# Smt. Risalo v. IInd A.D.J. and others

- **Citation:** (2007) 2 ILRA 405
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-03-20
- **Case number:** Civil Misc. Writ Petition No. 23289 of 1998
- **Bench:** Anjani Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-risalo-v-iind-a-d-j-and-others-40924
- **Pages:** 5

## Headnote

Limitation Act-Section 5-Application for
condonation
of
delay-in
filling
application under order 9 rule 13 of
C.P.C.-Rejection on the ground of want
of proper explaination-held-view taken
by Trail Court contrary to law.

Held: Para 7

Learned
counsel
for
the
petitioner
submitted that in view of the decision of
the Apex Court, referred to above, is
abundant the view taken by the Courts
below in refusing to condone the delay in
filing the application under Order IX,
Rule 13 is contrary to law. Learned
counsel further submitted that in the
facts
and
circumstances the Courts
below ought to have condone the delay
in filing the application for setting aside
ex-parte decree.
Case law discussed:
AIR 1987 SC-1353
J.T. 2000 (2) SC-569
AIR 1978 486

## Text

2 All] Smt. Risalo V. IInd A.D.J. and others
405
23. In view of the above, Substantial
question of law no.1 is decided in
negative as it was held that no prior
permission
of
Settlement
Officer,
Consolidation was necessary as required
under Section 5(c )(ii) of the U.P.
Consolidation of Holdings Act and the
impugned sale deed could not be declared
void.
The
judgment
of
the
lower
Appellate Court is vitiated in law and is
liable to be set aside and the suit is liable
to be decreed. The Substantial question of
law no.2 is answered in affirmative.

24. With the result, Review
Application is allowed. The judgmentdated 8.12.2004 passed in Second Appeal
stands reviewed and the Second Appeal is
allowed. Judgment of Lower Appellate
Court is set aside and the Suit is
dismissed, but no order as to cost.
Review allowed
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.03.2007

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No. 23289 of 1998

Smt. Risalo

...Petitioner
Versus
IInd A.D.J. and others ...Opposite Parties

Counsel for the Petitioner:
Sri B.D. Mandyan
Sri M.D. Singh
Sri P.R. Ganguly
Sri Ramanuj Pandey
Sri S.D. Kautilya
Sri Anil Kumar
Sri S.C. Mandhyan
Sri Satish Mandhyan

Counsel for the Opposite Parties:
Sri Suneel Rai
S.C.

Limitation Act-Section 5-Application for
condonation
of
delay-in
filling
application under order 9 rule 13 of
C.P.C.-Rejection on the ground of want
of proper explaination-held-view taken
by Trail Court contrary to law.

Held: Para 7

Learned
counsel
for
the
petitioner
submitted that in view of the decision of
the Apex Court, referred to above, is
abundant the view taken by the Courts
below in refusing to condone the delay in
filing the application under Order IX,
Rule 13 is contrary to law. Learned
counsel further submitted that in the
facts
and
circumstances the Courts
below ought to have condone the delay
in filing the application for setting aside
ex-parte decree.
Case law discussed:
AIR 1987 SC-1353
J.T. 2000 (2) SC-569
AIR 1978 486

(Delivered by Hon'ble Anjani Kumar, J.)

1. By means of present writ petition
under Article 226 of the Constitution of
India, petitioner Smt. Risalo challenges
the order passed by II nd Additional
District Judge, Ghaziabad dated 13th
April, 1998, whereby the appeal filed by
the petitioner against the order dated 24th
January, 1998 has been dismissed. The
order dated 24th January, 1998 was
passed by the trial Court on the
application moved by the petitioner in
original suit no. 181 of 1989. It so happen
that the suit no. 181 of 1989 is decreed
ex-parte on 30th May, 1989. The
petitioner filed application for recall of
the order decreeing the suit no. 181 of
1989 by way of an application under
406 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Order IX Rule 13, read with Section 151
of the Code of Civil Procedure. On the
pleadings of the parties, it appears that the
petitioner filed a suit before Munsif
concerned being suit no. 743 of 1992. In
the aforesaid suit no. 743 of 1992, the
defendant-contesting respondent in this
petition filed written statement on 8th
September, 1992 and it is only after filing
of the written statement, the petitioner
came to know on 8th September, 1992
that suit no. 181 of 1989 has been decreed
ex-parte and the decree was also got
executed ex-parte passed in suit no. 181
of 1989. The petitioner has explained that
on coming to know of the ex-parte decree
dated 30th May, 1989 on 8th September,
1992, the petitioner got the record
inspected on 13th October, as 11th 12th
and 13th September, 1992 were holidays
and from 14th September, 1992 to 12th
October, 1992, the Advocates of the
judgeship were on strike and has filed the
application on 5th November, 1992
wherein it has been explained that for th
first time, as stated above, the petitioner
came to know of the ex-parte decree, it
was therefore prayed that the ex-parte
decree may be set aside and the delay, if
any, in filing the aforesaid application
may be condoned.

2.

The
defendant-contesting
respondent in this petition contested the
statement
made
by
petitioner
and
submitted that even on her own saying the
petitioner has acquired knowledge of the
ex-parte decree on 8th September, 1992
but she has not given any satisfactory
explanation of not filing the application
for setting aside the ex-parte decree up to
9th October, 1992 and even assuming that
12th October, 1992 was a holiday for the
Court, she should have filed the said
application on 13th October, 1992,
whereas the application has been filed
beyond time and explanation filed for the
condonation of delay should not be
accepted. The petitioner stated that on
19th October, 1992 she obtained the copy
of Intkhab from the concerned Lekhpal
and on 30th October, 1992 after the
Courts were re-opened, she filed the
application on 5th November, 1992. The
trial Court found that the explanation is
not sufficient for condonation of delay in
filing the aforesaid application under
Order IX Rule 13, read with Section 151
of Code of Civil Procedure, thus rejected
the same vide its order dated 24th
January, 1998.

3. Aggrieved by the order passed by
the trial Court dated 24th January, 1998,
the petitioner filed appeal before the
lower appellate authority, which vide
judgment and order dated 13th April, 1998
dismissed the appeal and confirmed the
order passed by the trial Court, thus this
writ petition.

Heard learned counsel appearing on
behalf of the parties.

4. Learned counsel appearing on
behalf of the petitioner in support of his
contention relied upon the law laid down
by the Apex Court reported in AIR 1987
S.C.,
1353
-
Collector,
Land
Acquisition, Anantnag and another Vs.
Mst. Katiji and others, wherein the
Apex Court in paragraph 3 has held,
which reads as under:-

"3. The legislature has conferred the
power to condone delay by enacting S. 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
2 All] Smt. Risalo V. IInd A.D.J. and others
407
"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 :-

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 th 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 or 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 stepmotherly 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 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
408 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
therefore, set aside. Delay is condoned.
And the matter is remitted t the High
Court. The High Court will now dispose
of the appeal on merits after affording
reasonable opportunity of hearing to both
the sides.

5. In view of above law laid down
by the Apex Court in the case of
Collector,
Land
Acquisition
(supra),
which has been followed by the Apex
Court in the subsequent decisions in the
case of G.P. Srivastava Vs. Shri R. K.
Raizada & Ors. JT 2000 (2) SC, 569 and
International Airports Authority of India
Vs. M.L. Dalmia & Co. Ltd., particularly
in view of the law laid down in the case of
Collector, Land Acquisition (supra), in
clause 4, 5 and 6, which read thus, in my
opinion the present writ petition deserves
to be allowed.

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 or removing injustice
and is expected to do so.

6. Learned counsel for the petitioner
has also relied upon the decision in the
case of Ramji Dass and others Vs.
Mohan Singh reported in ARC 1978,
496, wherein the Apex Court has held that
"we are inclined to the view that, as far as
possible, Courts' discretion should be
exercised in favour of hearing and not to
shut out hearing".

7. Learned counsel for the petitioner
submitted that in view of the decision of
the Apex Court, referred to above, is
abundant the view taken by the Courts
below in refusing to condone the delay in
filing the application under Order IX,
Rule 13 is contrary to law. Learned
counsel further submitted that in the facts
and circumstances the Courts below ought
to have condone the delay in filing the
application for setting aside ex-parte
decree.

8. On the other hand, learned
counsel for contesting respondent has
submitted that the Courts below have not
committed any error which may warrant
any interference by this Court.

9. In view of the above discussions,
the writ petition succeeds and is therefore
allowed. The order dated 13th April, 1998,
passed by IInd Additional District Judge,
Ghaziabad and the order dated 24th
January, 1998, passed by the trial Court
are hereby quashed. The ex-parte decree
dated 30th May, 1989 is recalled and the
suit is restored to its original number on
the payment of cost of Rs.500/- to be paid
by the petitioner to the defendantcontesting respondent in this petition. The
matter will now go back to the trial court
with the direction to decide the same after
affording an opportunity of hearing to the
petitioner within a period of six months'
from the date of presentation of a certified
copy of this order before it.
Petition allowed.
---------
2 All] Walliullah V. State of U.P.
409
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.11.2006

BEFORE
THE HON'BLE SHIV SHANKER, J.

Criminal Misc. Application No. 555 of 2006

Walliullah

...Appellant (In Jail)
Versus
State of U.P.

...Respondent

Counsel for the Appellant:
Sri Vinay Saran

Counsel for the Respondent:
A.G.A.

Code of Criminal Procedure-Section 407Transfer of Session Trail-on groundstaken
senior
Advocate
in
District
Varanasi is not ready to appear on behalf
of applicant-appointment of Amiecus
Curiae-itself denotes this fact- heldapart from violation of section 302 of the
Code,
there
shall
be
denied
of
fundamental
Rights
of
applicantconferred under Article 21 and 22 (1) of
constitution-case
transferred
from
Session Division Varanasi to session
judge Ghaziabad.

Held: Para 7

The appointing of amicus curiae for
defending the case of the applicant
shows that he was unable to engage any
Advocate in the district of Varanasi as
well as out side of district Varanasi
according to his choice. It appears that
there is violation of provision of Section
302 of the Code-of Criminal Procedure,
1973 as well as the fundamental rights
conferred by Articles 21 and 22(1) of the
Constitution of India, as the applicant is
ready to engage an Advocate of his
choice for doing the Pairvi of his case. In
such
circumstances,
it
will
be
appropriate in the ends of justice that
the above three connected sessions trials
pending in the court of Special Judge
(E.C.Act), Varanasi be transferred to any
other district.
Case law discussed:
2006 (3) SCC(Crl.)-400
2005(8) SCC-771
2004 SCC(Crl.)-999
1974 SCC(Crl.)-59
1973 SCC(Crl.)-349

(Delivered by Hon'ble Shiv Shanker, J.)

1. This is a transfer application
moved under Section 407 of the code of
Criminal Procedure on behalf of accusedapplicant Waliullah son of Habibullah
praying to recall three connected Sessions
Trial No. 368 of 2006, under Sections
3/4/5/ Explosive Substance Act; 15/16
Unlawful Activities Prevention Act and
302/307/324/326
IPC,
Police
station
Lanka, district Varanasi, Sessions Trial
No.
400
of
2006,
under
section
302/307/324/326/424/120-B
IPC
and
3/4/5/ Explosive Substance Act, Police
station G.R.P. Cantt, district Varanasi and
Sessions Trial No. 388 of 2006 under
sections 3/4/5/ Explosive Substance Act.
Police station Dashaswamedh, district
Varanasi and transfer to some other court
of sessions outside the court of Sessions,
Varanasi.

2. Heard Sri Vinay Saran, learned
counsel for the applicant and learned
A.G.A. as well as perused the whole
records, including the supplementary
affidavit filed on 22.11. 2006 which was
taken on record.

3. It is contended by the learned
counsel for the applicant that no Advocate
of district Varanasi is available to conduct
the case of the applicant according to his
choice. It was case where the public
sentiment is involved. Therefore, he is