Ram Khelawan Gupta vs Board of Revenue

U.C. Maheshwari, J.—The petitioner has filed this petition under Article 227 of the Constitution of India being aggrieved by order dated 15.4.2013, (Ann. P-12), passed by the Board of Revenue, Gwalior in Revenue Revision No. 49/Two-2013, whereby dismissing his application u/s 5 of the Limitation Act for condoning the delay in filing the aforesaid revision filed against the order dated 10.1.2006 passed by the Upper Commissioner, Rewa Division Rewa in Revenue Appeal No. 166/Appeal/99-2000 has been dismissed without entering on any of the merits of the matter. The facts giving rise to this petition in short are that Balmiki Prasad Gupta, (since deceased), the predecessor in title of respondent nos. 5 to 9 had filed an application against the petitioner and respondent no. 10 for partition of agricultural land in the court of respondent no. 4, Tahsildar. The same was registered as Revenue Case No. 31/A/27/95-96. In such case, the reply (Ann. P-2) of admission was filed on behalf of petitioner and respondent no. 10. On consideration, vide order dated 31.8.1996, (Ann. P-4) proposed partition of the alleged revenue land according to Batwara fard was accepted. Such order of Tahsildar was challenged on behalf of private respondent no. 10 in appeal before the respondent no. 3 SDO through revenue appeal no. 118/98-99. On consideration, vide order dated 6.11.1999 (Ann. P-5), such appeal was allowed in part and after setting aside the order of Tahsildar the case was remitted back with some directions to the Tahsildar to decide afresh.

The aforesaid order of SDO passed in appeal was challenged by the aforesaid Balmiki Prasad Gupta, the predecessor of respondent nos. 1 to 9 before the respondent no. 2, Upper Commissioner Revenue by way of Second Appeal No. 166/Appeal/1999-2000. On consideration vide order dated 10.1.2006, (Ann. P-7) such appeal was allowed and the order of SDO 6.11.1999 (Ann. P-5) was set aside. Being dissatisfied with such order of second appeal, the petitioner approached the Board of Revenue with impugned Revision on 4.1.2013. Such revision was filed alongwith an application u/s 5 of the Limitation Act for condoning the delay in filing the same because same was filed at belated stage after more than six years from the prescribed period of limitation to file the revision. In such application, inter alia it is stated that the petitioner was under the influence of his brothers Balmiki Prasad Gupta and respondent no. 10, Hanuman Prasad Gupta. Pursuant to that he had signed some papers and the Vakalatanama and subsequent to it, taking disadvantage of the said, said Balmiki Prasad Gupta and Hanuman Prasad Gupta had misused such papers contrary to his interest. It is further stated that in pendency of some other case before the Tahsildar regarding amendment/modification of the map of the land, the Halk Patwari had informed him on 25.12.2012 regarding aforesaid order of the Upper Commissioner. On coming to know such fact immediately he rushed to the Court of Commissioner, Rewa and obtained certified copy of the impugned order of Commissioner on dated 31.12.2012 and thereafter filed the impugned revision on 4.1.2013 and in such premises, the prayer for condoning the alleged delay in filing the revision is made.

After extending the opportunity of hearing to the parties on the said application u/s 5 of the Limitation Act by the Board of Revenue, on consideration the same was dismissed. In the impugned order, it is stated by the Board of Revenue that the petitioner has filed revision near about after seven years from the date of passing the order by the Commissioner, stating that he came to know about such order on dated 25.12.2012 from the Patwari but in support of such contention neither the affidavit nor any other certificate of Patwari is placed on record. It is also stated that infact the petitioner had got the knowledge of the aforesaid order of Upper Commissioner dated 10.1.2006 on dated 7.10.2010 when the private respondent herein has filed a copy of such order of Commissioner alongwith the index in a pending appeal No. 103/Appeal/11-12 in the Court of Commissioner, Shahdol and in such premises, it was held that the contention of the petitioner that he came to know about the order of Upper Commissioner on 25.12.2012 is not reliable as such he had acquired the knowledge of such order on 7.10.2010 and in such premises by holding that the petitioner has not made out the sufficient cause to condone the delay the application was dismissed.

It is also apparent from the impugned order that while dismissing the impugned revision the merits of the factual matrix of the matter were also taken into consideration and thereafter it was held that the petitioner has not made out any sufficient cause for condoning the alleged delay of near about seven years and in such premises, application has been dismissed and pursuant to that revision has also been dismissed.

It is apparent from the impugned application of the petitioner filed u/s 5 of the Limitation Act before the Board of Revenue that except the aforesaid ground, no any other ground for condoning the delay was taken in the same.

In view of the above mentioned factual matrix, I have not found any perversity, illegality, irregularity or anything against the propriety of law in the order impugned which requires any interference at this stage under Article 227 of the Constitution of India.

True it is that as per existing legal position while dealing with the application of Section 5 of the Limitation Act, the terminology of sufficient cause should be considered by adopting liberal approach but the court is also bound to take care that on the basis of wrong facts, no person should be benefited under the garb of the lenient approach.

It is settled proposition of law that after passing the order by any subordinate authority or court, if within the prescribed period provided under the law, the appeal or revision is not preferred against such order by the aggrieved party, then in that situation a valuable right relating to limitation is accrued in favour of the other side in whose favour such order has been passed. Such right could not be curtailed lightly contrary to the available facts by adopting the lenient approach. If sufficient cause is not made out for condoning the alleged delay, then such delay could not be condoned. My such view is based on the decision of the Apex Court in the matter of Ramlal, Motilal and Chhotelal Vs. Rewa Coalfields Ltd., . In such case it was held as under:-

(7) In construing S. 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excluding delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in 4 I.D (N.S.) 899 , "Section 3 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood the words ''sufficient cause'' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bonafide is imputable to the appellant.

In view of aforesaid discussion, I have not found any error or perversity in the order impugned which requires any interference under Article 227 of the Constitution of India. Consequently this petition being devoid of any merits is hereby dismissed at the stage of motion hearing.