Application Seeking Condonation Of Delay Has To Be Decided Before Hearing On Merits Of Appeal: Allahabad High Court Answers Reference

The Allahabad High Court, sitting in Lucknow, recently held that where Limitation Act, 1963 is applicable to a statute and the party is entitled to seek condonation of delay in filing statutory appeal, the application seeking the latter relief has to be considered by the Court first and only thereafter, the appeal can be considered on merits.While answering a reference made by a single judge in relation to the U.P. Consolidation of Holdings Act, 1953, the division bench of Chief Justice Rajesh Bindal and Justice Pritinker Diwaker held,"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."The reference was made by a single judge bench for the consideration of an issue that if an order has been challenged before the consolidation authority is barred by the period of limitation as provided under the statute along with an application for condonation of delay then in that circumstances whether the application for condonation of delay under Section 5 of the Limitation Act should be decided first or the same can been decided along with merits of the case? The instant matter was referred to the Larger bench in view of conflicting decisions rendered by two Single Benches of the High Court.In Dev Narain Singh v. Dy. Director of Consolidation, Sultanpur, the view expressed by the single bench was that it is not required for the appellate authority to first decide the application for delay condonation and then hear the merits of the appeal. Whereas in Girja Shanker and others v. Deputy Director of Consolidation and others, it was opined that it is mandatory for the appellate authority to first decide the application seeking delay condonation and then set a later date to hear the merits of the appeal, so as not to deprive the party aggrieved, if any, of his right to avail of the remedy available to him against the order passed on the application filed under Section 5 of the Limitation Act, 1963. The counsel for the petitioner argued that if an appeal is filed after the 21 days period specified in Section 11 of the 1953 Act, the application for condonation of delay must be decided first, and the appeal must then be adjourned for a hearing on the merits. It cannot be done simultaneously. Whereas, the counsel for the State relied on the judgement of the apex court in Ramesh Chandra Sankla Vs. Vikram Cement (2008) 14 SCC 58 where it was observed that Court should decide all the issues and not merely a preliminary one, to check the delay in the course of justice. Findings At the outset, the court referred to the case of Bhagwat and others Vs. Deputy Director of Consolidation and others (1990) RD 162, where a Single Bench of the High Court had opined that an order deciding an application seeking condonation of delay cannot be said to be interlocutory and revision against that order was maintainable. An application for condonation of delay has to be decided first by the appellate authority and in the case allowed, the appeal may be decided on merits on a subsequent date. The court also relied on Budh Sagar and others Vs. Jai Prakash and others (2013) 1 ADJ 381, a Single Bench of this Court opined that the appellate authority is to pass the order on the application seeking condonation of delay first and thereafter proceed to hear the case on merits.The bench expressed that it is not inclined to go 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.It then held,"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."The Court added that 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."In view of...

Application Seeking Condonation Of Delay Has To Be Decided Before Hearing On Merits Of Appeal: Allahabad High Court Answers Reference

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