# Surendra Mani v. State of U.P. & Ors

- **Citation:** (2025) 1 ILRA 525
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-10
- **Case number:** Writ C No. 22636 of 2024
- **Bench:** Manish Kumar Nigam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surendra-mani-v-state-of-u-p-ors-52889
- **Pages:** 18

## Headnote

526 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Land Law - Condonation of delay -
Limitation Act, 1963 - Sections 3 & 5 - Uttar
Pradesh Land Revenue Act, 1901 - Sections
200 & 201 - Delay in filing an application
can be condoned if the sufficient ground
exists, in the opinion of the Court, which
prevented the party to approach the Court
within time, even on an oral prayer made
by the party. Not necessarily in every case,
a written application has to be insisted
upon. (Para 30)

In view of Section 201 of the Act, 1901, an
ex-parte
order
can
be
recalled
on
sufficient cause being shown by either the
plaintiffs or the defendants for their nonappearance. The provisions of Section 201
are similar to those of Section 5 of the
Limitation Act except for the party has to
satisfy that there has been failure of
justice.

In the present case, the proceedings were
decided against respondent Nos. 4 to 6 ex-parte
in exercise of powers u/s 200 of the Act, 1901.
Section 201 of the Act, 1901 provides that if a
plaintiff, within 15 days from the date of order,
and if a defendant, within 15 days after the
order has been communicated to him, or after
any process for enforcing the judgment has
been executed or at any earlier period shows
good cause for his non-appearance, and
satisfies the officer making the order that there
has been a failure of justice, such officer may,
upon such terms as to costs or otherwise as he
thinks proper, revive the case and alter or
rescind the order according to the justice of the
case. In the present case, the power has been
exercised u/s 201 of the Act, 1901. (Para 31)

There is no denial of the facts as St.d by the
contesting respondents in their application for
restoration
and
the
courts
below
have
committed no illegality in recalling the ex-parte
order dated 08.06.2017 and condoning the
delay in filing the restoration application. (Para
33, 34)

Writ petition dismissed. (E-4)

Precedent followed:

## Text

_Characters 0–39,828 of 61,844. This is a partial read: ask again with offset=39828 for what follows._

1 All. Surendra Mani Vs. State of U.P. & Ors.
525

"28. Hon'ble Supreme Court has
also held in the case of Sandvic Asia Ltd.
(Supra)
that
such
a
situation
is
discriminatory in nature and causes great
prejudice to the lacs and lacs of the
assessees. In the case of Tata Chemicals
Ltd. (Supra) Hon'ble Supreme Court
observed that the Government, there being
no express statutory provision for payment
of interest on the refund of excess amount/
tax collected by the revenue; cannot shrug
off its apparent obligation to reimburse the
deductors lawful money with accrued
interest for the period of undue retention of
such monies. The State having received the
money without right and having retained
and used it, is bound to make the party
good, just as an individual would be under
the like circumstances. The obligation to
refund money received and retained
without right implies and carries with it the
right to interest. In the case of Hari
Chandra (Supra), this Court held in similar
circumstances
in
stamp
matter
that
payment of interest on the money retained
by the State Government is necessary when
the money is to be returned under the
orders of the appellate or the revisional
authority. It has not been shown by the
respondents that the law laid down in this
judgement has been reversed or modified.
In this judgement, this Court directed for
payment of interest @ 8 per cent per
annum from the date of deposit of money
till the date of actual payment.

29.
In
view
of
the
above
discussions, a general mandmus is also
issued to the State Government and all
concerned authorities to pay within three
months simple interest @ 8 per cent annum
on all amounts of refund of stamp duty etc.
under the Act to the concerned person, for
the period from the date of deposit till the
date of refund.

30.
In
result,
writ
petition
succeeds and is allowed as indicated
above.

31. Let a copy of this order be
sent by the Registrar General of this Court
to the Chief Secretary, Principal Secretary
Law and Principal Secretary, Tax and
Registration for compliance. "

29. In view of aforesaid judgment, a
further writ in the nature of Mandamus is
issued commanding the opposite parties to
ensure payment of 8% per annum simple
interest to petitioner on the amount of
deposit made by petitioner in pursuance of
impugned orders from the date of deposit
till the date of refund. Such payment of
interest and refund shall be ensured within
a period of three months from the date a
certified copy of this order is served upon
the said authorities.

30. Resultantly the petition succeeds
and is allowed. Parties to bear their own
cost.
----------
(2025) 1 ILRA 525
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.01.2025

BEFORE

THE HON'BLE MANISH KUMAR NIGAM, J.

Writ C No. 22636 of 2024

Surendra Mani ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Anil Kumar Tiwari

Counsel for the Respondents:
C.S.C.
526 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Land Law - Condonation of delay -
Limitation Act, 1963 - Sections 3 & 5 - Uttar
Pradesh Land Revenue Act, 1901 - Sections
200 & 201 - Delay in filing an application
can be condoned if the sufficient ground
exists, in the opinion of the Court, which
prevented the party to approach the Court
within time, even on an oral prayer made
by the party. Not necessarily in every case,
a written application has to be insisted
upon. (Para 30)

In view of Section 201 of the Act, 1901, an
ex-parte
order
can
be
recalled
on
sufficient cause being shown by either the
plaintiffs or the defendants for their nonappearance. The provisions of Section 201
are similar to those of Section 5 of the
Limitation Act except for the party has to
satisfy that there has been failure of
justice.

In the present case, the proceedings were
decided against respondent Nos. 4 to 6 ex-parte
in exercise of powers u/s 200 of the Act, 1901.
Section 201 of the Act, 1901 provides that if a
plaintiff, within 15 days from the date of order,
and if a defendant, within 15 days after the
order has been communicated to him, or after
any process for enforcing the judgment has
been executed or at any earlier period shows
good cause for his non-appearance, and
satisfies the officer making the order that there
has been a failure of justice, such officer may,
upon such terms as to costs or otherwise as he
thinks proper, revive the case and alter or
rescind the order according to the justice of the
case. In the present case, the power has been
exercised u/s 201 of the Act, 1901. (Para 31)

There is no denial of the facts as St.d by the
contesting respondents in their application for
restoration
and
the
courts
below
have
committed no illegality in recalling the ex-parte
order dated 08.06.2017 and condoning the
delay in filing the restoration application. (Para
33, 34)

Writ petition dismissed. (E-4)

Precedent followed:

1. Markland Pvt. Ltd. & ors.Vs St. of Guj., AIR
1989 Guj 44 (Para 13)

2.
Patel
Purshottamdas
Motilal
Vs
Patel
Chhotabhai Motibhai, 1979 (1) GLR 918 (Para
14)

3. Kulsoomun Nissa & ors.Vs Noor Mohammad &
ors., AIR 1936 All 666 (Para 15)

4. Shakuntala Devi Vs Banwari Lal & ors., AIR
1977 All 551 (Para 16)

5. Rajiv Lochan Pandey Vs Madan Gopal Sharma
& ors., AIR 1989 All 45 (Para 17)

6. Virendra Kumar Singhai Vs Murari Lal Singhal
& ors., 1993 AWC 782 All (Para 18)

7. Savitri Devi Vs D.D.C. & ors., 2014 (122) RD
205 (Para 20)

8. Bhagmal & ors.Vs Kunwari Lal & ors., (2010)
12 SCC 159 (Para 21)

9. Dwarika Prasad (D) Thr. LRs. Vs Prithvi Raj
Singh, 2024 INSC 1030 decided on 20.12.2024
(Para 22)

10. Firm Kaura Mai Bishan Dass Vs Firma Mathra
Dass Atama Ram & ors., AIR 1959 Punj 646
(Para 23)

11. Mehar Singh Vs Dhurender Singh & ors., AIR
1993 P&H 23; (Para 23)

12. Meghraj Vs Jesraj Kasturjee, AIR 1975
Madras 137; (Para 23)

13. Nand Singh Vs ESt. Officer & anr., AIR 1993
Delhi 38; (Para 23)

14. Suresh Kumar & ors. Vs Firm Kurban
Hussain Taiyab Ali & ors., AIR 1996 MP 151
(Para 23)

15. Kashinath Mondal Vs St. of W.B., 2007 SCC
on-line Calcutta 739 (Para 23)

16. St. of M.P. & anr. Vs Pradeep Kumar & anr.,
(2000) 7 SCC 372 (Para 28)
1 All. Surendra Mani Vs. State of U.P. & Ors.
527
17. Jai Pratap Singh & ors.Vs Board of Revenue
& ors., 2006 (10) ADJ 196 (Para 32)

Precedent distinguished:

1. Ram Prakash Vs Deputy Director of
Consolidation, 2022 (3) ADJ 1 (Para 4)

2. Chander Bhan Vs Bal Mukund & ors., AIR
1972 SC 2125 (Para 4)

(Delivered by Hon'ble Manish Kumar
Nigam, J.)

1. Heard Sri Anil Kumar Tiwari,
learned counsel for the petitioner and
learned Standing Counsel for the Staterespondents.

2. This writ petition has been filed for
the following reliefs:-

"(A). Issue a writ, order or
direction in the nature of certiorari
quashing
the
impugned
order
dated
2.6.2023 and 31.1.2024 passed by Court of
Naib Tehsildar Sadar in Case No. 9426 of
2020 Deoria as well as order dated
28.2.2024
passed
by
Court
of
Commissioner
Gorakhpur
Region
Gorakhpur in Revision No. 926/23, which
is annexed as Annexure No. 1, 2 and 3 to
this writ petition.

(B). Issue a writ, order or
direction in the nature of Mandamus
commanding the respondent and directing
them (respondent No. 3) to direct the
parties for maintain status quo on the spot,
during the pendncy of the case."

3. Brief facts of the case are that a
dispute arose as to succession of one Janaki
Devi, widow of Hari Nandan. Smt. Janaki
Devi executed a Will dated 29.10.1993 in
favour of the petitioner. The predecessor in
interest of respondent Nos. 4 to 6 claimed
the property in dispute on the basis of Will
executed by Hari Nandan, husband of
Janaki Devi. In this regard, Mutation Case
No. 427 of 1994 was filed by the
predecessor in interest of respondent Nos. 4
to 6. The aforementioned case was
dismissed in default by order dated
08.06.2017 passed by Naib Tehsildar,
Tehsil- Sadar, District Deoria-respondent
No. 3. During the pendency of the aforesaid
mutation case Damadi- predecessor in
interest of respondent Nos. 4 to 6 died and
respondent Nos. 4 to 6 were substituted in
his place. Respondent Nos. 4 to 6 moved an
application
dated
26.02.2020
before
respondent No. 3 for recalling the order
dated 08.06.2017 passed by respondent No.
3 dismissing the case in default. Copy of
the application is annexed as Annexure No.
7 to the writ petition. The petitioner filed
his objections on 03.03.2022 to the
restoration/ recall application filed by
respondent Nos. 4 to 6 pleading inter alia
that the said application is not maintainable
as there was no application filed by
respondent Nos. 4 to 6 under Section 5 of
the Limitation Act for condonation of delay
in filing the restoration application. The
objections filed by the petitioner are
annexed as Annexure No. 8 to the writ
petition. Respondent No. 3 vide its order
dated 02.06.2023 after considering the
objections filed by the petitioner, condoned
the
delay
in
filing
the
restoration
application. Copy of the order dated
02.06.2023 is annexed as Annexure No. 1
to the writ petition. Against the order dated
02.06.2023, the petitioner filed a revision
before
the
Commissioner,
Gorakhpur
Region,
Gorakhpur-respondent
No.
2
which has been dismissed by order dated
28.02.2024. Copy of the order has been
annexed as Annexure No. 3 to the writ
petition. In the meantime, restoration
application filed by respondent Nos. 4 to 6
528 INDIAN LAW REPORTS ALLAHABAD SERIES
was
also
allowed
by
order
dated
31.01.2024. Copy of the order dated
31.01.2024 is annexed as Annexure No. 2
to the writ petition. Hence the present writ
petition.

4. Counsel for the petitioner contended
that there was no separate application filed
by the petitioner under Section 5 of the
Limitation Act for condoning the delay in
filing
the
restoration
application
for
recalling the order dated 08.06.2017 and
therefore, respondent No. 3 has erroneously
condoned the delay in filing the application
after considering the objections of the
petitioner and the said order is without
jurisdiction, in view of Section 3 of the
Limitation Act. It has been further
contended by counsel for the petitioner that
under the U.P. Land Revenue Act, 1901
(hereinafter referred as " the Act, 1901"),
there is no provision by which the
provisions of Limitation Act were made
applicable to the proceedings under the
Act, 1901 and therefore, also the delay
could
not
have
been
condoned
by
respondent
No.
3.
Admittedly,
the
proceedings were under the provisions of
the
Act,
1901.
In
support
of
his
submissions
learned
counsel
for
the
petitioner relied upon the judgment of the
Division Bench of this Court in case of
Ram Prakash Vs. Deputy Director of
Consolidation,
Hardoi
and
others;
reported in 2022 (3) ADJ 1 and also the
judgment of the Hon'ble Supreme Court in
case Chander Bhan Vs. Bal Mukund and
anothers; reported in AIR 1972 SC 2125.

5. Per contra, learned Standing
Counsel submitted that Section 5 of the
Limitation Act gives power to the court to
condone the delay, if any, and extend the
limitation. There is no requirement of filing
a separate application for condoning the
delay and the same can even be condoned
on an oral prayer made by a party. It has
also been contended by learned Standing
Counsel that even assuming that provisions
of Limitation Act are not applicable to the
proceedings under the Act, 1901, since the
order dated 08.06.2017 was an ex-parte
order, the same could have been recalled
under Section 201 of the Act, 1901.

6.
Before
considering
the
rival
submissions, it would be appropriate to
look into the relevant provisions of law.

7. Section 3 of the Limitation Act
provides bar of limitation. Section 3 of the
Limitation Act, 1963 is quoted 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 been set up as a
defence."

8. Section 5 of the Limitation Act
provides for extension of prescribed period
in certain cases and the same is quoted as
under:-

"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, 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.

Explanation.-The fact that the
appellant or the applicant was misled by
any order, practice or judgment of the High
1 All. Surendra Mani Vs. State of U.P. & Ors.
529
Court in ascertaining or computing the
prescribed period may be sufficient cause
within the meaning of this section."

9. Section 200 of U.P. Land Revenue
Act, 1901 provides for hearing in absence
of party. Section 200 of the Act, 1901 is
quoted as under:-

"200. Hearing in absence of
party. - Whenever any party to such
proceeding neglects to attend on the day
specified in the summons or on any day to
which the case may have been postponed,
the Court may dismiss the case for default
or may hear and determine it ex parte."

10. Section 201 of U.P. Land Revenue
Act, 1901 provides for re-hearing on proof
of good cause for non-appearance and the
same is quoted as under:-

"201. No appeal from orders
passed ex parte or by default. -No appeal
shall lie from an order passed under
Section 200 ex parte or by default.

Re-hearing on proof of good
cause for non-appearance. - But in all
such cases, if the party against whom
judgment has been given appears either in
person or by agent (if a plaintiff, within
fifteen days from the date of such order,
and if a defendant, within fifteen days after
such order has been communicated to him,
or after any process for enforcing the
judgment has been executed or at any
earlier period), and shows good cause for
his non-appearance, and satisfies the
officer making the order that there has
been a failure of justice, such officer may,
upon such terms as to costs or otherwise as
he thinks proper, revive the case and alter
or rescind the order according to the
justice of the case:

Order not to be altered without
summons to adverse party. - Provided that
no such order shall be reversed or altered
without previously summoning the party in
whose favour judgment has been given to
appear and be heard in support of it."

11. Section 5 of Limitation Act
provides that an appeal or an application
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. Section 5 in
fact has been incorporated to save those
innocent
litigants
who
either
under
misapprehension or miscalculation, under
bona fide belief or because of the inevitable
circumstances
could
not
bring
the
proceedings before the Court within
limitation. It is the power which is given to
the Court to condone delay and extend the
limitation. It is for the Court to satisfy itself
that the sufficient cause exists or not to
condone the delay. If the Court on the facts
presented before it comes to the conclusion
that the delay deserves to be condoned then
the Court is duty bound to save the party
from unnecessary sufferance's and would
permit the appellant to go into the arena of
their legal rights of the matter after
removing the hurdle of limitation.

12. The question whether Section 3 of
Indian Limitation Act would control and
govern the powers given to the Court under
Section 5 of Limitation Act would not be of
importance. Section 3 merely provides that
if the proceedings are not instituted within
limitation, the same are liable to be
dismissed even if the limitation has not
been set up as a defence. But Section 5
gives the powers to the Court to extend the
period of limitation if there is a sufficient
cause for not drawing the proceedings well
530 INDIAN LAW REPORTS ALLAHABAD SERIES
within limitation. In fact Section 5 is in
nature of proviso to Section 3 and would
dilute the rigour of Section 3.

13. In case of Markland Pvt. Ltd.
and Ors. Vs. State of Gujarat; reported in
AIR 1989 Guj 44, the Gujarat High Court
held that Section 5 of the Limitation Act
only requires the appellant or the applicant
to satisfy the court that he had sufficient
cause for not preferring the appeal or filing
the revision within the prescribed period.
This section does not require that there
should be a written application for
condonation of delay. Paragraph No. 9 of
the judgment in case of Markland Pvt. Ltd.
and Ors. Vs. State of Gujarat (supra) is
quoted as under:-

"9. The learned counsel for the
petitioners submitted that the revision
application as provided under S. 9 of the
Act is required to be filed within a period of
sixty days from the date of the order under
challenge. In this case the revision
application is filed after a period of about
ten months from the prescribed date of
limitation. As submitted by the learned
counsel for the petitioners the Tribunal
may condone the delay, but in the instant
case
there
was
no
application
for
condonation of delay. Hence, in absence of
application for condonation of delay, the
delay could not have been condoned the
contention is misconceived. There is no
dispute with regard to the fact that
provisions of section 5 of the Limitation Act
do apply to these proceedings. Section 5 of
the Limitation Act only requires the
appellant or the applicant to satisfy the
Court that he had sufficient cause for not
preferring the appeal or making the
revision application within such period.
The section does not require that There
should be a written application for
condonation of delay. In fact this is the
view which has been taken by this Court in
the case of Naran Anneppa Shethi v.
Jayantilal Chenille Shah, MANU/GJ/0067/
1987: AIR 1987 Guj 205 and in the case of
Patel Purshottamdas Motilal v. Patel
Chhotabhai Motibhai, (1979) 20 GLR 918.
Therefore, the contention that the Tribunal
ought not to have condoned the delay in
absence
of
written
application
for
condonation of delay has no merit and the
same is required to be rejected."

14. In case of Patel Purshottamdas
Motilal v. Patel Chhotabhai Motibhai,
reported in 1979 (1) GLR 918, in
paragraph No. 6, the Gujarat High Court
has held as under:-

"6. It has been argued by Mr.
Majmudar
that
no
application
for
condoning delay was made by the plaintiff.
Ordinarily, a party who wants to avail
himself of the benefit of Section 5 of the
Limitation Act makes an application setting
out grounds which, in his opinion,
constitute 'sufficient cause' and praying for
condonation of delay and for admitting to
hearing an appeal or application which is
otherwise time barred. In the instant case,
the plaintiff did not make such an
application. Was that omission on the part
of the plaintiff fatal to his case? In our
opinion,
though
an
application
for
condoning delay is ordinarily necessary, it
is not a mandatory requirement of law. In a
given case, even on an oral application, the
Court has got the jurisdiction to condone
delay if the facts and circumstances of the
case so warrant. In the instant case, several
orders which the -learned trial Judge made
granting time to the plaintiff to file his
objections
themselves
constituted
a
'sufficient cause' and, therefore, it could not
be said that the oral application made by
1 All. Surendra Mani Vs. State of U.P. & Ors.
531
the plaintiff to take his objections on record
which otherwise appeared to be timebarred was not maintainable or suffered
from a fatal omission to state the 'sufficient
cause'. The learned trial Judge was,
therefore, in error in dismissing the
plaintiff's application in limine on the
ground that it was barred by time. He
ought to have admitted it to file and heard
it on merits and decided it."

15. This Court in case of Kulsoomun
Nissa and Ors. Vs. Noor Mohammad
and Ors.; reported in AIR 1936 All 666,
held as under:-

"The first ground on which the
appeal has been dismissed by the lower
appellate Court is that the plaintiffs had not
made any formal application for an
extension
of
time
under
Section
5,
Limitation Act, and that, therefore, their
appeal against Hakim Shyam Sundar Lal
was beyond time. In our opinion the Court
below has erred in exercising its discretion
in this matter. The reason why Hakim
Shyam Sundar Lal's name was omitted
from the names of the respondents
obviously was that his name did not find a
place in the decree. He was impleaded
later on within 30 days of the substitution
of his name. We think that the lower Court
should have allowed the defendant to get
round the technical objection of the
absence of a formal application for
extension of time." (Paragraph No. 1)

16. In case of Shakuntala Devi Vs.
Banwari Lal and Ors., reported in AIR
1977 All 551, this Court has taken a view
that formal application under Section 5 of
the Limitation Act is not necessary to
enable the Court to decide whether delay
deserves to be condoned or not. Paragraph
No. 5 of the judgment in case of Shakuntala
Devi Vs. Banwari Lal and Ors. (supra) is
quoted as under:-

"5. Learned counsel appearing
on
behalf
of
the
applicant
further
contended
that
merely
because
the
application dated 18th March, 1964
praying for setting aside the abatement did
not contain a formal prayer for condoning
the delay did not bear the court from
treating it as an application under Section
5, Limitation Act and from taking into
account the relevant material on record for
the purpose of deciding as to whether the
applicant
had
sufficient
cause
for
condonation of delay in making the
application
for
substitution
and
for
applying for setting aside the abatement of
the appeal. In support of the contention
that a formal application under Section 5 of
the Limitation Act is not necessary to
enable the court to decide whether delay
deserves to be condoned or not learned
counsel appearing on behalf of the
applicant has relied on the decision of the
Punjab High Court in Firm Kaura Mal
Bishan Das v. Firm Mathra Dass Atma
Ram, Ahmedabad MANU/PH/0205/1959
wherein it was held (at p. 646)--

"Merely because there was no
written application filed by the appellant is
hardly a sufficient ground for refusing him
the relief, if he is otherwise entitled to it.
Procedure is meant for advancing and not
for obstructing the cause of justice; and if
the entire material is on the record, it
cannot promote the ends of justice, if that
material is ignored and the relief refused to
the appellant, merely because he had not
claimed it by means of a formal application
in writing or that a formal affidavit was not
filed. The language of Section 5 also does
not provide that an application in writing
must be filed before relief under the said
provision can be granted."
532 INDIAN LAW REPORTS ALLAHABAD SERIES

In the above-mentioned decision,
reliance was placed on the Division Bench
decision of this Court in Mt. Kulsoomun
Nissa
v.
Noor
Mohammad
MANU/UP/0237/1936 :AIR 1936 All 666.
The submission made is supported by two
decisions
cited
above
and
must
consequently prevail."

17. In case of Rajiv Lochan Pandey
Vs. Madan Gopal Sharma and Ors;
reported in AIR 1989 All 45, this Court
held that for condonation of delay, not in
all cases, it is always necessary to move an
application
under
Section
5
of
the
Limitation Act. Paragraph No. 26 of the
judgment in case of Rajiv Lochan Pandey
Vs. Madan Gopal Sharma(supra) is quoted
as under:-

"26. Sri S. S. Tyagi urged that
since the petitioner had knowledge, and
there was no application for condonation
of delay, therefore, the trial Court did not
commit any mistake in rejecting the
application under Order IX, Rule 13 of the
Code. The petitioner had stated clearly in
the affidavit, whether that was relied or not
that he did not have the knowledge of the
date of hearing of the suit and if that is
ultimately
found
established.
the
application filed by him under Order IX,
Rule 13 of the Code could not be held to be
time barred. Similarly, for condonation of
delay, not in all the cases, it is always
necessary to move an application under
Section 5 of the Limitation Act. But if from
the affidavit of a particular case, the delay
is found explained fully, the Court has
ample power to condone the same."

18. In case of Virendra Kumar
Singhai Vs. Murari Lal Singhal and Ors;
reported in 1993 AWC 782 All, this Court in
Paragraph No. 5 has held as under:-

"5. So far as the first submission of
the learned counsel for the applicant is
concerned, I have perused the application
dated 29-1-1990 and the supporting affidavit
filed be the Plaintiff-opposite party for
substituting the widow and the two daughters
of the deceased defendant. The Plaintiff had
given reasons for not filing the application
within the statutory period. It has been stated
in paragraph 7 of the affidavit that the courts
were closed from 28-7-1989 to 10-12-1989
due to lawyers strike and since the Plaintiff
was not aware of the addresses of the
daughters of the deceased Defendant prior to
27-1-1920 the application could not be filed
before 29-1-1990 which was the date fixed in
the case after the strike was over. In
paragraph 8 of the affidavit it was prayed
that the delay in filing the application
deserved to be condoned. It is apparent,
therefore, that the prayer for condoning the
delay was there in the application for
substitution filed on 29-1-90, I am of the view
that in the facts and circumstances of the case
no separate application under Section 5 of
the Limitation Act was required.........."

19. In the present case also in the
restoration application, which is annexed as
Annexure No. 7 to the writ application, in
paragraph No. 5, the respondents have
claimed benefit of Section 5 of the Limitation
Act.

20. Again in case of Savitri Devi Vs.
D.D.C. and others; reported in 2014 (122)
RD 205, this Court was of the view that the
delay can be condoned on oral request
made by a party. Paragraph No. 5 of the
judgment in case of Savitri Devi Vs.
D.D.C. and others (supra) is quoted as
under:-

"5. So far as the arguments of the
counsel for the petitioner that the delay has
1 All. Surendra Mani Vs. State of U.P. & Ors.
533
been wrongly condoned is concerned, in
this respect it is stated that the Settlement
Officer, Consolidation in his order dated
6.9.2010 has specifically condoned the
delay. The delay could be condoned even
on the oral request as held by the Supreme
Court in L/Naik Mahabir Singh Vs. Chief
of Army Staff, (Suppl.) SCC 89. In the
circumstances that respondent No. 3 had
not been issued any notice and she did not
enter into the compromise before the
Assistant Consolidation Officer, the order
being ex parte, the delay has rightly been
condoned. In any case it is not expected
from
the
Court
having
supervisory
jurisdiction to interfere with the discretion
of the Court below in condoning the
delay."

21. The Hon'ble Supreme Court in
case of Bhagmal and others Vs. Kunwar
Lal and others; reported in (2010) 12 SCC
159, after considering the facts of the case
held that High Court should not have been
taken a hyper-technical view that no
separate
application
was
filed
under
Section 5 of the Limitation Act and it
should not have set aside the order passed
by the appellate court. Paragraph Nos. 10,
11, 12 and 13 of the judgment in case of
Bhagmal and others Vs. Kunwar Lal and
others (supra) are quoted 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
appellant-defendants before the trial court
in support of their application under Order
9 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 ex
parte 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 9 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 exparte 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 9 Rule 13 merely on the basis
534 INDIAN LAW REPORTS ALLAHABAD SERIES
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 exparte 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
appellant-defendants for making the Order
9 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 9 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
conclusion that appellant-defendants were
fully justified in filing the application under
Order 9 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
ex-parte 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
9 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........"

22.
Very
recently,
the
Hon'ble
Supreme Court in case of Dwarika Prasad
(D) Thr. LRs. Vs. Prithvi Raj Singh;
reported in 2024 INSC 1030 decided on
20.12.2024 relied upon the judgment of
Supreme Court in case Bhagmal and others
Vs. Kunwar Lal and others (supra) and held
in paragraph No. 12 as under:-

"12. From the above cases, it is
clear that there was no need to file a
separate application for condonation of
delay in the present case as well. The High
Court has erred in taking a hyper technical
view and concluding that there was
violation of mandatory provision of law.
Endorsing such a view would effectively
mean ignoring the purpose of judicial
procedure. The procedure cannot stand in
the way of achieving just and fair outcome.
In the present case, the Appellant acted
bona fide and diligently. His conduct does
not violate any rule of law."

23. Similar view has been taken by
learned Judges of Punjab and Haryana High
Court, Madras High Court, Delhi High Court,
Madhya Pradesh High Court and Calcutta
High Court in cases of Firm Kaura Mai
Bishan Dass Vs. Firma Mathra Dass Atama
Ram and others reported in AIR 1959 Punj
646; Mehar Singh Vs. Dhurender Singh
and others reported in AIR 1993 P&H 23;
Meghraj Vs. Jesraj Kasturjee reported in
AIR 1975 Madras 137; Nand Singh Vs.
Estate Officer and another reported in AIR
1993 Delhi 38; Suresh Kumar and others
Vs. Firm Kurban Hussain Taiyab Ali and
others reported in AIR 1996 MP 151 and
Kashinath Mondal Vs. State of West
Bengal reported in 2007 SCC on-line
Calcutta 739.

24. In view of the law laid down by
Hon'ble Supreme Court, this Court and
1 All. Surendra Mani Vs. State of U.P. & Ors.
535
various other High Courts, I am also of the
opinion that for condonation of delay under
Section 5 of the Limitation Act, a formal
application would not be required, if the
facts presented before the court satisfies the
judicial consciousness of the Court that the
applicant before it was prevented for
sufficient cause in bringing the proceedings
well within limitation. In case, instead of
moving
a
formal
application
for
condonation of delay, averments has been
made by a party relating to sufficient cause
for not initiating the proceedings well
within time in the application or memo of
appeal or revision supported by an affidavit
with a prayer made therein for condonation
of delay will not be fatal for want of
separate application for condonation of
delay. If the Court is of the opinion that in
absence of formal application, the delay
cannot be condoned then, it is always the
duty of the Court to give an opportunity to
the appellant before it to move an
application explaining the cause for delay
and seek condonation under Section 5 of
the Limitation Act. The applicant must get
proper
opportunity
to
explain
the
circumstances which prevented it from
drawing proceedings well within time. In
this view, I am also supported by judgment
of Madras High Court in case of, Meghraj
Vs. Jesraj Kasturjee (supra) where the
learned Singh Judge of that Court has
observed in paragraph No. 4 of the
judgment as under:-

"4.......The consensus, therefore,
appears to be this. If under explainable
circumstances an appeal or an application
is filed in court, but without a formal
application or a written application for
excusing the delay in the presentation of
the same, then the court should circumvent
technicality and afford a reasonable
opportunity to the aggrieved party to mend
matters. Otherwise, it would lead to
miscarriage of justice."

25. In the present case, from the
perusal of the restoration application, it is
apparent that a prayer has been made in
paragraph No. 5 for condonation of delay
and the reasons have been explained in
paragraph Nos. 4 and 5 of the aforesaid
application and therefore, the contention of
learned counsel for the petitioner that
respondent No. 3 could not have condoned
the delay in absence of a formal application
for condoning the delay made by the
contesting respondents under Section 5 of
the Limitation Act, is misconceived. So far
as judgment relied upon by counsel for the
petitioner in case of Ram Prakash Vs.
Deputy Director of Consolidation, Hardoi
and others (supra) is concerned, in the said
judgment following question was referred
to the Division Bench "if an order has
been challenged before the consolidation
authority is barred by the period of
limitation as provided under the statue
(in the present case before the appellate
authority/
Settlement
Officer,
Consolidation- 1, Hardoi) along with an
application for condonation of delay then
in that circumstances whether the
application for condonation of delay
under Section 5 of the Limitation Act
should be decided first or the same can
be decided along with merit of the case?"
The Court was not called upon to consider
the question as to whether the delay cannot
be condoned unless, there is a formal
application moved by the party under
Section 5 of the Limitation Act for
condoning the delay rather the Court was
considering the question as to whether the
application moved under Section 5 of the
Limitation Act should be considered first
and thereafter, the case may be heard on
merits or both the things can be done
536 INDIAN LAW REPORTS ALLAHABAD SERIES
simultaneously. The Division Bench of this
Court answered the questions referred
above in paragraph No. 22 of jugement of
Ram Prakash Vs. Deputy Director of
Consolidation, Hardoi and others (supra),
which is quoted as under:-

"22. In view of the aforesaid
discussion,
we
answer
the
question
referred to the Division Bench that an
application seeking condonation of delay
has to be decided first before the appeal is
taken up for hearing on merits. However,
it can be on the same day and there is no
requirement of adjourning the hearing of
appeal on merits after acceptance of the
application
seeking
condonation
of
delay."

26. In case of Chander Bhan Vs. Bal
Mukund (supra), the Lordships of the
Supreme Court have not declared the law to
the effect that oral prayer regarding
condonation of delay under Section 5 of the
Limitation Act cannot be entertained by a
Court in the absence of a written
application. Thus, the case law relied upon
by the learned counsel for the petitioner did
not support the contention of the petitioner
that delay cannot be condoned except for a
separate written application moved under
Section 5 of the Limitation Act for
condoning the same. Section 5 of the
Limitation Act do not in other words
requires that a written application be
moved for condoning the delay on
sufficient cause being shown by the
applicant.

27. Order 41 Rule 3-A of the Code of
Civil Procedure as amended in 1976
provides as under:-

"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 the 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."

28. The Supreme Court in Case of State
of Madhya Pradesh and another Vs.
Pradeep Kumar and another; reported in
(2000) 7 SCC 372 while interpreting the
provisions of sub-Rule 1 of Rule 3-A of
Order 41 C.P.C.