# Vegraj v. D.D.C./Additional Collector, Bareilly and others

- **Citation:** (2004) 2 ILRA 633
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-07-05
- **Bench:** S.N. Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vegraj-v-d-d-c-additional-collector-bareilly-and-others-40288
- **Pages:** 5

## Headnote

Sri W.H. Khan
Sri A.P. Srivastava
Sri Shyam Lal
Sri A.K. Srivastava
Sri V.K. Singh
S.C.

Limitation Act, 1963- S.5-Second AppealAbatement- Death of Respondent no. 5
during
appeal-
Delay
in
filing
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
634
substitution application-Impugned order
abating Second Appeal by Board of
Revenue- Writ against-Held, delay was
not
deliberate-No
delatory
tactics-
sufficience cause shown-application to
be construed liberally-Delay
due to
ignorance of death- Impugned order set
aside- Delay condoned.

As stated supra, the petitioner had
entered the arena after the death of his
father,
and
it
would
not
be
too
presumptuous to say that quite often
than not, there is noticeable gap of
communication between father and son
in a traditional family or often fathers
are averse to involve any family member
and the net result remains that it takes
time for a son to pick the thread and
there is bound to occur some lapse
before he matures into doing things
adroitly with the passage of time. In the
circumstances, if delay has happened, it
was due to ignorance simplicitor and
cannot be ascribed to any overt or covert
or as a part of strategy to protract final
outcome in the matter.

Para 6

In the entire perspective, it does not
appear that delay was deliberate or
petitioner or his father had at all
resorted to temporizing procedure or
dilatory tactics. Rather it would appear
that it was occasioned by ignorance
simplicitor. In the circumstances, it
would be too harsh for the petitioner in
case, door of justice is shut against him
and it would foreclose all options for him
to put forth his cause.

Para 7
Case law discussed:
AIR 1969 SC 575
AIR 1972 SC 749
(1998) 7 SCC 123
(1982) 1 SCC 476

## Text

http://www.allahabadhighcourt.nic.in
2 All] Vegraj V. D.D.C./Additional Collector, Bareilly and others
633
counsel for the parties and perused the
record.

7. While reversing the judgments of
subordinate
Consolidation
authorities,
Deputy
Director
of
Consolidation
considered the judgments in totality and
recorded his finding about illegalities
committed by them. I do not agree with
the argument of learned counsel for
petitioner
that
Deputy
Director
of
Consolidation
did
not
consider
the
judgments of subordinate Consolidation
authorities at the time of passing the final
orders by which he reversed judgments of
subordinate Consolidation authorities.

8. Deputy Director of Consolidation
has rightly appreciated admissible oral
and documentary evidence and rightly
recorded a finding of fact that no
remarriage has taken place. Kunwar Sen
husband of Opp. Party no.2 died on
236.1980. Litigation between petitionerVegraj and Tarawati-Opp. Party no.2
started in 1981 in Civil, Revenue and
Criminal Courts. Kutumb Register of
1988, Voter list of year 1988 and other
documents are of subsequent to beginning
of litigation between the parties and were
rightly not relied upon by Deputy Director
of Consolidation. For this purpose he has
also
recorded
reasons
that
those
documents were wrongly and illegally
considered by subordinate consolidation
authorities to arrive at a conclusion of
remarriage. I asked from learned counsel
for petitioner the date of remarriage of
Mst. Tarawati, but he could not show the
date of remarriage in the pleadings of
petitioner.

9. The judgments of Consolidation
Officer
and
Settlement
Officer,
Consolidation were also based on some
irrelevant and inadmissible documentary
evidence, filed by petitioner, pertaining to
the period during pendency of the
litigation.
Deputy
Director
of
Consolidation is fully competent to
interfere with the findings arrived at by
subordinate
consolidation
authorities
relying upon such evidence.

10. Learned counsel for petitioner
could not show any perversity in any of
the findings recorded by the Deputy
Director of Consolidation.

11. Writ petition lacks merits and is
accordingly dismissed.

There shall be no order as to cost.
Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 5.7.2004

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Writ Petition No. 43189 Of
1993

Shiv Narain Singh

...Petitioner
Versus
Board of Revenue U.P. Allahabad and
others

...Respondents

Counsel for the Petitioner:
Sri V.K. Singh
Sri M.N. Singh

Counsel for the Respondents:
Sri W.H. Khan
Sri A.P. Srivastava
Sri Shyam Lal
Sri A.K. Srivastava
Sri V.K. Singh
S.C.

Limitation Act, 1963- S.5-Second AppealAbatement- Death of Respondent no. 5
during
appeal-
Delay
in
filing
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
634
substitution application-Impugned order
abating Second Appeal by Board of
Revenue- Writ against-Held, delay was
not
deliberate-No
delatory
tactics-
sufficience cause shown-application to
be construed liberally-Delay
due to
ignorance of death- Impugned order set
aside- Delay condoned.

As stated supra, the petitioner had
entered the arena after the death of his
father,
and
it
would
not
be
too
presumptuous to say that quite often
than not, there is noticeable gap of
communication between father and son
in a traditional family or often fathers
are averse to involve any family member
and the net result remains that it takes
time for a son to pick the thread and
there is bound to occur some lapse
before he matures into doing things
adroitly with the passage of time. In the
circumstances, if delay has happened, it
was due to ignorance simplicitor and
cannot be ascribed to any overt or covert
or as a part of strategy to protract final
outcome in the matter.

Para 6

In the entire perspective, it does not
appear that delay was deliberate or
petitioner or his father had at all
resorted to temporizing procedure or
dilatory tactics. Rather it would appear
that it was occasioned by ignorance
simplicitor. In the circumstances, it
would be too harsh for the petitioner in
case, door of justice is shut against him
and it would foreclose all options for him
to put forth his cause.

Para 7
Case law discussed:
AIR 1969 SC 575
AIR 1972 SC 749
(1998) 7 SCC 123
(1982) 1 SCC 476

(Delivered by Hon'ble S.N. Srivastava, J.)

1. Dismissal of second Appeal as
having abated for not filing substitution
application
seeking
substitution
of
respondents 7 and 1 in the array of parties
within the statutory period, has been the
causative factor leading to filing of the
present petition challenging the judgment
dated 2.11.1993 passed by Board of
Revenue.

2. In the suit instituted by
respondents 4 and 5 under section 229
B/176 of the U.P.Z.A. & L.R. Act relief
sought was for declaring themselves to be
co-bhumidhars with defendant no.1 of
Schedule A and co-sirdars of Schedule B
and further claiming that their 2/5th share
be separated. The decision rendered by
Asstt. Collector, Ist Class Varanasi held
Bhonu, father of the petitioner to be sole
sirdar of plot no. 31/1 and Lurkhur to be
the sole Sirdar of plot no. 28/2 and for the
rest of the land suit was decreed. The
appeal preferred against the said decision
ended up in dismissal and consequently, a
second appeal was filed by Bhonu, father
of the petitioner before Board of Revenue.
During the pendency of appeal, one Sonu
Ram respondentno.1 in the second appeal
died on 5.7.1989. Bhonu also died during
the pendency of appeal on 3.10.1991 and
substitution application was moved by the
petitioner on 27.11.991. It is claimed in
the writ petition that Triloki arrayed as
respondent no. 7 had died during
pendency of appeal but no substitution
application was moved. Subsequently
Lurkhur respondent no.4 in the appeal
sought abatement of appeal by means of
application-dated
30.11.1992
on
the
ground of want of steps in the matter of
substitution pursuant to the death of
Triloki as a consequence of which, Board
of Revenue passed the impugned order in
the second appeal thereby abating the
second appeal.

3. I have heard the learned counsel
for the parties and also perused the record
and the impugned order.

4. Learned counsel appearing for the
http://www.allahabadhighcourt.nic.in
2 All] Shiv Narain Singh V. Board of Revenue U.P., Allahabad and others
635
petitioner canvassed that neither Bhonu
nor the petitioner gained knowledge of the
death of Triloki and further copy of the
application made by Lurkhur before the
Board of Revenue on 30.11.1992 was
never served either to the petitioner or his
counsel and the petitioner became aware
of the death on 2.11.1993 on which date
the impugned order was passed. It was
further canvassed by the learned counsel
that
Triloki
who
was
arrayed
as
respondent no. 7 was only a pro-forma
party and his substitution in the array of
parties was dispensable further submitting
that he never filed written statement nor
did he contest the case. It was further
submitted that the substitution application
was attended with an affidavit which
remained
uncontroverted
and
cause
shown was sufficient but the Board of
Revenue overlooked the causes shown
and proceeded to pass the impugned order
which it is further submitted, is liable to
be
quashed.
Per
contra,
Sri
A.P.
Srivastava, appearing for the respondent
tried to justify impugned order arguing
that there was unconscionable delay
which was not satisfactorily explained
and the application for Condonation of
delay was rightly rejected and second
appeal was rightly dismissed as having
abated.

5. Before proceeding further, I
would first scan the impugned order
passed by the Board of Revenue. The line
of reasoning adopted in the impugned
order is that no substitution application
was filed to bring on record the heirs of
the deceased respondent no.7 Triloki who
had died
on
17.5.1986
and
again
respondent no.1 Sonhu had died on
5.7.1989 while substitution application
was preferred on 19.12.1989 in which the
causative factor of delay was the own
inadvertence of the appellant. It bears no
repudiation that the Rules of Limitation
are not meant to destroy the rights of the
parties but are intended that the other
parties do not resort to temporizing tactics
and hence the remedy may be hedged in
with some time-limit within which a
suitor had to seek his legal remedy. In
Shakuntala
Devi
Jain
v.
Kuntal
Kumari1
and
State
of
W.B.
v.
Administrator, Howrah Municipality2
the Apex Court quintessentially held that
the words "sufficient cause" under section
5 of the Limitation Act should receive a
liberal construction so as to advance
substantial justice. In a recent decision in
N.Balakrishnan v. M. Krishnamurthy3,
the Apex Court observed with approval
that length of delay is no matter;
acceptability of the explanation is the only
criterion. It was further observed by the
Apex Court that sometimes, delay of the
shortest range may be uncondonable due
to a want of acceptable explanation
whereas in certain other cases, delay of a
very long range can be condoned as the
explanation thereof is satisfactory. It was
further expounded by the Supreme Court
that there can be some lapse on the part of
the litigant concerned and that alone is not
enough to turn down his plea and to shut
the
door
against
him
unless
the
explanation smacks of malafides if it has
been put forth as part of a dilatory
strategy.

6. Reverting to the facts of the
present case, it would appear that Bhonu
the father of the petitioner was slugging
out the matter and the petitioner stepped
into the shoes of his father in the wake of
his death. It has been argued on behalf of
the learned counsel for the petitioner that
in so far as respondent no. 7 was
concerned, Bhonu and also the petitioner

1 AIR 1969 SC 575
2 AIR 1972 SC 749
3 (1998) 7 SCC 123
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
636
were quite unaware of his death and he
(petitioner) came to know of the death of
respondent no. 7 only on 2.11.1993 on
which
the
impugned
order
was
pronounced. It was further submitted that
copy of application containing prayer for
abating the appeal dated 30.11.1992 was
never served to the petitioner or his
counsel
and
in
the
circumstances,
ignorance
was
unvarnished
and
untarnished and delay cannot be put forth
to any deliberate motive. In so far as
respondent no.4 Triloki is concerned,
learned counsel again pleaded ignorance
stating that as soon as the petitioner came
to know of his death, he lost no time in
preferring substitution application. As
stated supra, the petitioner had entered the
arena after the death of his father, and it
would not be too presumptuous to say that
quite often than not, there is noticeable
gap of communication between father and
son in a traditional family or often fathers
are averse to involve any family member
and the net result remains that it takes
time for a son to pick the thread and there
is bound to occur some lapse before he
matures into doing things adroitly with
the passage of time. In the circumstances,
if delay has happened, it was due to
ignorance simplicitor and cannot be
ascribed to any overt or covert or as a part
of strategy to protract final outcome in the
matter.

7. Coming to the impugned order,
the Board of Revenue has passed a cryptic
order
without
delving
into
the
substantiality of the grounds urged in
support of condonation of delay. What
appears to have weighed with the Board
of Revenue is the massive delay. There is
nothing in the order that the Board of
Revenue tried to split the causes of delay
or that it dealt with the explanation
offered in the affidavits accompanying the
application under section 5 of Limitation
Act. There also appears to be nothing on
the record manifesting that the petitioner
had behaved as irresponsible litigant or he
acted leisurely or perfunctorily in not
preferring substitution application within
the statutory period. In N. Balakrishnan
(supra), the Apex Court rightly observed
that a court knows that refusal to condone
delay would result in foreclosing a suitor
from putting forth his cause and the words
"sufficient cause" under section 5 of the
Limitation Act should receive a liberal
construction so as to advance substantial
justice. In the entire perspective, it does
not appear that delay was deliberate or
petitioner or his father had at all resorted
to temporizing procedure or dilatory
tactics. Rather it would appear that it was
occasioned by ignorance simplicitor. In
the circumstances, it would be too harsh
for the petitioner in case, door of justice is
shut against him and it would foreclose all
options for him to put forth his cause.

8. In yet another case namely Sital
Prasad Saxena (dead) v. Union of India
and others4, the Supreme Court was
observed as under:

"Once an appeal is pending in the
High Court, the heirs are not expected to
keep a constant watch on the continued
existence of parties to the appeal before
the High Court which has a seat for away
from where parties in rural areas maybe
residing. And in a traditional rural family
the father may not have informed his son
abut the litigation in which he was
involved and was a party. Let it be
recalled what has been said umpteen
times that rules of procedure are designed
to advance justice and should be so
interpreted and not to make them penal
statues for punishing erring parties."

4 (1982) 1 SCC 476
http://www.allahabadhighcourt.nic.in
2 All] Kailash Nath and another V. Rajiv Ratan
637

9. The Board of Revenue is the
Apex authority under the U.P.Z.A. & L.R.
Act and in the facts and circumstances as
discussed above, I feel called to observe
that the Board of Revenue has only
skimmed the surface and has not delved
deeper into the substantiality of causes
and seemed to be beguiled into dismissing
the matter swayed by huge delay. Thus
non-application of mind to the relevant
factors whether the conduct of the
petitioner smacked of malafides or he was
indulging in any dilatory tactics to
protract final outcome or that the
explanation
offered
was
quite
unsatisfactory. As stated supra, the
impugned order is a cryptic order passed
without delving into the factors leading to
the
conclusions while
deciding the
condonation application in the instant
case. The order therefore lacks legitimacy
on pivotal aspects and cannot be sustained
in the eye of law.

10.

Accordingly,
the
petition
succeeds and is allowed and the impugned
order dated 2.11.1993 is quashed. While
relegating the matter to the Board of
Revenue for decision afresh, it is directed
that the Board of Revenue shall hear the
appeal on merit and decide the same
within two months from the date of
production of a certified copy of this
order.
---------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 6.7.2004

BEFORE
THE HON'B LE TARUN AGARWALA, J.

Civil Revision No.716 of 1988

Kailash Nath and another ...Revisionists
Versus
Rajiv Ratan

 ...Respondent

Counsel for the Revisionists:
Sri Vijai Bahadur

Counsel for the Respondent:
Sri Wasim Alam

Code of Civil Procedure, 1908-0.IX Rr. 6
and
7-
Application
under-
Maintainability-
Non
appearance
of
defendant on date of hearing-Ex parte
order- Before passing of exparte order
and before delivery of judgment on same
date and moved an application under 0.9
R. 7, C.P.C. for setting aside order of
proceed case ex parte- Application, held,
maintainable.

In the present case, the court passed an
order to proceed exparte against the
defendant, but before the judgment
could
be
delivered,
the
defendant
appeared and moved an application,
which was maintainable and was rightly
allowed by the court below. Para 9

In Arjun Singh case, the court proceeded
exparte against the defendant and fixed
a
date
for
delivery
of
judgment.
Subsequently, the defendant moved an
application for recall of the exparte
order. The Supreme Court held that the
provision of Order 9 Rule 7 CPC was not
attracted to a date fixed for delivery of
judgment and it was not a case of
adjourned hearing. In the present case
no date was fixed for delivery of
judgment. In fact after passing of the
exparte order and before delivery of
judgment, the defendant appeared on
the same date and moved an application.
Such
application
was
clearly
maintainable even under order 9 Rule 7
CPC. Para 10
Case law discussed:
AIR 1964 SC 993
AIR 1955 SC 425

(Delivered by Hon'ble Tarun Agarwala, J.)

1. This revision has been filed by the
plaintiff challenging the correctness of the