Gati Ltd vs Gaon Sabha Samalkha

Sunil Gaur, J.—Finding that Khasra No. 14/20/2 min.(1-16) and 14/19/2 (4-0) in Revenue Estate of Village Samalka, Tehsil Vasant Vihar, Delhi had been converted to non-agricultural use by the petitioner, thereby contravening provision of Section 81 of Delhi Land Reforms Act, 1954, conditional order of 11th April, 2007 (Annexure P-8) was passed by the concerned SDM/Revenue Assistant. Since, petitioner had failed to convert back the subject land to agricultural use within stipulated period of three months and because none had appeared on behalf of the petitioner before concerned Revenue Assistant, therefore ejectment order of 1st February, 2008 (Annexure P-11).was passed directing vesting of the subject land in the Gaon Sabha. Petitioner had sought recalling of order of 1st February, 2008 (Annexure P-11) by invoking Order 9, Rule 13 of CPC and had also filed an application seeking condonation of delay in filing aforesaid application, which was dismissed vide order of 1st August, 5011 (Annexure P-22) by observing that the application had been filed on 29th October, 2010 i.e. on 32nd Day of acquiring knowledge about the order of 1st February, 2008, whereas limitation for filing such application is of 15 days from the date of knowledge.

Petitioner had also filed an application u/s 151 of CPC to highlight that the application seeking recall of ex-parte order of 1st February, 2008, was filed on 25th October, 2010 and not on 29th October, 2010 as noted in order of 1st August, 2011 (Annexure P-22). Aforesaid application stands dismissed vide order of 19th August, 2011.

The two orders which are impugned in this petition are of 1st August, 2011 (Annexure P-22). In the subsequent order of 19th August, 2011 refusing to correct the typographical error in the order Annexure P-22. The precise submission of learned counsel for the petitioner is that Section 190 of Delhi Land Reforms Act, 1954 provides that the CPC as well as the Limitation Act applies to the proceedings under this Act and therefore, petitioner was under the bona fide impression that the period of limitation for seeking recall of ex-parte order is 30 days from the date of knowledge and had drawn the attention of this Court to impugned order (Annexure P-22) to point out that it stands recorded therein that petitioner had filed the application under Order 9, Rule 13 of CPC on 25th October, 2010 and in the operative portion of the impugned order, it is inadvertently recorded that the petitioner had filed the said application on 29th October, 2010. Thus, it was emphasized by learned counsel for the petitioner that after excluding the period of limitation of 15 days as prescribed in Appendix-VI of Delhi Land Reforms Rules, 1954, the period of delay would be of 13 days only.

The explanation furnished for the aforesaid period of delay, by learned counsel for the petitioner is that the petitioner was ignorant about the period of limitation prescribed in Appendix-VI of Delhi Land Reforms Rules, 1954, and was under bona fide impression that the period of limitation is of 30 days as per Article 123 of the Schedule to the Limitation Act, 1963.

There is vehement opposition to this petition by learned counsel for the respondent, who asserts that this petition is not maintainable as the petitioner has already challenged the order of 1st February, 2008 (Annexure P-11) before the concerned Collector and so, petitioner cannot be allowed to maintain this petition.

At the hearing, it was not disputed by learned counsel for the petitioner that indeed petitioner has filed an appeal against the aforesaid order Annexure P-11, in which respondent has taken objection regarding its maintainability and so the petitioner is entitled to maintain this petition.

Clearly, a party cannot be allowed to pursue statutory remedy as well as to invoke the writ jurisdiction of this Court against one order i.e. of 1st February, 2008 (Annexure P-11). However, not much is required to be said on this aspect because petitioner''s statutory appeal is dearly not maintainable in view of the embargo put by paragraph No. 14 in the Appendix-VI to the Delhi Land Reforms Rules, 1954, which is as under:-

No appeal from orders passed ex-parte or by default. Rehearing on proof of good cause for non-appearance - No appeal shall lie from an order passed under paragraph 13 ex-parte or by default.

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 15 days from the date of such order, and if a defendant within 15 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 goods 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 officer may, upon such terms as to costs or otherwise as he thinks proper, revive the case and later or rescind the order according to the justice of the case.

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.

In view of the aforesaid bar as contained in Appendix-VI a coordinate Bench of this Court in Rita Choudhrie & Anr. Vs. Samtya Dev & Anr. 2004 I AD (DEL) 476 : 109 (2004) DLT 5 has held that petition under Article 227 of the Constitution of India is maintainable as appeal to challenge an ex-parte order in proceeding under Delhi Land Reforms Act, 1954 does not lie.

Now what is to be seen is whether impugned order of 19th August, 2011 refusing to correct the typographical error while taking the date of petitioner''s application as 29th October, 2010 is sustainable or not. Since, it stands recorded in the order of 1st August, 2011 (Annexure P-22) dismissing petitioner''s application under Order 9, Rule 13 of CPC as time barred that petitioner''s application is of 25th October, 2010, therefore, impugned order of 19th August, 2011 is clearly unsustainable and is thus set aside.

The impact of setting aside of aforesaid impugned order of 19th August, 2011 upon the order (Annexure P-22) is direct i.e. it reduces the period of delay to merely 13 days. The explanation offered for the delay occasioned has to be considered while keeping in mind that the expression ''sufficient cause'' is to be liberally construed and not in a pedantic manner as has been done in the impugned order (Annexure P-22). When petitioner asserts that under the bona fide impression period of limitation was understood to be 30 days as provided under Article 123 of the Limitation Act, it would certainly provide a sufficient cause for condoning the delay of 13 days.

Applying the principles which should control the exercise of discretion vested in the Courts in condoning the delay as reiterated by the Apex Court in Balwant Singh (Dead) Vs. Jagdish Singh and Others, , I find that the reason put forth for the delay occasioned is plausible one, which has not been considered in the impugned order (Annexure P-22) in its correct perspective. Therefore, impugned order Annexure P-22 stands quashed.

Petitioner''s application (Annexure P-14) for condoning the delay in filing the accompanying application under Order 9, Rule 13 of CPC stands allowed. Resultantly, petitioner''s application under Order 9, Rule 13 of CPC (Annexure P-13) is required to be dealt with by the concerned SDM/RA in accordance with the law. For this purpose, the parties with their counsel are directed to appear before the concerned SDM/RA on 7th March, 2012. Needless to say, petitioners appeal before the concerned Collector against order of 1st February, 2008 (Annexure P-11) is rendered infructous. With aforesaid directions, this petition stands disposed of with no order as to costs.