Amaresh Das v.

State of West Bengal , (Calcutta) (DB) : Law Finder Doc Id # 141063

CALCUTTA HIGH COURT

(DB)

Before:-Bhaskar Bhattacharya and Kishore Kumar Prasad, JJ.

W.P.L.R.T. No. 140 of 2007. D/d. 10.5.2007.

Amaresh Das and Others - Petitioners

Versus

State of West Bengal and Others - Respondent

For the Petitioners :- Mr. Nibaran Kumar Das, Mr. Z. Haque, Advocates.

For the Respondent Nos. 5 to 13 :- Mr. Bhaskar Chandra Manna, Advocate.

For the State :- Mr. Sitaram Samanta, Advocate.

A. West Bengal Land Reforms Act, Section 54 - Limitation - An appeal was preferred beyond the period of
limitation - These was no application for condonation of delay - The appeal could not be entertained - The
Appellate Authority cannot enter into the merit - Impugned order set aside - Matter remanded back.

[Para 16]

B. Limitation Act, 1963 Section 5 Condonation of delay - No application for condonation of delay - Delay
could not be impliedly condoned.
[Para 18]

C. Limitation Act, 1963 - Condonation of delay - Application for condonation not filed with the
memorandum of appeal - Application for condonation of delay can be filed subsequently - Law explained in
Para 20 - Writ Petition allowed.

[Para 20]

Cases Referred :-

Ragho Singh v. Mohan Singh, 2009 SCC 717.

Hari Shankar Singhania v. Gaur Hari Singhania, (2006)4 S.C.C. 658.

Saithalavi v. Kerala State Electricity Board, (1998)9 SCC 557.

Mrs. Sandhya Rani Sarkar v. Sudha Rani Devi, AIR 1978 Supreme Court 537.

L. Naik Mahabir Singh v. Chief of Army Staff, 1990 (Supp) SCC 89.

State of West Bengal v. Nripendra Nath Banerjee, 96 CWN 209.

JUDGMENT

Bhaskar Bhattacharya, J. - This application under Article 226/227 of the Constitution of India is at the
instance of the unsuccessful applicants before the West Bengal Land Reforms and Tenancy Tribunal and is
directed against order dated February 15, 2007 passed by the said Tribunal thereby dismissing the
application filed by the writ-petitioners.
2. Being dissatisfied with an order dated July 3, 2002 passed by the B.L. & L.R.O concerned, the private
respondents before us, the owners of the disputed lands, moved an application before the Tribunal thereby
challenging the order of the said B.L. & L.R.O. by which the predecessors-in-interest of the present writ
petitioners were declared Bargadar in respect of the property in dispute with direction upon him, to take
possession of the property concerned. The Tribunal dismissed the said application on the ground that the
private respondents had efficacious alternative remedy by way of appeal.

3. Being dissatisfied, the private respondents, in the past, filed a writ-application under Article 226/227 of
the Constitution of India before a Division Bench of this Court but the said Division Bench dismissed such
application thereby affirming the order passed by the Tribunal.

4. Subsequently, the private respondents filed an appeal before the Appellate Authority under Section 54 of
the West Bengal Land Reforms Act against the order passed by the B.L. & L.R.O. beyond 253 days after the
expiry of the period of limitation prescribed by law. The appeal was not accompanied by any application for
condonation of delay. During the pendency of the said appeal, the predecessors-in-interest of the present
writ-petitioners in whose favour the B.L. & L.R.O. passed the order impugned in the appeal died but
notwithstanding such fact, the private respondents did not substitute the heirs and legal representatives of
the said declared Bargadar in the appeal.

5. The present writ-petitioners, who are all the sons of the deceased person in whose favour the B.L. &
L.R.O. had granted relief, appeared before the Appellate Authority of their own and contended that the
Appellate Authority had no jurisdiction to take up the appeal, which was filed beyond the period of
limitation without condoning the delay in preferring such appeal. They also pointed out that the sole
respondent before the Appellate Authority had already died and, therefore, without substituting them in
place of the deceased respondent the appeal could not proceed.

6. Notwithstanding those objections, the Appellate Authority, curiously enough, entered into the merit of
the appeal and came to the conclusion that the finding of the B.L. & L.R.O. concerned which was the
subject-matter of the appeal was illegal and, therefore, set aside the order passed by the B.L. & L.R.O. and
remanded the matter back to the B.L. & L.R.O. for fresh decision.

7. Being dissatisfied, the writ-petitioners moved the Tribunal thereby complaining that the Appellate
Authority could not allow the appeal against a dead man and that too, in an appeal preferred beyond the
period of limitation without condoning the delay in preferring the appeal.

The Tribunal by the order impugned herein accepted the position that the appeal was preferred beyond the
period of limitation; notwithstanding such position, the Tribunal decided to ignore such question by making
the following observation :
"Although, in our opinion delay should have been explained by the appellants and in the interest of natural
justice, the applicants should also have been given an opportunity for registering their objection to that
appeal. However, since the condonation of delay is the discretionary power of the appellate authority, we
do not intend to make any comment on that. Moreover, we agree to the argument of the Ld. G.R. that the
appellate authority has not decided the matter finally and has remanded the case to the Bhagchash Officer
for afresh determination. That being the position, the applicants have all the points open to them and they
can put up their cases before the Bhagchash Officer for redressal of their grievances. Moreover when the
order of the Bhagchash Officer suffers from material irregularity and the appellate authority has ordered
for afresh determination by rectifying those deficiencies, we do not find any reason to interfere with that
order and we are of the opinion that there is no merit in this O.A. 3845/05 and should therefore be
dismissed."

8. Being dissatisfied, the writ-petitioners have come up with the present application under Article 226/227
of the Constitution of India.

9. Mr. Das, the learned advocate appearing on behalf of the writ-petitioners vehemently contended before
us that the Tribunal acted illegally and with material irregularity in approving the order of the Appellate
Authority, which was, on the face of it, without jurisdiction. According to Mr. Das, once the sole respondent
died during the pendency of the appeal, so long his clients were not substituted after setting aside the
abatement, the appeal could not be taken up for hearing on merit. Moreover, according to Mr. Das, the
appeal being preferred, admittedly, beyond the period of limitation prescribed by law, the Appellate
Authority had no jurisdiction to enter into the merit of the matter so long the delay was not condoned. Mr.
Das points out that no application for condonation was filed before the Appellate Authority although his
clients took specific objection by entering appearance in the abated appeal.

10. Mr. Manna, the learned advocate appearing on behalf of the private respondents has opposed the
aforesaid contentions advanced by Mr. Das and has contended that the writ-petitioners having already
entered appearance in the appeal, they were not prejudiced in any way for non-substitution of the original
respondent. According to Mr. Manna, his clients were not aware of the death of the respondent during the
pendency of the appeal.

11. As regards the question of limitation, Mr. Manna submits that an application for condonation of delay
need not necessarily be in writing and that there can be oral application for condo-nation of delay and in
this case, it should be presumed that the Appellate Authority has allowed the oral prayer for condonation
of delay.

12. Mr. Manna further contends that the Tribunal having arrived at the conclusion that the B.L. & L.R.O.
acted with material irregularity in recording the name of the father of the writ-petitioners as Bargadar, this
Court sitting in a writ jurisdiction should not interfere with such finding recorded by the Tribunal.
13. Therefore, the first question that arises for determination in this application under Article 227 of the
Constitution of India is whether the Appellate Authority was justified in entering into the merit of the
appeal although the appeal was preferred beyond the period of limitation and there was no prayer for
condonation of delay and whether the Tribunal was justified in ignoring such fact.

14. It is now a settled law that the appeal is a creature or Statute and if there is a period of limitation
prescribed for preferring such appeal, no appeal can be entertained beyond the period of limitation unless
the Appellate Authority is vested with the jurisdiction to condone the delay and in exercise of such power,
the Appellate Authority actually condoned such delay. In the case before us, under the provision of the
Land Reforms Rules, the period of limitation for filing the appeal is one month from the date of passing of
the order and the Appellate Authority is also given power to condone the delay in preferring such appeal if
sufficient cause is shown by the appellant.

15. In the case before us, there was, however, no application for condonation of delay. It further appears
that the sole respondent also died during the pendency of the appeal and at that stage, the writ-petitioners
before us, the sons of the deceased respondent, pointed out to the Appellate Authority that their father
bad died and that the appeal was preferred beyond the period of limitation.

16. Notwithstanding such objection, the Appellate Authority decided to enter into the merit of the appeal
and set aside the order impugned therein by remanding the matter back to the B.L. & L.R.O. concerned for
fresh decision.

We are unable to approve the order passed by the Appellate Authority for the following reasons :

As pointed out by the Supreme Court in the case of Ragho Singh v. Mohan Singh & Ors. reported in (2001) 9
SCC 717, if there was no application for condonation of delay, the appeal could not be entertained and the
Appellate Authority cannot enter into the merit.

17. Over and above, the sole respondent being dead, and such fact having been brought to the notice of
the appellate authority, it was its duty to first, ask the appellants therein to file appropriate application for
substitution and after substitution of the present appellants and other heirs of the deceased if any, the
Appellate Authority could enter into the question of condonation of delay in preferring the appeal if any
prayer was made for condonation of delay. Under the provisions of the West Bengal Land Reforms Act or
the Rules framed there under, the provisions of Order 22 of the Civil Procedure Code have not been made
applicable to the proceedings of appeal and therefore, the question of abatement of appeal did not arise.
18. We are unable to approve the reason assigned by the Tribunal in not interfering with the order passed
by the Appellate Authority. Question of condonation is no doubt discretionary but where the heirs of the
deceased respondents have not been substituted nor have any Memorandum of Appeal been served upon
the heirs of the respondent and no separate application for condonation of delay had been filed and
consequently, the heirs of deceased respondent did not get any opportunity to know either the ground of
condonation of delay or the grounds mentioned in the Memorandum of Appeal, the delay could not be
even impliedly condoned nor could the Appellate Authority enter into the merit of the appeal.

19. After going through the order passed by the Appellate Authority we find that the Appellate Authority
specifically recorded that the question of limitation was raised by the heirs of the deceased respondent but
it did not decide the question of limitation for the reason best known to it. The first point to be decided by
the Appellate Authority as recorded in the order-sheet was whether the appeal submitted by Kadamba
Kishore Giri & others should be accepted or not and the said question had been answered by the following
observation :

"As regards first point all the parties are consulted. The objection raised by the opponent has been carefully
considered. I find no difficulty in accepting the appeal. Hence it is accepted".

Therefore, the previously mentioned finding cannot be said to be an implied finding allowing the
application for condonation of delay though no such application was filed. Moreover, the Memorandum of
Appeal had not been served upon the heirs of the deceased respondent and no formal order was even
passed allowing any application for substitution.

20. We now propose to deal with the various decisions cited by Mr. Manna in this behalf.

In the case of Hari Shankar Singhania & Ors. v. Gaur Hari Singhania & Ors. reported in (2006) 4 SCC 658, the
High Court while dismissing an appeal was of the view that the oral application for condonation of delay
should not be entertained in Court of Law according to the present judicial system. The Supreme Court on
appeal observed that such observation was not pertinent in the said case because the proceeding was filed
well within the period of limitation. Therefore, we find that the said decision does not help Mr. Manna's
client in anyway. Moreover, this is nobody's case that even any oral application was made before the
Appellate Authority in the present case.

In the case of Saithalavi v. Kerala State Electricity Board reported in (1998) 9 SCC 557, an application under
Section 16(3) of the Telegraph Act, 1985 was filed beyond the period of three years and objection to
limitation although taken before the Trial Court was neither canvassed and not included in issue. In such a
case, the Supreme Court was of the view that the question of limitation being a pure question of law
assumed the character of jurisdictional issue and therefore, the High Court rightly held that such an
application to be time barred. However, the Supreme Court in that case gave liberty to the applicant to
show that he had sufficient cause for getting the delay condoned by filing an application under Section 5 of
the Limitation Act. By relying upon the said decision, Mr. Manna wanted to contend before us that even if
we hold that the appeal was barred by limitation his client should get an opportunity to file an application.
In the case before us, the question of limitation was very much pressed by the writ petitioners before the
Appellate Authority, but the Appellate Authority chose to dispose of the appeal on merit even before
substitution the heirs of the deceased respondent. Therefore, it is a fit case, where it was the duty of the
Appellate Authority to first substitute the writ-petitioners and then consider the question of limitation or
the sufficiency of the ground for condonation if prayed for by the appellants. Law, however, is, now settled
that an application for condonation of delay need not be filed along with the Memorandum of Appeal and
can be filed even subsequently and in such a situation, the delay should be explained till the presentation of
the appeal and not till the filing of the subsequent application for condonation of delay. At this stage it will
not be out of place to refer to the following observation of the Apex Court in the case of Mrs. Sandhya Rani
Sarkar v. Sm. Sudha Rani Devi and others reported in AIR 1978 Supreme Court 537 :

"Very serious exception is taken to one observation of the High Court that an application for condoning the
delay was submitted simultaneously with filing the appeal though in fact it was done nearly four years after
filing of the appeal, and that the office of the High Court was misled by certain averments made in the
Memo of Appeal which the Registry prima facie accepted and numbered the appeal without insisting upon
an application for condonation of delay or bringing that fact to the notice of the Court on whose cause list
the appeal was listed for admission. Now, it is undoubtedly true that the application for condoning the
delay was made on 8th August, 1972 and there is some factual error in stating in the judgment that the
application was simultaneously filed with the appeal. But this aspect is not very material as the delay had to
be explained till the date of filing of the appeal and not at any rate after filing of the appeal or till the
application for condoning the delay was made. "

(Emphasis supplied)

In the case of L. Naik Mahabir Singh v. Chief of Army Staff, reported in 1990 (Supp) SCC 89, an application
for special leave was filed beyond the period of limitation but no application for condonation of delay was
filed. In such circumstances, the Supreme Court accepted the oral prayer of the counsel to condone the
delay and thereafter, proceeded to hear the matter on merit. By relying upon the said decision Mr. Manna
submitted before us that an oral application for condonation of delay is permissible. That an oral
application for condonation of delay is permissible in some instances where facts giving rise to the cause of
delay are already borne out by materials on record is not in dispute. In the case before us, the so-called
Memorandum of Appeal filed before the Appellate Authority has been annexed to the writ-application. We
find that the same was not filed in the form of Memorandum of Appeal in accordance with the Civil
Procedure Code as enjoined by the Rules framed under the West Bengal Land Reforms Act but was
supported by affidavit disclosing, in detail, how in the past, the appellants unsuccessfully first moved the
Tribunal and then, this Court in writ jurisdiction and ultimately, preferred the appeal. Therefore, the reason
for delay was more or less sufficiently indicated in the purported Memorandum of Appeal but specific
prayer for condonation of delay was not made. In such a situation, we propose to give an opportunity to
the landowners to file a formal application for condonation of delay and to correct the Memorandum of
Appeal in accordance with the Rules.

In the case of State of West Bengal v. Nripendra Nath Banerjee & others, reported in 96 CWN 209, an
appeal preferred beyond the period of limitation was filed without any application for condonation of
delay. Subsequently, such application was filed explaining the delay. In such circumstances, the Division
Bench of this Court was of the view that even if an application for condonation of delay is filed not along
with the Memorandum of Appeal but subsequently, there is no bar in condoning the delay. We respectfully
agree with the view and propose to give an opportunity to file such an application to the private
respondents.

We, therefore, find that this is a fit case where the order passed by the Tribunal as well as the Appellate
Authority should be set aside as the Appellate Authority entertained the appeal against the order of the
B.L. & L.R.O. concerned which was preferred beyond the period of limitation without deciding the question
of sufficiency on the ground of condonation of delay. We, however, give an opportunity to file an
appropriate application for condonation of delay by incorporating the reasons already given in the
Memorandum of Appeal filed by the private respondents provided such application is filed within a
fortnight from today and further, the private respondents pay costs of Rs. 3400/- to the writ-petitioners
within a month from today for unnecessarily harassing them by approaching various wrong forums. In
default, of filing such application and payment of costs, the order passed by the B.L. & L.R.O. impugned in
the appeal before the Appellate Authority will stand.

This writ-application, thus, is allowed; the order of the Tribunal and the Appellate Authority are set aside
and the matter is remanded back to the Appellate Authority in the light of the observations made in this
order and subject to the conditions imposed herein.

Kishore Kumar Prasad, J. - I agree.

Product S.No.723072561

This judgement ranked 7 in the hitlist.

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Kesar Singh v. Hans Raj, (P&H) : Law Finder Doc Id # 37636

PUNJAB AND HARYANA HIGH COURT

Before :- Ashok Bhan, J.

C.R. No. 4877 of 1994. D/d. 25.7.1995.

Kesar Singh - Petitioner

Versus

Hans Raj and others - Respondents

For the Petitioner :- Mr. S.S. Nijjar, Sr. Advocate, with Mr. G.S. Bajwa, Advocate.

For the Respondent :- Mr. P.S. Patwalia, Advocate, Parminder Singh, A.A.G., J.S. Mann, Advocate.

Limitation Act, 1963, Section 5 - Sufficient cause - Condonation of delay - Court can take a liberal approach
in condoning the delay , but the liberal approach cannot be adopted as a matter of routine - Lower
Appellate Courts has condoned the delay of more than 150 days without any sufficient cause - Whereas
applicant was required to explain the delay in filing appeal for each day which he has miserably failed to do
- Order of Lower Appellate Court set aside - plea that govt. pleader failed to inform about the result of suit,
not a sufficient cause for condonation of delay in filing the appeal - Application for condonation of delay
dismissed.

[Para 8]

ORDER

Ashok Bhan, J. - Plaintiff-petitioner (hereinafter referred to as "the petitioner") filed a suit for declaration
that the promotion of defendant-respondent No. 1 Hans Raj (hereinafter referred to as "respondent No. 1")
as Superintendent Grade - IV is illegal, against rules and liable to be struck down and further to promote
the petitioner as Superintendent Grade - IV with effect from 14.3.1980 with all the benefits accruing as a
result thereof. State of Punjab contested the claim of the petitioner and filed its written statement.
Respondent No. 1 was served and put in appearance and made a statement that he adopts the written
statement filed by the State of Punjab. Thereafter, respondent No. 1 did not put in appearance. Trial Court
partly decreed the suit filed by the petitioner on 24.3.1994. It was held that promotion of respondent No. 1
as Superintendent Grade-IV was illegal and against the rules. Promotion of respondent No. 1 as
Superintendent Grade-IV was set aside. Further, a direction was issued to the respondent-State of consider
the case of the petitioner for promotion to the post of Superintendent Grade-IV.

2. No appeal was filed by the State of Punjab against the judgment and decree of the trial Court. In
pursuance to the decree passed by the trial Court, respondent No. 1 was reverted on 19.9.1994 and the
petitioner was promoted as Superintendent Grade-IV in his place. Having come to know about the passing
of the decree, respondent No. 1 applied for a certified copy of the judgment and decree passed by the trial
Court on 20.9.1994, which was supplied to him on 23.9.1994 and immediately thereafter, he filed an appeal
along-with an application under Section 5 of the Limitation Act, 1963 (hereinafter referred to as "the Act")
for condonation of delay in filing the appeal. The plea taken in the application filed under Section 5 of the
Act was that he had asked the Government Pleader, who was appearing for the State of Punjab, to inform
him about he result of the suit and the Government Pleader did not inform him about the passing of the
decree and as soon as he came to know about the decree on his reversion on 19.9.1994, he filed the appeal
without any delay. This application for condonation of delay in filing the appeal was contested by the
petitioner. Lower Appellate Court accepted the application filed by respondent No. 1 for condonation of
delay and held that respondent No. 1 depended upon the assurance given hy the Government Pleader that
he would inform him about the result of the suit; that the Government Pleader did not inform him about
the result of the suit and, therefore, respondent No. 1 did not come to know about the decision of the trial
Court and hence, there was sufficient cause for condoning the delay in filing the appeal. The delay in filing
the appeal was condoned subject to payment of Rs. 500/- as costs.
3. Aggrieved against the aforesaid order of the Lower Appellate Court, present revision petition has been
filed.

4. Notice of motion was issued. This revision petition is being disposed of at the motion stage.

5. Counsel for the parties have been heard.

6. The main plea of the counsel for the petitioner is that the Lower Appellate Court has condoned the delay
in filing the appeal, without recording a cogent finding that respondent No. 1 had made out a sufficient
cause for condoning the delay in filing the appeal; that the Government Pleader could not have appeared
for a private party in the suit and it was not obligatory or a part of his duty to inform a private party about
the decision in the suit.

7. As against this, the plea taken by the counsel for respondent No. 1 is that the Government Pleader had
agreed to inform respondent No. 1 about the decision by the trial Court and, since, the Government
Pleader failed to inform respondent No. 1 about the result of the suit, there was a sufficient cause for
condonation of delay in filing the appeal and that respondent No. 1 filed the appeal without losing any time
after he came to know about the decree passed in the suit.

8. Respondent No. 1 has failed to affirmatively show that he had acted bona fide and that he had been
assured by the Government Pleader to inform him about the result in the suit. In fact, he did not pursue the
matter and left the same to be pursued by the State of Punjab. Respondent No. 1 was negligent in not
pursuing the matter and it is he alone who has to suffer for his negligence. Respondent No. 1, after making
a statement in the Court that he adopts the written statement filed by the State of Punjab, did not pursue
the matter any further. He did not contest the suit thereafter till the decision. Respondent No. 1 himself
evaded his responsibility of contesting the suit and relied upon the respondent-State in defending the case.
No sufficient cause has been shown by respondent No. 1 for condoning the delay of more than 150 days in
filing the appeal. No doubt, Court can take a liberal approach in condoning the delay, but the liberal
approach cannot be adopted as a matter of routine. In this case, the Lower Appellate Court has condoned
the delay of more than 150 days without any sufficient cause, whereas respondent No. 1 was required to
explain the delay in filing the appeal for each day which he has miserably failed to do.

For the reasons stated above, this revision petition is accepted. Order of the Lower Appellate Court is set
aside. The application filed by respondent No. 1 for condonation of delay in filing the appeal is dismissed.
No costs.

Revision accepted.