# Syed Mehdi Hasan Nizami Revisionist v. Syed Mahfooz Hasan Nizami & Ors

- **Citation:** (2019) 4 ILRA 850
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-17
- **Case number:** Civil Revision Defective No. 67 of 2019
- **Bench:** Vivek Chaudhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/syed-mehdi-hasan-nizami-revisionist-v-syed-mahfooz-hasan-nizami-ors-44961
- **Pages:** 6

## Headnote

A. Civil Law - Code of Civil Procedure,
1908 - Waqf Act, 1995 - Section 83(9) &
Limitation Act, 1963 - Article 137 - The
petition is an application falling within
the scope of Article 137 of the 1963
Limitation Act - The alteration of the
division as well as the change in the
collocation of words in Article 137 of the
Limitation Act, 1963 compared with
Article 181 of the 1908 Limitation Act
shows that applications contemplated
under Article 137 are not applications
confined to the Code of Civil ProcedureArticle 137 of the Limitation Act is
applicable on proceedings held under
any Special Act for which no period of
limitation is provided.

In the present case, the revision is filed under
Section 83(9) of the Waqf Act for which no
period of limitation is provided in the said Act.
Article 137 of the Limitation Act would be
applicable to such revisions filed under Section
83(9) of the Waqf Act, 1995 and, therefore,
limitation for filing such revision is three years
and not three months.

Civil Revision allowed. (E-6)

List of cases cited: -

## Text

850 INDIAN LAW REPORTS ALLAHABAD SERIES
अनुज्ञापी द्वारा अपना
उत्तर उपलब्ध कराया

गया।
"

 English translation:-

"In response to the said notice,
reply was made available by the licensee.

5. Section 11(1) of the United
Provinces Excise Act, 1910, provides for
statutory appeal
in respect
of the
impugned order dated 25th October,
2019.

6. In the facts and circumstances of
the instant case, the writ petitioner - in the
absence of any demonstration of palpable
arbitrariness or mala fides or perversities
(all of which could have vitiated the due
process of law being followed) and
particularly in the absence of any
procedural impropriety, ought to have
approached
the
statutory
appellate
authority instead of rushing to the writ
Court.

7. We are, therefore, not inclined to
exercise our discretionary jurisdiction
under Article 226 of the Constitution of
India and leave it open to the writ
petitioner to proceed in accordance with
law.

8. However, we wish to observe that
in the event, statutory appeal is filed
within a period of fortnight from date, the
appellate authority is requested to dispose
of the appeal as expeditiously as possible.

9. The writ petition stands disposed
of accordingly.
----------
(2019)12 ILR A850

REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.12.2019

BEFORE
THE HON'BLE VIVEK CHAUDHARY, J.

Civil Revision Defective No. 67 of 2019

Syed Mehdi Hasan Nizami ...Revisionist
Versus
Syed Mahfooz Hasan Nizami & Ors.
 ...Opposite Parties

Counsel for the Revisionist:
Najam Zafar

Counsel for the Opposite Parties:
Q.H. Rizvi

A. Civil Law - Code of Civil Procedure,
1908 - Waqf Act, 1995 - Section 83(9) &
Limitation Act, 1963 - Article 137 - The
petition is an application falling within
the scope of Article 137 of the 1963
Limitation Act - The alteration of the
division as well as the change in the
collocation of words in Article 137 of the
Limitation Act, 1963 compared with
Article 181 of the 1908 Limitation Act
shows that applications contemplated
under Article 137 are not applications
confined to the Code of Civil ProcedureArticle 137 of the Limitation Act is
applicable on proceedings held under
any Special Act for which no period of
limitation is provided.

In the present case, the revision is filed under
Section 83(9) of the Waqf Act for which no
period of limitation is provided in the said Act.
Article 137 of the Limitation Act would be
applicable to such revisions filed under Section
83(9) of the Waqf Act, 1995 and, therefore,
limitation for filing such revision is three years
and not three months.

Civil Revision allowed. (E-6)

List of cases cited: -

1. Ganesan represented by its Power Agent G.
Rukmani Ganeshn Vs. Commissioner, Tamil
4 All. Syed Mehdi Hadan Nizami Vs. Syed Mahfooz Hadan Nizami & Ors.
851
Nadu
Hindu
Religious
and
Charitable
Endowments Board and Others reported in
(2019) 7 SCC 108.

2.
The
Kerala
State
Electricity
Board,
Trivandrum Vs. T.P. Kunhaliumma reported in
AIR 1977 Supreme Court 282.

3. Addl. Spl. Land Acquisition Officer, Bangalore Vs.
Thakoredas, Major and others reported in (1997)
11 Supreme Court Cases 412.

4. Raichurmatham Prabhakar and Another Vs.
Rawatmal Dugar reported in (2004) 4 SCC 766.

5. U.P. Sunni Central Board of Waqf and
Others Vs. Khursheed Haider and Others
reported in 1971 ALJ 1126

(Delivered by Hon'ble Vivek Chaudhary,J.)

(Order on application for Condonation
of
Delay
in
filing
Revision-C.M.
Application No.81056 of 2019)

1. Present revision is filed under
Section 83(9) of the Waqf Act, 1995.

2. Office has submitted a report
dated 16.07.2019 noting that revision is
filed beyond a period of 90 days and,
hence, the same is barred by the
provisions of Limitation Act, 1963.

3. Counsel for revisionist submits
that the revision is filed within a period of
three years and, therefore, same is
maintainable under Article 137 of the
Limitation
Act,
1963.
Counsel
for
revisionist submits that the Waqf Act is a
special Act and, therefore, it is not the
period of 90 days but the period of three
years available as per Article 137 of the
Schedule to the Limitation Act, 1963.

4. Counsel for opposite party states
that the report submitted by the registry is
correct and the Article 137 is not
applicable.

5. The law with regard to
applicability of Article 137 of the
Limitation Act to a Special Act has been
considered in number of cases by the
Supreme Court. Some of them are:-

(i) Ganesan represented by its
Power Agent G. Rukmani Ganeshn Vs.
Commissioner,
Tamil
Nadu
Hindu
Religious and Charitable Endowments
Board and Others reported in (2019) 7
SCC 108. Relevant paragraphs of the said
judgment read as follow:-

"33.
In
The
Kerala
State
Electricity Board, Trivandrum Vs. T.P.
Kunhaliumma, (1976) 4 SCC 634, this
Court
had
occasion
to
consider
applicability of Article 137 of Limitation
Act, application filed under Section 16 of
the Telegraphs Act, 1885. This Court in
the above case differing with the view
taken by the two Judge Bench in Athani?s
case held that application under Article
137 of Limitation Act is not confined to
application contemplated by or under the
C.P.C.
However,
the
application
contemplated under Telegraphs Act has to
be an application to a Court. In
paragraphs 18 and 22 following has been
laid held:

?18. The alteration of the
division as well as the change in the
collocation of words in Article 137 of the
Limitation Act, 1963 compared with
Article 181 of the 1908 Limitation Act
shows that applications contemplated
under Article 137 are not applications
confined to the Code of Civil Procedure.
In the 1908 Limitation Act there was no
division between applications in specified
cases and other applications as in the
852 INDIAN LAW REPORTS ALLAHABAD SERIES
1963 Limitation Act. The words ?any
other application? under Article 137
cannot be said on the principle of ejusdem
generis to be applications under the Civil
Procedure
Code
other
than
those
mentioned in Part I of the third division.
Any other application under Article 137
would be petition or any application under
any Act. But it has to be an application to
a court for the reason that Section 4 and 5
of the 1963 Limitation Act speak of
expiry of prescribed period when court is
closed and extension of prescribed period
if applicant or the appellant satisfies the
court that he had sufficient cause for not
preferring the appeal or making the
application during such period.

22. The conclusion we reach is
that Article 137 of the 1963 Limitation
Act will apply to any petition or
application filed under any Act to a civil
court. With respect we differ from the
view taken by the two judge bench of this
Court in Athani Municipal Council case
and hold that Article 137 of the 1963
Limitation
Actis
not
confined
to
applications contemplated by or under the
Code of Civil Procedure. The petition in
the present case was to the District Judge
as a court. The petition was one
contemplated by the Telegraph Act for
judicial decision. The petition is an
application falling within the scope of
Article 137 of the 1963 Limitation Act.?

34. In the above case since the application
under the Telegraphs Act was filed before
the Court, this Court held that Article 137
of the Limitation Act was applicable. It is
to be noticed that in the above mentioned
cases this Court held that applications
contemplated under Limitation Act are
applications to a Court but in the above
cases the Court did not refer to Section
29(2) of the Limitation Act."

(ii) The Kerala State Electricity
Board,
Trivandrum
Vs.
T.P.
Kunhaliumma reported in AIR 1977
Supreme Court 282. Relevant paragraphs
of the said judgment reads as:-

"10. In Nityananda M. Joshi
and Ors. v. Life Insurance Corporation of
India and Ors. the appellants filed
applications against the respondent under
Section 33C(2) of the Industrial Disputes
Act for computing in terms of money, the
benefit of holidays and for recovering the
amount. The Labour Court dismissed the
applications in so far as the claim was for
a period beyond three years on the
ground that the applications were barred
under Article 137 of the Limitation Act. In
Nityananda Joshi's case (supra) this
Court held as follows : Article 137
contemplates applications to ordinary
courts. Section 4 of the Limitation Act
provides for the contingency when the
prescribed period for any application
expires on a holiday and the only
contingency contemplated is "when the
court is closed". Further under Section 5
of the Limitation Act only a court is
enabled to admit an application after the
prescribed period has expired if the court
is satisfied that the applicant had
sufficient cause for not preferring the
application. The Labour Court is not a
court within the meaning of the Limitation
Act.

18.
The
alteration
of
the
division as well as the change in the
collocation of words in Article 137 of the
Limitation Act 1963 compared with
Article 181 of the 1908 Limitation Act
shows that applications contemplated
under Article 137 are not applications
confined to the CPC. In the 1908
Limitation Act there was no division
between applications in specified cases
4 All. Syed Mehdi Hadan Nizami Vs. Syed Mahfooz Hadan Nizami & Ors.
853
and other application as in the 1963
Limitation Act. The words "any other
application" under Article 137 cannot be
said on the principle of ejusdem generis
to the applications under the Civil
Procedure
Code
other
than
those
mentioned in Part I of the third division.
Any other application under Article 137
would be petition or any application
under any Act. But it has to be an
application to a court for the reason that
Section 4 and 5 of the 1963 Limitation Act
speak of expiry of prescribed period when
Court
is
closed
and
extension
of
prescribed period if applicant or the
appellant satisfies the court and he had
sufficient cause for not preferring the
appeal or making the application during
such period."

(iii) Addl. Spl. Land Acquisition
Officer, Bangalore Vs. Thakoredas,
Major and others reported in (1997) 11
Supreme Court Cases 412. Paragraph-3
of the said judgment reads as:-

"3. Admittedly, the cause of
action for seeking a reference had arisen
on the date of service of the award under
Section 12(2) of the Act. Within 90 days
from the date of the service of the notice,
the respondents made the application
requesting the Deputy Commissioner to
refer the cases to the Civil Court under
Section 18. Under the amended Subsection 3(a) of the Act, the Deputy
Commissioner shall, within 90 days from
September 1, 1970 make reference under
Section 18 to the Civil Court which he
failed to do. Consequently by operation of
Sub-section 3(b) with the expiry of the
aforestated 90 days, the cause of action
had accrued to the respondents to make
an application to the Civil Court with a
prayer to direct the Deputy Commissioner
to make a reference. There is no period of
limitation prescribed in Sub-section 3(b)
to make that application but it should be
done within limitation prescribed by the
Schedule to the Limitation Act. Since no
Article expressly prescribed the limitation
to make such application, the residuary
Article under Article 137 of the Schedule
to the Limitation Act gets attracted. Thus,
it could be seen that in the absence of any
special period of limitation prescribed by
Clause (b) of Sub-section (3) of Section
18 of the Act, the application should have
been made within three years from the
date of expiry of 90 days prescribed in
Section 18(3)(b) i.e. the date on which
cause of action had accrued to the
respondent-claimant.
Since
the
applications had been admittedly made
beyond three years, it was clearly barred
by limitation. Since, the High Court relied
upon the case in Municipal Corporation
of Athani , which has stood overruled, the
Order of the High Court is unsustainable.
The appeals are accordingly allowed, and
the application made to the Court by the
respondent stands rejected."

(iv) Raichurmatham Prabhakar and
Another Vs. Rawatmal Dugar reported in
(2004) 4 SCC 766. Paragraph 26 of the
said judgment reads as:-

"26. Where the tenant fails to
deliver possession on or before the
specified date to the landlord, the
landlord may execute the order of the
Controller by filing an execution petition
which will be governed by Rule 23 and
hence shall have to be filed within a
period of six months from the date of the
order. The application is by landlord who
is a decree-holder having an executable
order in his favour in his hands. A tenant
exercising his right of re-entry is neither a
854 INDIAN LAW REPORTS ALLAHABAD SERIES
decree-holder nor seeking execution of
any order in his favour; he is seeking
enforcement of a solemn undertaking
given by the landlord but for which the
Controller would not have made an order
under sub-section (1) of Section 12 of the
Act. The tenant's application is not an
application for execution and hence does
not attract applicability of Rule 23. It
would be governed by Article 137 of the
Limitation Act, 1963; it being an
application for which no period of
limitation is provided elsewhere and the
period of three years shall begin to run
when the right to apply accrues. The right
to apply will accrue on the date specified
by the Controller under sub-section (2) in
this behalf. The period of limitation
prescribed by Rule 23 may become otiose
if applied to tenant as the period for
completion of building by landlord may
itself be more than six months and the
period of limitation for tenant if governed
by Rule 23 would have already expired by
that time. An application filed before Rent
Controller can attract applicability of
Limitation Act, 1963 (See Mukri Gopalan
Vs. Cheppilat Puthanpurayil Aboobacker
(1995) 5 SCC 5. There are three singleJudge Bench decisions of Andhra Pradesh
High
Court,
namely,
K.S.
Hanumantharayappa Vs. A.N. Vittal Rao
1987 (1) ALT 474, K.Manik Rao and Ors.
Vs. Smt. M. Bikshapamma & Anr. 1987
(2) ALT (Notes on Cases) 15 and Navin
Chandra Vs. Smt. Prema Bai Pitti 1992(3)
ALT 181, taking the view that the
limitation for application by tenant
seeking restoration of possession to him is
governed by Rule 23. These decisions do
not lay down the correct law and are
overruled."

6. Further even this Court in case of
U.P. Sunni Central Board of Waqf and
Others Vs. Khursheed Haider and
Others reported in 1971 ALJ 1126 has
held:-

"7. It was then contented by the
learned counsel for the Board that Article
137 in the Schedule of the new Act being
a substitute for Article 181 of the
Schedule of the Old Act will bear the
same meaning and Board's application
under Section 63(5) of the Act not being
an application under the Civil Procedure
Code would not be governed by Article
137 of the New Limitation Act. It was
suggested that there is no period of
limitation prescribed by any law for an
application under Section 63(5) of the
Act. I am conscious of law as laid down
by the Supreme Court relating to Article
181 of the Schedule of the Limitation Act
of 1918 that it was not applicable to
applications under any other Act and it
was limited in its scope and only covered
applications under the Civil Procedure
Code. The reason being that the schedule
to the old Limitation Act dealt throughout
with
applications
under
the
Civil
Procedure Code and as a residuary
Article it would partake of the same
colour as if the words "under the Code"
were written it it.

8. I do not think in considering
the scope of Article 137 of the Limitation
Act of 1963 I am bound by the
interpretation or the meaning put on
Article 181 in the schedule of the old Act.
It would be found that in the third division
of the schedule of the new Limitation Act
applications under the Constitution of
India, namely, for the fitness of appeal to
the Supreme Court and for special leave
to appeal directly to the Supreme Court
also find a mention at serial Nos. 132 and
133. Such applications are not covered by
the Limitation Act which provides for an
4 All. Ahtesham Ahmad Zaidi Vs. State of U.P.
855
application
for
revision
under
the
Criminal Procedure Code 1898. In the
definition clause of the Limitation Act
1963 the word 'application' under Section
2(b) includes a petition. The intention is
manifest that motions apart from the Civil
Procedure
Code
were
contemplated
which required initiation by petitions.
Under the Civil Procedure Code motions
by petitions are not contemplated. In the
statement of Objects and Reasons when
introducing the Bill it was stated that : "A
new definition of 'application' is being
inserted so as to include a petition,
original or otherwise. The object is to
provide a period of limitation for original
applications and petitions under special
laws as there is no such provision now.
Consequential changes have been made
in the definition of 'appellant'." It appears
to me that there is no good reason why
should the residuary Article 137 of the
Schedule to the Limitation Act, 1963 be
not held to cover in its ambit applications
and objections under the special laws or
any other law and its language ought not
to be interpreted narrowly so as to keep it
confined to applications under the Civil
Procedure Code, there being no warrant
for it in the phraseology of that Article or
in the scheme of the schedule to the New
Limitation Act. Even if it be held that the
remedy for the first time was available to
the Board when Act of 1960 came into
force the application under Section 63(5)
of the Act should have been filed much
earlier and there was so justification for
the Board not to act for 6 years almost. I
am in agreement with the finding of the
court below that the application of the
Board under Section 63(5) of the Act was
time barred."

7. The above clearly shows that
Courts have already laid down the law
that Articel 137 of the Limitation Act is
applicable on proceedings held under any
Special Act for which no period of
limitation is provided. In the present case
also, the revision is filed under Section
83(9) of the Waqf Act for which no
period of limitation is provided in the said
Act. Article 137 of the Limitation Act
would be applicable to such revisions
filed under Section 83(9) of the Waqf Act,
1995 and, therefore, limitation for filing
such revision is three years and not three
months.

8. In view thereof, the objections of
the registry are set aside and the revision
is treated to be filed within time.

9.

List
this
case
in
week
commencing 03.01.2020.
----------
(2019)12 ILR A855

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.11.2019

BEFORE
THE HON'BLE RAJUL BHARGAVA, J.

Crl. Misc. Ist Bail Application No. 18724 of
2019

Ahtesham Ahmad Zaidi ...Applicant
 (In Jail Since 29.03.2019)
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Pradeep Kumar Rai, Sri Kamal Krishna

Counsel for the Opposite Party:
A.G.A., Sri Vindeshwari Prasad Gupta

A. Criminal Law - Indian Penal Code,
1860- Sections 147, 148, 149, 302, 307
& 120-B and 7 Criminal Law Amendment
Act-application-rejection-bail refused by
the court merely on the basis of the