Mukesh Kumar v. Atul Kumar and
Case Details
Court No. - 64 Case :- CIVIL MISC REVIEW APPLICATION No. - 153 of 2024 Applicant :- Mukesh Kumar Opposite Party :- Atul Kumar And 6 Others Counsel for Applicant :- Gautam,Pankaj Satsangi,Ravi Kant Surolia Counsel for Opposite Party :- C.S.C.,Sher Bahadur Singh Hon'ble Rajeev Misra,J. (Ref: Order on the Delay Condonation Application)- 1. Heard Mr. R. K. Surolia, the learned counsel for review petitioner, Mr. Sidharth Shukla, the learned counsel representing private respondents 1 to 4, Mr. S. B. Singh, the learned counsel representing respondent-5 Gaon Sabha and Mr. Abhishek Shukla, Additional Chief Standing Counsel for respondents 6 and 7. 2. Perused the record. 3. This review application has been filed seeking review of the judgement and order dated 19.01..2024 passed in Civil Misc. Writ -C No. 40459 of 2023 (Mukesh Kumar Vs. Atul Kumar and 7 others) whereby the aforementioned writ petition was dismissed. For ready reference the order dated 19.01.2024 is reproduced herein under:
Legal Reasoning
"1. Heard Mr. Gautam, the learned counsel for petitioner, the learned Standing Counsel for Respondents 6, 7 and 8 and Mr. S.B. Singh, the learned counsel representing Respondent 5. 2. Perused the record. 3. Challenge in this writ petition is to the order dated 12.07.2023 passed by Respondent 7, Additional Commissioner (Administration), Bareilly Division, Bareilly whereby the restoration application dated 10.02.2010 filed by the petitioner against the order dated 28.09.2005 has been rejected. 4. At the very outset, the learned Standing Counsel for Respondents 6, 7 and 8 submits that the restoration application filed by the petitioner against the order dated 28.09.2005 and 10.02.2010 was hopelessly barred by limitation. However, no delay condonation application under Section 5 of the Limitation Act was filed seeking condonation of delay in filing restoration application. As no delay condonation application was filed, the restoration application filed by the petitioner was misconceived and therefore, liable to be dismissed. 5. In view of above, he submits that no illegaility has been committed by Respondent 7, Additional Commissioner (Administration), Bareilly Division, Bareilly in rejecting the restoration application, filed by the petitioner. 6. When confronted with above, the learned counsel for petitioner fairly submits that no delay condonation application in terms of Section 5 of the Limitation Act was filed. 7. In view of above, this Court finds that no illegality has been committed by Respondent 7, Additional Commissioner (Administration), Bareilly Division, Bareilly in passing the order impugned. 8. As a result, present writ petition fails and is liable to be dismissed. 9. It is accordingly dismissed. Order Date :- 19.1.2024 " 4. Present review application came up for orders on 08.04.2024. Since the review application was filed beyond the period of limitation, therefore, an application under Section 5 of Limitation Act was also filed seeking condonation of delay in filing the review application. Accordingly, vide order dated 08.04.2024, this court issued notices on the delay condonation application. The order dated 08.04.2024 reads as under: "Civil Misc. Delay Condonation Application No.1 of 2024. 1. Heard Mr. Ravi Kant Surolia, the learned counsel for applicant, the learned standing counsel representing State-resondent-6 and Mr. Sher Bahadur Singh, the learned counsel representing respondent-5. 2. Issue notice to respondents 1, 2, 3 and 4. Notice shall be made returnable on 29.04.2023. 3. Put up again as fresh on 06.05.2024. Order Date :- 8.4.2024 " 5. No counter affidavit has been filed by any of the respondents in opposition to the Delay Condonation Application on the Review Application. 6. Having heard the learned counsel for review petitioner, Mr. Sidharth Shukla, the learned counsel representing private respondents 1 to 4, Mr. S. B. Singh, the learned counsel representing respondent-5 Gaon Sabha and Mr. Abhishek Shukla, Additional Chief Standing Counsel, the learned counsel representing respondents 6 and 7 and upon perusal of record, this Court finds that the delay in filing the present review application has been sufficiently explained. As such, there is no deliberate negligence or latches on the part of present application in filing the review application. 7. Considering the above, the delay in filing the present review application is liable to be condoned. 8. It is accordingly condoned. 9. The delay condonation application is allowed. (Ref: Order on the Review Application)- 1. Heard Mr. R. K. Surolia, the learned counsel for review petitioner, Mr. Sidharth Shukla, the learned counsel representing private respondents 1 to 4, Mr. S. B. Singh, the learned counsel representing respondent-5 Gaon Sabha and Mr. Abhishek Shukla, Additional Chief Standing Counsel for respondents 6 and 7. 2. This review application has been filed seeking review of the judgement and order dated 19.01..2024 passed in Civil Misc. Writ -C No. 40459 of 2023 (Mukesh Kumar Vs. Atul Kumar and 7 others) whereby the aforementioned writ petition was dismissed. 3. Perusal of order dated 19.01.2024 will go to show that aforementioned writ petition filed by petitioner is directed against the order dated 12.07.2023 passed by Additional Commissioner (Administration) Barely Division, Bareilly whereby restoration application dated 10.02.2010 filed by petitioner against the earlier order dated 28.09.2005 was rejected. 4. The restoration application was rejected by the Authority concerned primarily on the ground that since there is delay in filing the restoration application and no delay condonation application under Section 5 of Limitation Act has been filed seeking condonation of delay in filing the restoration application, therefore, in the absence of above, the restoration application is misconceived. 5. Mr. R. K. Surolia, the learned counsel for review petitioner contends that the Apex Court, in the Case of Sesh Nath Singh Vs. Baidhyabati Sheoraphuli Cooperative Bank Ltd.< 2021 LiveLaw SC 177 (Civil Appeal No. 9198 of 2021), has held as under: "....... delay can be condoned irrespective of whether there is any formal application, if there are sufficient material on record disclosing sufficient cause for the delay " 6. On the above premise, the learned counsel for review petitioner therefore submits that since there was sufficient material on record, therefore, the delay could have been condoned by the Additional Commissioner (Administrative) Bareilly Division, Bareilly himself ever in the absence of a delay condonation application under Section 5 of the Limitation Act. In view of above, the view taken to the contrary by the authority concerned, is, therefore, not sustainable in law. He, therefore, contends that the order under review being contrary to the law laid down by the Supreme Court is, therefore, liable to be reviewed by this Court. 7. Mr. Sidharth Shukla, the learned counsel representing private respondents 1 to 4, Mr. S. B. Singh, the learned counsel representing respondent-5 Gaon Sabha and Mr. Abhishek Shukla, Additional Chief Standing Counsel, the learned counsel representing respondents 6 and 7 could not dislodge the legal submission urged by the learned counsel for review petitioner. 8. Having heard Mr. R. K. Surolia, the learned counsel for review petitioner, Mr. Sidharth Shukla, the learned counsel representing private respondents 1 to 4, Mr. S. B. Singh, the learned counsel representing respondent-5 Gaon Sabha and Mr. Abhishek Shukla, Additional Chief Standing Counsel for respondents 6 and 7 and considering the judgement of Supreme Court as noted herein above, this Court finds that order under review was passed by this Court without considering the aforementioned judgement. Since the delay can be condoned by Court even in the absence of an application under Section 5 of the Limitation Act provided sufficient material on record, the view taken by this Court, vide earlier order is therefore, against aforementioned judgement of the Supreme Court. Consequently, there is an error apparent on the face of record. 9. In view of the discussion made above, the present review petition succeeds and is liable to be allowed. 10. It is, accordingly, allowed. 11. The judgement and order dated 19.01..2024 passed in Civil Misc. Writ -C No. 40459 of 2023 (Mukesh Kumar Vs. Atul Kumar and 7 others) is liable to be recalled. 12. It is, accordingly, reviewed and recalled.
Decision
13. The writ petition is restored to its number and status. 14. Mr. Sidharth Shukla, the learned counsel representing private respondents 1 to 4, Mr. S. B. Singh, the learned counsel representing respondent-5 Gaon Sabha and Mr. Abhishek Shukla, Additional Chief Standing Counsel for respondents 6 and 7 pray for and are granted four weeks' time to file their respective counter affidavits. Petitioner will have one week thereafter to file rejoinder affidavit. 15. Put up again as fresh on 12.08.2024 before appropriate Bench. 16. Matter shall not be treated as tied up or part heard to this Bench. Order Date :- 8.7.2024 YK