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Shiv Narain Singh & Ors. v. Board Of Revenue & Others - WRIT - B No. 43189 of 1993 [2004] RD-AH 292 (5 July 2004)


This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).




Shiv Narain Singh.........................................................Petitioner


Board of Revenue U.P. Allahabad and others.......Respondents.

Hon. S.N.Srivastava, J.

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.

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.

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

Learned counsel appearing for the 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.

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 Kumari  and State of W.B. v. Administrator, Howrah Municipality  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. Krishnamurthy , 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.

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 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.

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.

In yet another case namely Sital Prasad Saxena (dead) v. Union of India and others , 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."

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.

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.





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