Umesh Singh v. Mrigavati Devi) and impugned order dated

1. Heard Mr. Adya Prasad Tewari, learned counsel for the petitioner, Mr. Satya Priya Mishra, holding the brief of Mr. M.J. Akhtar, learned counsel for respondent no.4 and Mr. Abhishek Kumar Srivastava, learned Addl. C.S.C. for the state-respondents.

2. Brief facts of the case are that the proceeding under Section-9A (2) of U.P.Consolidation of Holdings Act, 1953 (hereinafter referred to as U.P.C.H.Act) initiated at the instance of the petitioner for separation of his 1/2 share of Khata No- 68 of 654 was decided vide order dated 8.4.2008. Time barred restoration application dated 28.12.2008 filed by respondent No-4 was rejected vide order dated 28.7.2012. Respondent No-4 again filed a time barred restoration application dated 25/29.8.2014 to recall the order dated 8.4.2008/28.7.2012 which is still pending for disposal before respondent No-3. An application dated 22.10.2016 filed by petitioner to decide the limitation question first has been rejected vide order dated 17.12.2016. Revision filed by petitioner has been dismissed vide order dated 31.1.2025. Hence this writ petition for the following reliefs:- (i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 31.1.2025 passed by the Deputy Director of Consolidation, Kushinagar in Revision No.635 of 2017 (Umesh Singh vs. Mrigavati Devi) and impugned order dated 17.12.2016 passed by the Consolidation Officer, Kasia, Kushinagar in Restoration Case No.1498, arising out of the proceeding under Section 9-A(2) of the U.P. C.H. Act (contained as Annexure Nos. 8 to 10 to his writ petition). (ii) Issue a writ, order or direction in the nature of mandamus, commanding the Consolidation Officer, Kasia to hear and decide the question of limitation in moving restoration application dated 25/29.8.2014 in Restoration Case No.1498, under Section 9-A(2) of the U.P. C.H. Act before proceeding to hear and decide the restoration application dated 25/29.8.2014.

3. Counsel for the petitioner submitted that a time-barred restoration application dated 25/29.8.2014 has been filed on behalf of respondent no.4 against the order dated 8.4.2008/28.7.2012 wherein an objection was filed on behalf of the petitioner to the effect that restoration application should be rejected on the ground of limitation as well as on the ground of maintainability. He further submitted that petitioner also filed an application dated 22.10.2016 in the aforementioned restoration proceeding to the effect that the delay condonation matter should be heard first, thereafter, the restoration matter should be heard in accordance with law. He submitted that the Consolidation Officer has rejected the petitioner's application vide order dated 17.12.2016 and the revision filed by the petitioner has also been dismissed in arbitrary manner. He also placed reliance on the Division Bench decision of this Court reported in 2022 (155) R.D.309, Ram Prakash Vs. Deputy Director of Consolidation and Others in support of his argument.

4. Sri Satya Priya Mishra, learned counsel holding the brief of Sri M.J. Akhtar learned Counsel for respondent no.4 submitted that there is no illegality in the impugned orders passed by the Consolidation Officer and the Deputy Director of Consolidation. He further submitted that the restoration application has been filed along with prayer for condonation of delay and the court concerned is proceeding in accordance with law. He submitted that the writ petition should be dismissed and the Consolidation Officer should be directed to decide the restoration/delay condonation matter in accordance with law expeditiously.

5. I have considered the arguments advanced by learned counsel for the parties and perused the records.

6. There is no dispute about the fact that a time-barred restoration application dated 25/29.8.2014 filed on behalf of respondent no.4 against is pending before respondent the order 8.4.2008/28.7.2012 no.3/Consolidation Officer.

7. Perusal of paragraph Nos. 19, 20, 21, 22 and 23 of the judgment rendered in Ram Prakash (Supra) will be relevant which are as follows:- "19. We are not going into the issue as to whether an order passed by appellate authority on an application seeking condonation of delay is an interim order or final as the same has not been referred for consideration by the Division Bench. Different situations may arise in an appeal filed along with application seeking condonation of delay. Firstly, the application for seeking condonation of delay may be dismissed. As a consequence thereof, the appeal will also fail. Another situation may be that application seeking condonation of delay is allowed and thereafter the appeal may either be accepted or rejected.

20. If any statute provides certain period for filing of appeal, an appeal filed beyond the time limit will certainly be not entertained. If the provisions of 1963 Act are applicable and party is entitled to seek condonation of delay in filing appeal, an application has to be filed specifying the grounds on which delay in filing the appeal is sought to be condoned. It is only after that the application is allowed, the appeal can be entertained and heard on merits. Before that the appeal cannot be taken up and considered on merits.

21. As far as the issue regarding hearing of the application seeking condonation of delay and the appeal simultaneously is concerned, in our view, firstly the application has to be considered. Only thereafter, the appeal can be considered on merits but there is nothing in law which requires hearing of appeal on merits to be postponed mandatorily after acceptance of the application seeking condonation of delay. Both can be taken up on the same day. However, the appeal has to be heard on merits only after the application seeking condonation of delay has been accepted.

22. In view of the aforesaid discussion, we answer the question referred to the Division Bench that an application seeking condonation of delay has to be decided first before the appeal is taken up for hearing on merits. However, it can be on the same day and there is no requirement of adjourning the hearing of appeal on merits after acceptance of the application seeking condonation of delay.

23. Let the matter be listed before learned Single Judge as per roster for further proceedings in the case."

8. The perusal of the above quoted Division Bench judgment of this Court demonstrate that a time-barred proceeding is to be decided in proper manner, i.e., the delay condonation matter should be decided first, thereafter, the merit questions can be examined.

9. In the instant matter restoration and delay condonation matter are still pending for disposal before respondent No-3/ Consolidation Officer as such the same should be disposed of by respondent No-3/Consolidation Officer in the light of ratio of law laid down by this Court in Ram Prakash (Supra) as quotod above i.e. delay condonation matter first & merrit after delay condonation matter however both can be on the same day.

10. Considering the entire facts and circumstances of the case including the ratio of law laid down by the Division Bench judgment of this Court in the case of Ram Prakash (supra), the instant writ petition is disposed of, with the direction to respondent no.3/Consolidation Officer, Kasia, Kushinagar to pass appropriate order on delay condonation matter first, thereafter, proceed to hear and decide the restoration proceeding in accordance with law. The aforementioned exercise shall be concluded expeditiously, preferably within a period of of three months from the date of production of the certified copy of the order. Order Date :- 20.3.2025 C.Prakash CHANDRA PRAKASH High Court of Judicature at Allahabad

1. Heard Mr. Adya Prasad Tewari, learned counsel for the petitioner, Mr. Satya Priya Mishra, holding the brief of Mr. M.J. Akhtar, learned counsel for respondent no.4 and Mr. Abhishek Kumar Srivastava, learned Addl. C.S.C. for the state-respondents.

2. Brief facts of the case are that the proceeding under Section-9A (2) of U.P.Consolidation of Holdings Act, 1953 (hereinafter referred to as U.P.C.H.Act) initiated at the instance of the petitioner for separation of his 1/2 share of Khata No- 68 of 654 was decided vide order dated 8.4.2008. Time barred restoration application dated 28.12.2008 filed by respondent No-4 was rejected vide order dated 28.7.2012. Respondent No-4 again filed a time barred restoration application dated 25/29.8.2014 to recall the order dated 8.4.2008/28.7.2012 which is still pending for disposal before respondent No-3. An application dated 22.10.2016 filed by petitioner to decide the limitation question first has been rejected vide order dated 17.12.2016. Revision filed by petitioner has been dismissed vide order dated 31.1.2025. Hence this writ petition for the following reliefs:- (i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 31.1.2025 passed by the Deputy Director of Consolidation, Kushinagar in Revision No.635 of 2017 (Umesh Singh vs. Mrigavati Devi) and impugned order dated 17.12.2016 passed by the Consolidation Officer, Kasia, Kushinagar in Restoration Case No.1498, arising out of the proceeding under Section 9-A(2) of the U.P. C.H. Act (contained as Annexure Nos. 8 to 10 to his writ petition). (ii) Issue a writ, order or direction in the nature of mandamus, commanding the Consolidation Officer, Kasia to hear and decide the question of limitation in moving restoration application dated 25/29.8.2014 in Restoration Case No.1498, under Section 9-A(2) of the U.P. C.H. Act before proceeding to hear and decide the restoration application dated 25/29.8.2014.

3. Counsel for the petitioner submitted that a time-barred restoration application dated 25/29.8.2014 has been filed on behalf of respondent no.4 against the order dated 8.4.2008/28.7.2012 wherein an objection was filed on behalf of the petitioner to the effect that restoration application should be rejected on the ground of limitation as well as on the ground of maintainability. He further submitted that petitioner also filed an application dated 22.10.2016 in the aforementioned restoration proceeding to the effect that the delay condonation matter should be heard first, thereafter, the restoration matter should be heard in accordance with law. He submitted that the Consolidation Officer has rejected the petitioner's application vide order dated 17.12.2016 and the revision filed by the petitioner has also been dismissed in arbitrary manner. He also placed reliance on the Division Bench decision of this Court reported in 2022 (155) R.D.309, Ram Prakash Vs. Deputy Director of Consolidation and Others in support of his argument.

4. Sri Satya Priya Mishra, learned counsel holding the brief of Sri M.J. Akhtar learned Counsel for respondent no.4 submitted that there is no illegality in the impugned orders passed by the Consolidation Officer and the Deputy Director of Consolidation. He further submitted that the restoration application has been filed along with prayer for condonation of delay and the court concerned is proceeding in accordance with law. He submitted that the writ petition should be dismissed and the Consolidation Officer should be directed to decide the restoration/delay condonation matter in accordance with law expeditiously.

5. I have considered the arguments advanced by learned counsel for the parties and perused the records.

6. There is no dispute about the fact that a time-barred restoration application dated 25/29.8.2014 filed on behalf of respondent no.4 against is pending before respondent the order 8.4.2008/28.7.2012 no.3/Consolidation Officer.

7. Perusal of paragraph Nos. 19, 20, 21, 22 and 23 of the judgment rendered in Ram Prakash (Supra) will be relevant which are as follows:- "19. We are not going into the issue as to whether an order passed by appellate authority on an application seeking condonation of delay is an interim order or final as the same has not been referred for consideration by the Division Bench. Different situations may arise in an appeal filed along with application seeking condonation of delay. Firstly, the application for seeking condonation of delay may be dismissed. As a consequence thereof, the appeal will also fail. Another situation may be that application seeking condonation of delay is allowed and thereafter the appeal may either be accepted or rejected.

20. If any statute provides certain period for filing of appeal, an appeal filed beyond the time limit will certainly be not entertained. If the provisions of 1963 Act are applicable and party is entitled to seek condonation of delay in filing appeal, an application has to be filed specifying the grounds on which delay in filing the appeal is sought to be condoned. It is only after that the application is allowed, the appeal can be entertained and heard on merits. Before that the appeal cannot be taken up and considered on merits.

21. As far as the issue regarding hearing of the application seeking condonation of delay and the appeal simultaneously is concerned, in our view, firstly the application has to be considered. Only thereafter, the appeal can be considered on merits but there is nothing in law which requires hearing of appeal on merits to be postponed mandatorily after acceptance of the application seeking condonation of delay. Both can be taken up on the same day. However, the appeal has to be heard on merits only after the application seeking condonation of delay has been accepted.

22. In view of the aforesaid discussion, we answer the question referred to the Division Bench that an application seeking condonation of delay has to be decided first before the appeal is taken up for hearing on merits. However, it can be on the same day and there is no requirement of adjourning the hearing of appeal on merits after acceptance of the application seeking condonation of delay.

23. Let the matter be listed before learned Single Judge as per roster for further proceedings in the case."

8. The perusal of the above quoted Division Bench judgment of this Court demonstrate that a time-barred proceeding is to be decided in proper manner, i.e., the delay condonation matter should be decided first, thereafter, the merit questions can be examined.

9. In the instant matter restoration and delay condonation matter are still pending for disposal before respondent No-3/ Consolidation Officer as such the same should be disposed of by respondent No-3/Consolidation Officer in the light of ratio of law laid down by this Court in Ram Prakash (Supra) as quotod above i.e. delay condonation matter first & merrit after delay condonation matter however both can be on the same day.

10. Considering the entire facts and circumstances of the case including the ratio of law laid down by the Division Bench judgment of this Court in the case of Ram Prakash (supra), the instant writ petition is disposed of, with the direction to respondent no.3/Consolidation Officer, Kasia, Kushinagar to pass appropriate order on delay condonation matter first, thereafter, proceed to hear and decide the restoration proceeding in accordance with law. The aforementioned exercise shall be concluded expeditiously, preferably within a period of of three months from the date of production of the certified copy of the order. Order Date :- 20.3.2025 C.Prakash CHANDRA PRAKASH High Court of Judicature at Allahabad