is as follows:

"3.
The
legislature
has
conferred the power to condone delay by
enacting
Section
5
of
the
Indian
Limitation Act of 1963 in order to enable
the Courts to do substantial justice to
parties by disposing of matters on 'merits'.
The
expression
"sufficient
cause"
employed by the legislature is adequately
elastic to enable the courts to apply the
law in a meaningful manner which subserves the ends of justice that being the
life-purpose for the existence of the
institution of Courts. It is common
knowledge that this Court has been
making a justifiably liberal approach in
matters instituted in this Court. But the
message
does
not
appear
to
have
percolated down to all the other Courts in
the
hierarchy. And
such
a
liberal
approach is adopted on principle as it is
realized that:-

"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."
340 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Ordinarily a litigant does not
stand to benefit by lodging an appeal late.

2. Refusing to condone delay can
result in a meritorious matter being
thrown out at the very threshold and cause
of justice being defeated. As against this
when delay is condoned the highest that
can happen is that a cause would be
decided on merits after hearing the
parties.

3. "Every day's delay must be
explained" does not mean that a pedantic
approach should be made. Why not every
hour's delay, every second's delay? The
doctrine must be applied in a rational
common sense pragmatic manner.

4. When substantial justice and
technical considerations are pitted against
each other, cause of substantial justice
deserves to be preferred for the other side
cannot claim to have vested right in
injustice being done because of a nondeliberate delay.

5. There is no presumption that
delay is occasioned deliberately, or on
account of culpable negligence, or on
account of mala fides. A litigant does not
stand to benefit by resorting to delay. In
fact he runs a serious risk.

6. It must be grasped that
judiciary is respected not on account of its
power to legalize injustice on technical
grounds but because it is capable of
removing injustice and is expected to do
so.

Making
a
justice-oriented
approach from this perspective, there was
sufficient cause for condoning the delay in
the institution of the appeal. The fact that
it was the 'State' which was seeking
condonation and not a private party was
altogether irrelevant. The doctrine of
equality before law demands that all
litigants, including the State as a litigant,
are accorded the same treatment and the
law is administered in an even handed
manner.
There
is
no
warrant
for
according a step motherly treatment when
the 'State' is the applicant praying for
condonation of delay. In fact experience
shows that on account of an impersonal
machinery (no one in charge of the matter
is directly hit or hurt by the judgment
sought to be subjected to appeal) and the
inherited
bureaucratic
methodology
imbued with the note-making, file pushing
and passing-on-the-buck ethos, delay on
its part is less difficult to understand
though more difficult to approve. In any
event, the State which represents the
collective cause of the community, does
not deserve a litigant-non-grata status.
The Courts therefore have to be informed
with the spirit and philosophy of the
provision
in
the
course
of
the
interpretation of the expression "sufficient
cause". So also the same approach has to
be evidenced in its application to matters
at hand with the end in view to do even
handed justice on merits in preference to
the approach which scuttles a decision on
merits. Turning to the facts of the matter
giving rise to the present appeal, we are
satisfied that sufficient cause exists for the
delay. The order of the High Court
dismissing the appeal before it as time
barred, is therefore set aside. Delay is
condoned. And the matter is remitted to
the High Court. The High Court will now
dispose of the appeal on merits after
affording
reasonable
opportunity
of
hearing to both the sides."

15. Apex Court in the case reported in
(2010) 12 Supreme Court cases 159
Bhagmal and others Vs. Kunwar Lal and
others has also considered the scope of
delay condonation matter for setting aside
the ex-parte decree. Paragraph Nos. 10, 11,
12 and 13 of the judgment of Apex Court
5 All. Smt. Chanda Devi Vs. State of U.P. & Ors.
341
rendered in Bhagmal (Supra) are relevant
which are as under:-

10. This well considered order
of the appellate Court came to be
interfered with by the High Court solely
on the ground that there was no
application for condonation of delay
made
by
the
appellants/defendants
before the Trial Court in support of their
application under Order IX Rule 13
CPC. The High Court observed that the
appellate Court had not recorded any
finding on the question as to whether the
filing of the application under Section 5
of the Limitation Act was necessary or
not and went on to decide the application
on merits and, therefore, it had exceeded
its jurisdiction. The High Court also
commented on the fact that the ex-parte
decree was decided on 19.4.1985, while
the application for setting aside the exparte decree was filed on 8.7.1988 and
that no application for condonation of
delay under Section 5 of the Limitation
Act was filed. Relying on Article 123 of
the Limitation Act, the High Court took
the view that the application ought to
have been filed within 30 days from the
date of passing of the decree and since it
was not so filed, at least a condonation of
delay application should have been made
under Section 5 of the Limitation Act
and, therefore, in the absence of prayer
for condonation of delay, the appellate
Court could not have allowed the
application under Order IX Rule 13.

11. In our opinion, the High
Court was not justified in taking a
hypertechnical view. We have seen all the
orders. It is quite clear from the Trial
Court's order that the Trial Court
entertained the application on merits.
The
Trial
Court
undoubtedly
has
referred to the reply of the respondents
to the effect that the application for
setting aside the ex-parte decree was
beyond the limitation. However, the view
taken by the Trial Court was based more
on the merits. In fact, it went on to
record the finding that there was no
compromise
and
the
theory
of
compromise and delay on account of that
was not acceptable. The Trial Court has
more or the less based its findings
regarding delay on the basis of the order
sheets. That was not right as the order
sheets nowhere bore the signatures of the
parties. They were mechanically written
mentioning
"parties
as
before".
Therefore, the Trial Court did not throw
the application under Order IX Rule 13
merely on the basis of the fact that no
application for condonation of delay was
made. It went on to consider the delay
aspect as well as the merits and even
allowed the parties to lead evidence.

12. It is to be seen here that the
question
of
delay
was
completely
interlinked with the merits of the matter.
The appellants/defendants had clearly
pleaded that they did not earlier come to
the Court on account of the fact that
they did not know about the order
passed by the Court proceeding ex-parte
and also the ex-parte decree which was
passed. It was further clearly pleaded
that they came to know about the decree
when
they
were
served
with
the
execution notice. This was nothing, but a
justification
made
by
the
appellants/defendants for making the
Order IX Rule 13 application at the time
when it was actually made. This was also
a valid explanation of the delay. The
question of filing Order IX Rule 13
application was, in our opinion, rightly
considered by the appellate Court on
merits and the appellate Court was
absolutely right in coming to the
342 INDIAN LAW REPORTS ALLAHABAD SERIES
conclusion that appellants/defendants
were
fully
justified
in
filing
the
application under Order IX Rule 13
CPC at the time when they actually filed
it and the delay in filing the application
was also fully explained on account of
the fact that they never knew about the
decree and the orders starting the exparte proceedings against them. If this
was
so,
the
Court
had
actually
considered the reasons for the delay also.
Under such circumstances, the High
Court should not have taken the hypertechnical
view
that
no
separate
application was filed under Section 5.

13.
The
application
under
Order IX Rule 13 CPC itself had all the
ingredients
of
the
application
for
condonation of delay in making that
application.
Procedure
is
after
all
handmaid of justice. Here was a party
which bona fide believed the assurance
given in the compromise panchnama
that the respondent No. 1/plaintiff would
get his suit withdrawn or dismissed. The
said compromise panchnama was made
before the elders of the village. Writing
was
also
effected,
displaying
that
compromise. The witnesses were also
examined. Under such circumstances,
the
non-attendance
of
the
appellants/defendants, which was proved
in the further proceedings, was quite
justifiable. The appellants/defendants,
when ultimately came to know about the
decree, had moved the application within
30 days. In our opinion, that was
sufficient.

16. The judgment cited by the counsel
for the petitioner rendered in Smt.
Kalawati
Devi
(Supra)
has
also
considered the judgment of Apex Court
rendered in Collector, Land Acquisition
Anantnag and others (Supra) & has held
that matter should not be thrown on the
ground of limitation rather adjudication
should be made on merit as such the
judgment cited by learned counsel for the
petitioner will be applicable but judgment
cited by learned counsel for the respondent
No.5 will not be applicable in order to
advance the cause of justice..

17. Considering the entire facts and
circumstances of the case as well as ratio of
law laid down by the apex court in the
Collector, Land Acquisition Anantnag
(Supra), the impugned appellate order
dated 04.06.2016 as well as order dated
07.10.2016 passed by respondent No.3-
Settlement Consolidation Officer Basti in
the appeal Nos.447 (Rajpati Devi Vs.
Ramsukh etc) as well as revisional order
dated 08.09.2021 passed by respondent
No.2-Deputy Director of Consolidation in
revision No.30 and revision no. 37 are
liable to be set aside and same are hereby
set aside. Considering the explanation of
delay in filing the appeals under Section-11
(1) of U.P.C.H. Act as well as ratio of law
laid down by Apex Court delay in filing
appeal against the order of Consolidation
Officer
dated
19.02.1982
is
hereby
condoned.

18. The writ petition stands allowed in
part and matter is remitted back before the
respondent No.3 Settlement Consolidation
Officer Basti to decide the appeal Nos.447,
448 and 449 on merit after affording
opportunity of hearing to the parties
expeditiously preferably within a period of
four months from the date of production of
certified copy of this order without granting
any unnecessary adjournment from either
of the parties.

No order as to costs.
----------
5 All. Madhyanchal Vidyut Vitaran Nigam Ltd. Vs. State of U.P. & Ors.
343
(2023) 5 ILRA 343
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.05.2023

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Writ C No. 32520 of 2016

Madhyanchal Vidyut Vitaran Nigam Ltd.
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sunil Kumar Tripathi, Sri Devesh
Tripathi

Counsel for the Respondents:
C.S.C., Sri Goptal Narain

Civil Law - U.P. Industrial Disputes Act,
1947- Impugned award passed-reinSt.d the
Opposite party-a workman-Labour Court not
considered
the
documents
filed
by
the
Department- mere finding that oral termination
was not according to law would not ipso facto
lead to a conclusion that the workman should
be reinSt.d with back wages-and continuity in
service-a consolidated and lump sum amount of
compensation could have served the purpose-as
the age of respondent was 53 years- as of now
he
must
have
attained
the
age
of
superannuation- not just for reinSt.ment after
attaining age of superannuation -relief of
reinSt.ment with continuity in service and
backwages is denied-Rs. 2,00,00/- as lumpsum
compensation granted.

Writ allowed in part. (E-9)

List of Cases cited:

1. Deputy Executive Engineer Vs Kuberbhai
Kanjibhai, (2019) 4 SCC 307,

2. St. of Uttarakhand Vs Raj Kumar, 2019 SCC
OnLine SC 16,

3. Assistant Engineer, Rajasthan Development
Corporation & anr. Vs Gitam Singh (2013) 5 SCC
136,

4. Range Forest Officer Vs S.T. Hadimani
alongwith St. of Kar. & anr. Vs S.T. Hadimani
(2002) 3 SCC 25

5. St. of U.P. & anr. Vs Chhunna Lal & anr.
reported in 2019 SCC OnLine All 4262

6. St. of Karn. Vs Uma Devi reported in (2006) 4
SCC 1

7. Civil Misc. Writ Petition No.1110 of 1986 (U.P.
St. Electricity Board & anr. Vs P.O. Labour Court,
Gorakhpur & Anr.);

8. Gammon India Limited Vs Niranjan Dass
(1984) 1SCC 509;

9. Management of M/s Willcox Buck Well India
Ltd. v. Jagannath & ors. AIR 1974 Supreme
Court 1166;

10. Bhagwati Prasad Vs Chandramaul reported
in AIR 1966 Supreme Court 735;

11. Ram Sarup Gupta (dead) by L.Rs v. Bishun
Narain Inter College & ors. reported in AIR 1987
Supreme Court 1242;

12. Surendra Kumar Verma & ors. v. Central
Government
Industrial
Tribunal-cum-Labour
Court, New Delhi & anr. (1980) 4 SCC 443;

13. Sudarshan Rajpoot Vs Uttar Pradesh St.
Road Transport Corporation ,(2015) 2 SCC 317;

14. Punjab Land Development & Reclamation
Corp. Ltd. Chandigarh Vs Presiding Officer,
Labour Court, Chandigarh & ors. Divisional
Controller, Maharashtra St. Road Transport
Corporation,
Amravati
Vs
Chandrashekhar
Maribhau Deshmukh & anr. , (1990) 3 SCC
682;

15. U.P. Drugs & Pharmaceuticals Co. Ltd. v.
Ramanuj Yadav & ors. (2003) 8 SCC 334;

16. Devinder Singh Vs Municipal Council, Sanaur
(2011) 6 SCC 584;