(C.M. Application No. 121837 of 2017)

By the Court.—Heard Shri Manish Kumar, learned counsel for the review-applicant, Shri Vivek Kumar Shukla, learned Standing Counsel and perused the record.

2. Facts in brief of the present case are that review-applicant/Salman Ahmad who was working on the post of Gram Panchayat Adhikari under opposite party No. 3/Director, Panchayat Raj Officer, Pratapgarh, his services were terminated vide order dated 31.12.1986.

3. Aggrieved by the said order, he approached this Court by filing Writ Petition No. 3382 (SS) of 1997. The said writ petition alongwith three other petitions namely Writ Petition Nos. 359 (SS) of 1995, 120 (SS) of 1993 and 1354 (SS) of 1992 were allowed vide order dated 20.7.2000 passed by this Court, challenged by State of U.P. through Secretary, Panchayat Raj U. P., Civil Secretariat, Lucknow and others by filing Special Appeal No. 18 of 2001 at a belated stage.

4. On an objection raised by learned counsel for review-applicant, a Division Bench of this Court had passed an order dated 22.2.2012, which reads as under :

“Learned counsel for the appellants is granted three weeks’ further time to file better affidavit explaining the delay in filing the appeal.

The matter shall appear after expiry of the aforesaid period.”

5. Again in this regard, on 2.5.2012, this Court had passed an order, which reads as under :

“Learned counsel for the appellant, as a last indulgence, is granted two weeks’ further time to file better affidavit explaining the delay in filing the appeal.

List thereafter.”

6. However, the appellant has not complied the said orders but by order dated 30.10.2017, Special Appeal No. 18 of 2001 has been allowed.

7. In view of the above said factual background, the present review-application has been filed for recall of the order dated 30.10.2017.

8. Shri Manish Kumar, learned counsel for the review-applicant while pressing the review-application submits that the orders dated 22.2.2012 as well as 2.5.2012 have been passed in the special appeal thereby directing the appellant to file a better affidavit explaining the delay, then the appellant should comply the same and thereafter, the matter should be decided on merit. As the said act has not been done, so the order dated 30.10.2017 is contrary to law, liable to be set aside and special appeal be restored to its original number.

9. In support of his argument, he has placed reliance on the judgment given by Hon’ble the Apex Court in the case of V.M. Salgaocar and Bros. v. Board of Trustees of Port of Mormugao and another, (2005) 4 SCC 613, wherein it has been held as under :

“The mandate of Section 3 of Limitation Act is that it is the duty of the Court to dismiss any suit instituted after the prescribed period of limitation irrespective of the fact that limitation has not been set up as a defence. If a suit is ex facie barred by the Law of Limitation, a Court has no choice but to dismiss the same even if the defendant intentionally has not raised the plea of limitation.

This Court in Manindra Land & Building Corporation Ltd. v. Bhutnath Banerjee and others, AIR 1964 SC 1336, held as under :

“Section 3 of the Limitation Act enjoins a Court to dismiss any suit instituted, appeal preferred and application made, after the period of limitation prescribed therefor by Schedule I irrespective of the fact whether the opponent had set up the plea of limitation or not. It is the duty of the Court not to proceed with the application if it is made beyond the period of limitation prescribed. The Court had no choice and if in construing the necessary provision of the Limitation Act or in determining which provision of the Limitation Act applies, the subordinate Court comes to an erroneous decision, it is open to the Court in revision to interfere with that conclusion as that conclusion led the Court to assume or not to assume the jurisdiction to proceed with the determination of that matter.”

10. In rebuttal, Shri Vivek Kumar Shu