Girja Shanker and Another vs Deputy Director of Consolidation and Others

B.K. Sharma, J.—Heard learned counsel for the parties.

In this writ petition, the Petitioners Girja Shankar and Bateshwar Nath have challenged the order dated 13.11.1995 passed by the Deputy Director of Consolidation, Bhadoi, Camp at Gyanpur in Revision No. 660/652 u/s 48 of the Consolidation of Holdings Act, Rama Shankar and Ors. v. Ram Jiyawan and Ors. village Deegh Uperwar, Tal Kaudh, Tehsil Gyanpur, district Bhadoi, whereby he allowed the revision and set aside the order dated 2.1.93 passed by the Settlement Officer (Consolidation) in Appeal No. 6/1667 Ram Jiyawan v. Gauri Shankar and Ors. and Appeal No. 1883/90-93 Devi Shankar and Ors. v. Rama Shankar and Ors.

The facts leading to this writ petition are that Respondent Nos. 2 and 3 Rama Shankar and Daya Shankar, filed objections u/s 9 of the U.P. Consolidation of Holdings Act in respect of Khata No. 1035, that in the proceedings relating to the said objections (Case No. 6374-6382) a compromise dated 19.1.1988 was filed and verified, that the Consolidation Officer accepted the same and passed an order in its terms on 19.1.1988, that at that time Ram Jiyawan, father of the Petitioners, was alive, that he filed Appeal No. 6/1667 of 1989 Ram Jiyawan v. Gauri Shankar and Ors. on 28.6.89 before the Settlement Officer (Consolidation) against the aforesaid order dated 19.1.1988 and also prayed for condonation of delay claiming that the notice of the said objections of Respondent Nos. 2 and 3 were not at all sent and served on him (Ram Jiyawan, father of the Petitioners) and that he never put his thumb impression on the said compromise dated 19.1.88. He claimed that this compromise deed was fraudulent and forged and that some one has impersonated his name and that the alleged compromise deed did not bear his signature or thumb impression. He also claimed that the order of the Consolidation Officer was passed without application of mind. It was also claimed that the appeal was filed as soon as Ram Jiyawan came to know of the said fraudulent compromise deed. A copy of the memo of appeal is Annexure 4 in the present writ petition. There was also a prayer for condonation of delay in preferring the appeal on the basis of the aforesaid facts and an affidavit was also filed in support of the same, its copy is Annexure 5 in this writ petition. It was said in it that the order dated 19.1.88 of the Consolidation Officer was ex parte, that he did Kaleen business and that in connection with the same he lived in Bhadoi, due to which he could not receive any notice or information about the compromise dated 19.1.88 and that he was not given any notice of the same. He further alleged that when he went back to his house on 16.6.1989, he learned about the said order of compromise and then enquired from the Lekhpal and then preferred the appeal on 29.6.89. Similar appeal No. 1883 was filed by Devi Shankar and Ors. They also claimed condonation of delay u/s 5 of the Limitation Ac*. The Settlement Officer Consolidation allowed the prayer for extending the benefit of Section 5 of the Limitation Act by his order dated 2.1.1993 (Annexure 6 to this writ petition). In this order, it was said that the affidavit filed was gone into, that explanation given in both the affidavits of the Appellants appeared satisfactory and that it appears proper to grant the benefit of Section 5 of the Limitation Act in both the appeals as the view of the High Court is that a liberal attitude should be taken on the question of limitation. A copy of the memo of revision preferred against it by the present Respondent Nos. 2 and 3 before the Deputy Director of Consolidation is Annexure 7 to this writ petition.

Now the impugned order of the Deputy Director of Consolidation aforesaid has been challenged by the Petitioners firstly on the ground that the Deputy Director of Consolidation had no Jurisdiction to entertain and allow the revision as the order granting the benefit of Section 5 of the Limitation Act was only an interlocutary order and a revision against an interlocutory order is expressly barred by the provisions of Section 48 of the U.P. Consolidation of Holdings Act. In my view, this plea is not tenable. The term ''interlocutory order'' has been defined as below in Explanation (2) of Section 48 of the U.P. Consolidation of Holdings Act:

Explanation (2)--For the purposes of this section, the expression ''interlocutory order'' in relation to a case or proceeding means such order deciding any matter arising in such case or proceedings or collateral thereto as does not have the effect to finally disposing of such case or proceeding.

The matter relating to Section 5 of the Limitation Act was to be disposed of first. If the application u/s 5 of the Limitation Act was allowed, the appeal was to be listed for disposal on merits and in case application u/s 5 of the Limitation Act was rejected, the appeal before the Settlement Officer (Consolidation) was to be dismissed as barred by time. The matter of prayer u/s 5 of the Limitation Act for condonation of delay will amount to a proceeding and whether the prayer is allowed or disallowed, the proceeding will come to an end in any case, if allowed, the appeal will be heard on merits and in the other case, the appeal will be dismissed as barred by time. So, it cannot be said that the order passed by the Settlement Officer (Consolidation) allowing the application u/s 5 of the Limitation Act in both the appeals was an interlocutory order. Consequently, it was competent for the Deputy Director of Consolidation to entertain the revision against the order dated 19.1.1988 for condonation of delay in preferring the appeals and dispose of the revision on merits.

When an order has been made u/s 5 of the Limitation Act by the lower court in the exercise of its discretion allowing or disallowing an application to extend time, it could be Interfered with in revision, where the lower court has acted with material irregularity or contrary to law or has come to that conclusion on no evidence as held in Shanti Prasad Gupta v. Dy. Director of Consolidation AIR 1981 Supp. SC 73.

In the present case, the Deputy Director of Consolidation, instead of looking into the admitted facts and the material on record on the basis of which the Settlement Officer (Consolidation) passed the order dated 2.1.93 (Annexure 6 to the writ petition), acted on extraneous material. He based his order on a registered document dated 14.7.80 filed before him by the revisionist. There is no provision u/s 48 of the Consolidation of Holdings Act for admission of additional evidence but even if the additional evidence was to be taken on record, it could not have been taken into consideration without giving an opportunity for rebuttal to the party against whom this additional evidence was filed. Obviously, no such opportunity has been given.

The argument of the learned counsel for the contesting Respondent Nos. 2 and 3 was that the said registered document has not been admitted in evidence but had only been relied upon by the Deputy Director of Consolidation in disposing of the revision. This argument is as untenable as anything. The Deputy Director of Consolidation could not have relied upon extraneous material, without the said extraneous material being made part of the record. It is true that since the condonation of delay was sought by Ram Jiyawan on the ground that there was no notice to him of the proceedings initiated on the objections made by Respondent Nos. 2 and 3 u/s 9 of the Consolidation of Holdings Act before the Consolidation Officer and that he was not a party to the alleged compromise filed in those proceedings and further that somebody had impersonated his name in those proceedings, the question could be gone into whether Ram Jiyawan and others had actually signed or thumb-marked and verified the alleged compromise for if they did so, then their ground for condonation of delay would not stand. However, in doing so, it was not permissible for the Deputy Director of Consolidation to rely upon extraneous material which was never made part of the record and in respect of which no opportunity of denial or rebuttal was given to the other side. But this is precisely what he has done. He has referred to a compromise deed dated 14.7.80, took note of the factum of its registration, the names of its executants and its contents and compared the same with the contents of the alleged compromise filed in the proceedings u/s 9 of the Consolidation of Holdings Act before the Consolidation Officer on 19.1.88 and noticing broad similarity between the same, he discarded the applications u/s 5 of the Limitation Act. He observed that if there was any challenge to the said registered document, a suit for its cancellation should have been brought. Learned counsel for Respondent Nos. 2 and 3 has argued that all this was only an ancillary observation in the impugned order and that the Deputy Director of Consolidation on merits found that there was no sufficient and satisfactory ground for giving the benefit of Section 5 of the Limitation Act. A reference to the impugned order indicates that this plea is not correct. Apart from the deduction made from the registered compromise deed dated 14.7.80, the Depty Director of Consolidation has not given any other ground for coming to the conclusion that the reasons given in the affidavits of the Appellants before the Settlement Officer (Consolidation) were not sufficient and not satisfactory. The conclusion has been mentioned immediately after narrating the above mentioned facts in respect of the alleged earlier registered compromise deed dated 14.7.80. Even after mentioning the conclusion, no other reason was recorded, instead it was said that when the registered compromise deed has been filed by the parties, their heirs are bound by it. Two more reasons that have been given by the Deputy Director of Consolidation in passing the impugned order were that if the benefit of Section 5 of the Limitation Act was given to the Appellants (before the Settlement Officer Consolidation), there will be no end to this dispute and further that on principle, the disputes should be finally disposed of in the consolidation proceedings and for this reason, the order of the Settlement Officer (Consolidation) was liable to be set aside. Obviously, these grounds cannot sustain the impugned order.

The result of the above discussion is that the impugned order passed in revision by the Deputy Director of Consolidation dated 13.11.95 cannot be sustained and has to be quashed.

Now there remains the order dated 2.1.93 passed by the Settlement Officer (Consolidation). In this order, the conclusion has been given that the explanation in both the affidavits filed by the Appellants in support of their prayer for condonation of delay u/s 5 of the Limitation Act in preferring the appeals, appears satisfactory. This is not a categorical finding that the reason is sufficient. Moreover, there is absolutely no mention of any reasons for coming to the conclusion that sufficient cause has been shown. It is true that he has mentioned on the close of the order that the view of the High Court is that a liberal attitude be taken while disposing of the application u/s 5 of the Limitation Act. But it was only a guiding principle which was to be kept in mind while assessing the sufficiency or insufficiency of the ground set out and the material adduced to support the same for the condonation of delay. No reasons have been given for accepting the grounds. So. I find myself unable to support this order dated 2.1.93 of the Settlement Officer (Consolidation) either and there is no option left for me but to quash it and direct the Settlement Officer (Consolidation) to dispose of the prayer for the condonation of delay in preferring the appeals u/s 5 of the Limitation Act after hearing the parties and considering the facts and the circumstances on record and giving reasons in support of the findings.

Learned counsel for the Petitioners has relied on the authority Ram Charan v. Dy. Director of Consolidation 1982 RD 109. This ruling narrates the proper approach while considering the question whether sufficient cause has been shown. The sufficient cause ought to receive liberal consideration so as to advance substantial Justice when no negligence, nor inaction, nor bona fide is imputable to the Appellants as held by the Apex Court in Deen Bandhu Sahu v. Jadumoni Mangaraj and Ors. AIR 1954 SC 411 . This principle is not doubted. The State of West Bengal Vs. The Administrator, Howrah Municipality and Others, , also lays down the same principle. Here, what is wanting is a reasoned order by the Settlement Officer (Consolidation).

Learned counsel for the Petitioners has also relied upon the authority, Smt. Geeta Rani Paul v. Dibyendra Kundu 1991 RC 32. This was a case where the findings of the trial court were based on proper appreciation of pleadings and evidence on record and, therefore, interference by the High Court with the order of the trial court was disapproved. This ruling, therefore, does not apply to the circumstances of the present case.

Learned counsel for Respondent Nos. 2 and 3 has relied on the authority Sankatha Singh v. Deputy Director of Consolidation and Ors. (1983) All LJ 807 (Lucknow Bench). In this case, the ground for condonation of delay u/s 5 of the Limitation Act was rejected by the Consolidation Officer, then by the Settlement Officer (Consolidation) in appeal and further by the Deputy Director of Consolidation in revision giving reasons and the High Court declined to interfere. Here, the order (Annexure 6) was passed by Settlement Officer (Consolidation) without giving reasoning in support of his findings and the Deputy Director of Consolidation passed the impugned order (Annexure 8) basing his conclusion on inadmissible material and so there is no other option but to interfere.

Here, we would not go into the merits of the cases of the parties regarding title or even regarding sufficiency or insufficiency of the grounds for condonation of delay. The Settlement Officer (Consolidation) will be looking into the grounds for condonation of delay in preferring the appeals. The merits of the claim of title by the respective parties are not to be looked into at that stage. That stage of considering the merits of the claim of title of the respective parties would arise only in case the appeals come for hearing on merits before him, i.e., in case the delay in preferring appeals is condoned u/s 5 of the Limitation Act.

The writ petition is accordingly allowed. The impugned order dated 13.11.95 passed by the Deputy Director of Consolidation, Bhadoi, Camp at Gyanpur (Annexure No. 8 to the writ petition) and the order dated 2.1.1993 passed by the Settlement Officer (Consolidation), Varanasi (Annexure No. 6 to the writ petition) both are quashed. The Settlement Officer (Consolidation), Varanasi shall consider and dispose of the prayer made in the applications moved u/s 5 of Limitation Act for condonation of delay in preferring the two appeals according to law and in the light of the observations made in the body of this judgment.