Allowed

Riyaz Ahmad Khan and Others v. District Magistrate / District Deputy Director of Consolidation, Balrampur and Others

Allahabad HC2 Dec 2024WRIB/1039/2024

Case brief

AI extract

What is this about?

The High Court set aside the Deputy Director of Consolidation's order rejecting a Section 5 Limitation Act application and a recall motion. The Court held that a lower authority must first decide an application for condonation of delay based on cause shown, without entering into the merits of the previous orders, before considering a recall application.

What did the court decide?

Impugned order dated 20.09.2024 set aside. Application for Section 5 and recall application restored for fresh hearing.

Riyaz Ahmad Khan and Others vs District… — Civil Procedure and Limitation | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:79961

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Court No. - 8

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Case :- WRIT - B No. - 1039 of 2024

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Petitioner :- Riyaz Ahmad Khan And Others Respondent :- District Magistrate / District Deputy Director Of Consolidation, Balrampur And Others

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Counsel for Petitioner :- Mohammad Ehtesham Khan

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Counsel for Respondent :- C.S.C.,Bhavana Gupta,Devraj Singh,Shashwat Srivastava,Uma Shankar Sahai

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Hon'ble Jaspreet Singh,J.

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Heard Shri M.E.Khan, learned counsel for the petitioners, learned Standing Counsel for the State-respondents and Shri Shashwat Srivastava for the private respondents.

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At the outset, it may be noticed that Shri Shashwat Srivastava and Shri U. S. Sahai had already put in appearance on behalf of respondents no.5 and 12 on caveat and today he has filed his Vakalatnama on behalf of the remaining respondents no.2, 4, 6, 11 and 13 and thus all the contesting parties are now represented. The respondents no.14 to 18 are proforma parties who did not contest the proceedings before the Deputy Director of Consolidation.

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Accordingly with the consent of the counsel for the parties, the petition is being decided finally at the admission stage itself without calling for any counter-affidavit.

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Shri M. E. Khan, learned counsel for the petitioners has urged that an application for recall which was accompanied by an application under section 5 of the Limitation Act 1963 has been rejected by the Deputy Director of Consolidation, Balrampur by means of the impugned order dated 20.09.2024.

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The precise submission of the learned counsel

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for the petitioners is that while rejecting the application under Section 5 of the Limitation Act, the Deputy Director of Consolidation has not only entered into the merits of the controversy but the Deputy Director of Consolidation primarily was influenced by the previous conduct of the petitioners and on the aforesaid basis the application has been rejected whereas the Deputy Director of Consolidation ought to have made an objective assessment of the cause shown which has not been done and thus not only the impugned order is bad in the eyes of law but it also forecloses the right of the petitioners to contest the proceedings on merit which is engaging the attention of the authorities since 1984. It is thus urged that for the aforesaid reasons, the impugned order deserves to be set aside.

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Shri U. S. Sahai and Shri Shashwat Srivastava while defending the order has submitted that the Court concerned while passing the impugned order as merely taken note of the series of facts in order to ascertain as to whether any specific and sufficient cause has been made out to condone the delay and it cannot be said that the court has entered into the merits. Since no case for condonation of delay was made out and the application under Section 5 was rejected, hence as a necessary corollary the recall application also has been dismissed and such an order does not require any interference from the Court.

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The Court has heard the learned counsel for the parties and also perused the material on record.

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It is not disputed that the parties have been litigating since long. In the earlier round of litigation the matter had come up before this Court in Writ Petition No.29056 (Cons.) of 2016 which was decided by means of order dated 24.02.2020 and a Co-ordinate Bench of this Court had relegated the matter to the revisional court for hearing on merits of the application for condonation of delay alongwith application for recall. A copy of the order passed by a Co-ordinate Bench of this Court dated 24.02.2020 has been placed on record as annexure no.12.

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From perusal of the aforesaid order, it clearly indicates that the revisional court was directed to consider the application for condonation of delay first and in case if it found favour with the court and the delay was condoned, then the application for recall was to be heard on its own merits.

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In the aforesaid backdrop, if the order impugned is perused, it would indicate that apart from noticing the previous litigation, the Deputy Director of Consolidation has entered into the merits and has taken note of those facts and circumstances including the manner in which the petitioners had first contested the proceedings to come to a conclusion that the petitioners did not have a sufficient cause for seeking condonation of delay.

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The Deputy Director of Consolidation while passing the impugned order dated 20.09.2024 has also referred to the earlier orders dated 08.09.2016 and 14.09.2016 and found the same to be in accordance with law which apparently is an erroneous exercise of jurisdiction as while considering an application under Section 5 of the Limitation Act, the Court is required to consider the cause shown and it is not required of the court to enter into the merits of the orders passed previously. This Court finds that the Deputy Director of Consolidation has put the cart before the horse which has given rise to the instant order which is not sustainable in law.

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It is now well settled that while considering an application under Section 5 of the Limitation Act, the Court is required to look into the sufficiency of cause and while doing so, it is not required to look into the previous conduct of the parties or to assess the merits of the matter, that is to say if the principal orders of which recall is sought, are fine or justiciable in law then an application for recall accompanied by an application under Section 5 of the Limitation Act may be rejected.This cannot be the criteria to allow or reject the application for condonation of delay.

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This stage can only arrive once the delay is condoned and the recall application is allowed

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which will restore the proceedings/revision where the orders which are the subject matter of challenge before the revision can be seen. Since the Deputy Director of Consolidation has erroneously exercised its jurisdiction while entering into the merits of the controversy apparently it has been influenced by consideration which are not germane while considering an application under Section 5 of the Limitation Act.

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For the aforesaid reasons, this Court is of the clear view that the impugned order dated 20.09.2024 cannot be sustained and is accordingly set aside. The application for section 5 and the recall application shall stand restored on the board of the Deputy Director of Consolidation. The parties shall appear before the Deputy Director of Consolidation on 20.12.2024 and thereafter the application for section 5 shall be considered and decided afresh after affording a full opportunity of hearing to the parties but without granting any unnecessary adjournments. In case if the application is allowed thereafter an endeavour would be made by the revisional court to consider and decide the recall application within three weeks thereafter.

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It is made clear that the Court has not examined the case of either of the parties on merits and the impugned order has been set aside for the reasons aforesaid which is confined only to the examination of the impugned order on the touch stone of principles required to be followed while deciding an application under Section 5 of the Limitation Act 1963.

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With the aforesaid observations, the petition is allowed . There shall be no order as to costs.

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Order Date :- 2.12.2024 ank

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Digitally signed by :- ALI NEWAZ KHAN High Court of Judicature at Allahabad, Lucknow Bench

Riyaz Ahmad Khan and Others v. District Magistrate / District Deputy Director of Consolidation, Balrampur and Others

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Riyaz Ahmad Khan and Others v. District Magistrate / District Deputy Director of Consolidation, Balrampur and Others

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