Smt. Shakuntala Tiwary & Ors. v. The State of Bihar through Collector, Muzaffarpur

From the averments made by learned counsel for the parties and the statements made in the interlocutory application, it appears that genuine reasons have been shown by the petitioners as the sole respondent-petitioner had earlier filed Civil Review No. 164 of 2003 against both the orders dated 13.08.2003 and 18.08.2003 but subsequently the said petition was restricted on 03.03.2004 only against order dated 13.08.2003 due to the objection raised by the office. In the said facts and circumstances of the case, this interlocutory application is allowed and delay in the filing of the 2 Civil Review No.63 of 2004 is condoned.

2. So far the objection of the office that ad valorem court fee should be filed in the civil review petition is concerned, learned counsel for the petitioners relies upon a decision of this court in case of Damodar Prasad and others vs. Ram Charan Das and others, reported in A.I.R. 1957 Patna 143 in which it has been held that only when a decree is prepared and is challenged, ad valorem court fee has to be paid but here in the instant case no decree has been prepared on the basis of the impugned orders and hence only fixed court fee was to be paid which has already been paid in both the aforesaid cases. However, learned counsel for the opposite party submits that since not only the limitation petition but also the cross objection has been dismissed, the petitioners have to file ad valorem court fee. From the facts and circumstances of this case, it transpires that either in view of order dated 13.08.2003 or in view of order dated 18.08.2003 no decree has been prepared and hence there is no occasion for filing of ad-valorem court fee and the sole respondent- petitioner was justified in filing the said review petitions along with fixed court fee.

3. Heard learned counsel for the parties. From their averments as well as from the materials on record, it transpires that L.A. Case No. 101 of 1981 along with other analogous cases were decided by the learned Subordinate Judge-II-cum-Land Acquisition Judge, Muzaffarpur by his judgment and award dated 09.02.1993. It further transpires that against the said award the State of Bihar 3 through Collector, Muzaffarpur filed F.A. No. 378 of 1993 on

21.05.1993.

4. It further transpires that the sole respondent appeared in the said first appeal on 23.12.1999 along with his cross objection and interlocutory application for condoning the delay in the filing of the cross objection specifically stating that no notice of the first appeal was ever served upon him earlier and he could learn about the said appeal from other sources on 11.09.1999. It was also stated in the interlocutory application that he could not file the cross objection immediately thereafter because of his ailment regarding which certificates etc. were also annexed explaining the delay caused in the filing of the cross objection.

5. It is not in dispute that the appellant did not contradict the averments of the sole respondent and did not file any counter affidavit against the application for condoning delay. However, by order dated 13.08.2003 a Bench of this court dismissed the said application, which reads as follows:- “Heard both sides on the petition filed under section 5 of the Limitation Act to condone the delay in filing the cross objection. There does not appear any reasonable ground to condone the delay. In dismissed.” facts and circumstances, the petition

6. Against this order dated 13.08.2003, Civil Review No. 164 of 2003 has been filed by the sole respondent of the first appeal. Thereafter the said Bench of this court rejected the cross objection as time barred by order dated 18.08.2003, which reads as follows:- 4 “Seen the office report. Limitation petition filed for condonation of delay in filing the cross objection has been dismissed. Therefore, cross objection is rejected.” Against this order, the sole respondent of the first appeal has filed Civil Review No. 63 of 2004.

7. It is quite apparent from the application for condoning delay filed in the first appeal that specific statement has been given by the sole respondent with regard to non-service of notice, absence of knowledge, serious ailment comprehensively explaining the delay caused in the filing of the cross objection. It also transpires that the appellant did not deny the said statements of the sole respondent either by way of filing any counter affidavit in the first appeal, nor in its counter affidavits filed in the aforesaid civil review petitions and it has only been stated that the statements made by the sole respondent-petitioner has to be validly proved by him in the court.

8. From the aforesaid orders of this court, which are under challenge in the civil review petitions, are also silent about the said statements of the sole respondent of the first appeal and the materials produced by him. Learned counsel for the petitioners also states that as per the specific directions of the Hon’ble Apex Court such matters have to be decided by a speaking order which has not been done in the instant case.

9. In the said circumstances, both the civil review petitions are allowed, orders dated 13.08.2003 and 18.08.2003 are hereby reviewed and recalled. Furthermore, the application dated

23.12.1999 filed in the first appeal for condoning the delay in the 5 filing of the cross objection is hereby allowed and the said delay is condoned. harish/ ( S.N.Hussain, J.)