Shivlal Raut v. The State of Bihar

Patna High Court C.R. No.107 of 2012 (7) dt.29-01-2013 3 view to its final disposal. Whereas the delay in preferring C.R. No. 5 of 2012 was condoned by a bench of this Court while allowing I.A. No. 1794 of 2012 vide order passed on 14.03.2012, I.A. No. 6898 of 2012 has been filed praying for condonation of delay in filing the second Civil Revision application bearing C.R. No. 107 of 2012. The petitioner has explained the circumstances leading to filing of C.R. No. 107 of 2012 as also taken note of hereinabove and while explaining the delay occasioned in preferring C.R. No. 107 of 2012, a prayer has been made to condone the delay. Mr. Arora appearing for the opposite parties has not objected to the explanations given for the delay in preferring C.R. No. 107 of 2012. The delay in preferring Civil Revision No. 107 of 2012 are explanatory and this Court being satisfied with the same condones the delay occasioned in filing C.R. No. 107 of

2012. I.A. No. 6898 of 2012 is accordingly disposed of. Civil Revision No. 107 of 2012 with Civil Revision No. 5 of 2012 The issues which are subject matter of the two Civil Revision applications have already been discussed hereinabove, and requires no further reiteration. The facts of the case briefly stated is that a suit was filed by the petitioner bearing Title Suit No. 17 of 1993 seeking Patna High Court C.R. No.107 of 2012 (7) dt.29-01-2013 4 declaration of title over a plot bearing no. 151 of khata no. 393 situated in village Pirha, P.S. Babubarhi in the district of Madhubani admeasuring two bighas 19 kathas and two dhurs. The suit was decreed in favour of the petitioner vide judgment and decree dated 26.09.1995. The defendant-State preferred an appeal giving rise to Title Appeal No. 3 of 1996 and which was dismissed for non-prosecution by order passed on 22.07.1999. As a consequence of dismissal of the appeal, the title of the petitioner over the plot in question stood confirmed. As an attempt was made by the defendant-State to include the plot which was subject matter of the suit as a Sairat, the petitioner filed a Miscellaneous Case before the Additional Collector giving rise to Miscellaneous Case No. 80 of 2000 preempting such action by the State and which was allowed by the Additional Collector by order passed on

26.11.2001. As the order was not being carried out, the petitioner approached the Circle Officer, Babubarhi and who recommended the deletion of plot in question from the list of Sairat. Again the deletion did not take place rather the Additional Collector by a letter dated 10.07.2008 directed the Circle Officer to abide by the directions of the Collector. As a consequence of the intra departmental communications as to the issue raised by the petitioner led to filing of a restoration application by the State giving rise to Miscellaneous Case No. 3 of 2010 filed for Patna High Court C.R. No.107 of 2012 (7) dt.29-01-2013 5 restoration of Appeal No. 3 of 1996 which stood dismissed on

22.07.1999. As the restoration application was filed 11 years after the dismissal of the Title Appeal, hence it was accompanied with an application under Section 5 of Limitation Act, 1963 praying for condonation of delay in seeking restoration. A detailed response was filed by the petitioner objecting not only to the restoration but also to the reasons assigned in the application filed for condonation of delay. The restoration application along with the petition for condonation of delay was considered by the appellate court on 06.05.2011 when the appellate court even while taking note of the time petition filed by the petitioner, proceeded upon the report of the Saristedar and after hearing learned counsel for the appellant-State while condoning the delay in preferring the restoration application, admitted the same. It is this order dated 06.05.2011 of condonation of delay and of admission of the restoration application which is put to question in C.R. No. 5 of 2012. The petitioner thereafter filed an application on

27.06.2011 praying for recall of the order dated 06.05.2011 and which has been rejected by order dated 27.08.2011 by the appellate court and while doing so the appellate court has observed that the issue of delay shall be considered at the stage of final decision in the Miscellaneous Case. The petitioner being aggrieved by the order has preferred the second Civil Revision Patna High Court C.R. No.107 of 2012 (7) dt.29-01-2013 6 application which is subject matter of C.R. No. 107 of 2012. Mr. Anant Kumar Bhaskar, learned counsel appearing for the petitioner has made a very short submissions. He submits that even while the appellate court has taken note of the prayer for adjournment and even while a response had been filed to the restoration application by the petitioner objecting to the reasons assigned for the delay of 11 years that had occasioned in filing the restoration application, the appellate court mechanically proceeded to condone the delay on a mere report of the Saristedar without taking note of the response of the petitioner and which was followed by the admission of the restoration application. He submits that even though the learned appellate court while rejecting his application for recall has observed that the issue of delay shall be considered at the stage of final disposal of the restoration application but that shall not undo the error committed by the appellate court in not hearing the petitioner while condoning the delay. It is further submitted that the very basis for condonation of delay is founded on incorrect facts and the petition for condonation suffering from misrepresentation of facts, was fit to be rejected outrightly by the appellate court in view of the following judicial pronouncements: (i) (2008) 17 SCC 448, paragraph 14 (Pundlik Jalim Patil vs. Executive Engineer, Jalgaon Medium Project & Patna High Court C.R. No.107 of 2012 (7) dt.29-01-2013 7 another) (ii) 2012(1) PLJR 106 (State of Bihar vs. Bhatni Devi) (iii) 2012(2) PLJR (SC) 371 (Office of the Chief Post Master General & Ors. vs. Living Media India Ltd. & Anr.) He with reference to the judicial pronouncements submits that where the Supreme Court has held that a false plea taken in a petition of condonation of delay is itself sufficient to reject the application itself, learned court below ought to have considered this relevant aspect of the matter. He thus submits that where the grounds assigned for condonation of delay itself is based upon incorrect facts, following the Supreme Court pronouncement, the petition for condonation was fit to be rejected and which automatically would have resulted in dismissal of the restoration application. The argument of Mr. Bhaskar has been contested by Mr. Arora appearing on behalf of the appellant-State in the two Civil Revision applications who are opposite parties herein. Mr. Arora with reference to the order dated 27.08.2011 passed on the recall application filed by the petitioner submits that where the appellate court below itself has accepted the plea of the petitioner of considering the objection at the stage of final hearing of the case, the orders impugned do not warrant any interference. He further Patna High Court C.R. No.107 of 2012 (7) dt.29-01-2013 8 submits that the Miscellaneous Case having been admitted for hearing on merits and disposal, the clock may not be reverted back and as the petitioner himself has participated in the proceedings and has also cross-examined one of the witnesses led by the State, the prayer of the petitioner may not be entertained. He further submits that the plea of falsity is yet to be determined and would be conditional upon the evidence that would be led by the parties during the course of hearing of the Miscellaneous Case. I have heard learned counsel for the parties and have perused the materials on record. That the petitioner was required to be heard in the matter of condonation of delay has been recognized by the appellate court and which is manifest from the order dated 27.08.2011 itself when the appellate court below has observed that the issue of delay in filing the restoration application shall be considered at the time of passing of the final order. An issue of delay is a mixed issue of law and facts and needs to be adjudicated unless it is manifest from a bare perusal of the application itself. In the present case although it is the case of the plaintiff-petitioner that the defendants had all along knowledge about the dismissal of their appeal, the position is being contested and it is in this background that Mr. Arora has submitted that unless they are permitted to lead evidence in support of their plea of absence of knowledge about dismissal of the appeal, their Patna High Court C.R. No.107 of 2012 (7) dt.29-01-2013 9 contention cannot be rejected outrightly. Mr. Bhaskar in response submits that if the delay itself is not fit to be condoned and the reasons assigned itself are found to be factually incorrect, it would be an exercise in futility to enter into the merits of the restoration application. Having observed as such it is equally relevant to note that the appellate court has proceeded to adjudicate upon the restoration application and in which process the examination of witnesses has started and one of them have been discharged. Any attempt by this Court to interfere with the adjudication would be interfering with the adjudicatory process of the appellate court. As it is a case of restoration this Court would appreciate that not many witnesses would be required to be examined in the proceedings and would also appreciate that the evidence insofar as the delay as well as the merits of the restoration are concerned cannot be segregated altogether. Thus appreciating the contentions of the petitioner as also taking note of the fact that the trial court has admitted that the objection raised by the petitioner on the condonation of delay requires an adjudication and taking note of the admitted fact that the Miscellaneous Case after its admission has proceeded to examine witnesses, this Court without interfering with the judicial process disposes of this application with direction to the trial court to dispose of the Miscellaneous Case in accordance with law Patna High Court C.R. No.107 of 2012 (7) dt.29-01-2013 10 but before the Court proceeds to record its decision on the merits of the restoration application, it shall be under a duty to adjudicate upon the issue of limitation after affording opportunity to both the parties to lead evidence on the issue raised in support of their respective case and only upon recording a finding on the limitation petition. As the matter has been lingering since quite sometime this Court would expect a final decision in the Miscellaneous proceedings within a period of six months from the date of receipt/production of a copy of this order without giving adjournment to either of the parties. The order dated 06.05.2011 stands modified to that extent. With the aforesaid observation and direction applications stand disposed of. S.Sb/- (Jyoti Saran, J)