Hon’ble Ran Vijai Singh, J.—Heard Sri Nipun Singh, learned counsel for the petitioner and learned standing counsel for the State-respondents.

2. Through this writ petition, prayer has been made to issue a writ of certiorari quashing the order dated 9.9.2016 passed by the Additional Collector (Finance and Revenue) Hapur by which the earlier order dated 23.5.2016 passed in Case No. D2016117300171 (State v. Sunil Kumar) has been set aside and 14.9.2016 has been fixed for hearing and evidence.

3. While assailing the aforesaid order, learned counsel for the petitioner has made following submissions :

(i) The order impugned is patently illegal for the reason that the recall application itself was not maintainable as the counsel for the applicant seeking recall was heard, therefore the order was not ex parte order.

(ii) Alongwith the recall application, an application under Section 5 of Limitation Act 1908 was filed on 29.7.2016 but without disposing of the application filed under Section 5 of the Limitation Act, the application seeking recall of the order dated 23.5.2016 has been allowed illegally.

(iii) Since no ground was taken in the application that on 23.5.2016, the counsel for the applicant has not argued the case, therefore the recall could not be sought and in absence of such assertion, recall application could not be allowed.

4. The facts of this case in brief are that the against the petitioner, a proceeding under Section 47-A of Indian Stamp Act,1899 was initiated, which was numbered as Stamp Case No. D2016117300171. The petitioner, herein, has filed his objection and after due deliberation, the Additional Collector (Finance and Revenue, vide order dated 23.5.2016, has dropped the proceeding after hearing both the parties by holding that there is no deficiency of the stamp duty. Thereafter on 29.7.2016, the State respondents through its counsel has filed an application seeking recall of the order dated 23.5.2016 on the ground that he was unaware of the fact that any order was passed on 23.5.2016. Alongwith the aforesaid application, an application under Section 5 of Limitation Act for condoning the delay was also filed. The Additional Collector (Finance and Revenue) has set aside the order dated 23.5.2016 and restored the case to its original number fixing 14.9.2016 for hearing and evidence.

5. Learned counsel for the applicant contended that the application was barred by time and there was an application for condonation of delay, therefore unless the delay was condoned, the restoration application could not be heard and allowed.

6. I find substance in the submissions of learned counsel for the petitioner as once the application under Section 5 of Limitation Act was filed, the restoration application could not be decided on merit unless the delay was condoned and the application filed under Section 5 of Limitation Act was allowed or the finding was recorded to the effect that there was no need of filing Section 5 application and the application was within time.

7. Here in this case, admittedly, the recall application was barred by time and it was accompanied with an application for condonation of delay, therefore, unless the delay was condoned, the recall application could not have been decided.

8. The view taken by me finds support from the decision of the Apex Court in Noharlal Verma v. District Cooperative Central Bank Ltd. Jagdalpur, (2008) 14 SCC 445, where the Apex Court has held as under :

1. “32. Now, limitation goes to the root of the matter. If a suit, appeal or application is barred by limitation a Court or an adjudicating authority has no jurisdiction, power or authority to entertain such suit, appeal or application and to decide it on merits.

33. Sub-section (1) of Section 3 of the Limitation Act, 1963 reads as under:

“3. Bar of Limitation.—(1) Subject to the provisions contained in Sections 4 to 24 (inclusive) every suit instituted, appeal preferred, and application made after the prescribed period s