An application for condonation of delay must be decided before the merit of the appeal is addressed, ensuring compliance with procedural rules.

JUDGMENT :

Saurabh Shyam Shamshery, J.

1. Heard Sri Jawad Tariq, learned counsel for the petitioners.

2. Learned counsel for the petitioners has made out case for interference in the impugned order and reasons thereof are as follows:

(i) A suit for demarcation filed at the behest of petitioners was decided vide order dated 5.12.2023 which was challenged by contesting respondents before Commissioner, Moradabad along with an application for condonation of delay. however, procedure to decide the first appeal was not duly followed.

(ii) It is well established procedure that in case where an application for delay condonation is filed, same has to be heard on merit and in case it is allowed, matter be put for hearing after inviting objections, though it could be done on the same day also, but the order for condoning the delay and the order on merit should be demarcated specifically and clearly which has not been done in the present case. For reference, order passed the Appellate Court dated 8.4.2024 in its entirety is reproduced hereinafter;

(iii) Aforesaid procedure is also contrary to the judgment passed by Division Bench of this Court sitting at Lucknow in the case of Ram Prakash Vs. Deputy Director of Consolidation in Consolidation No.6574 of 2016 dated February, 3, 2022, wherein a reference was answered in the following manner:

" 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."

(iv) Challenge to the order dated 8.4.2024 at the behest of petitioners before the Board of Revenue got failed probably on the ground that since first Appellate Court has remanded the matter for fresh consideration, though said order is also not happily worded.

3. In the aforesaid circumstances, Court is of considered opinion that since an error is writ large and in order to cure it there is no necessity to issue notice to Opposite Parties, therefore, impugned orders dated 28.8.2024 passed by Board of Revenue, Uttar Pradesh at Allahabad and order dated 8.4.2024 passed by Commissioner District-Moradabad are set-aside and matter is remanded to Appellate Court to decide the delay condonation application at the first instance after hearing the parties and to proceed on the basis of its outcome taking note of above referred judgment in the case of Ram Prakash (supra) and the Appellate Court will also take note of procedure prescribed under Rule 183 of U.P. Revenue Code, Rules, 2016.

4. With aforesaid observations/direction, this writ petition is disposed of.

5. Registrar (Compliance) to take steps.