IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL ON THE 10^th OF NOVEMBER, 2022 MISC. PETITION No. 5120 of 2022 BETWEEN:-

1. NAMDEV KARME S/O LATE BHURU KARME, R/O PRABHATPATTAN TEHSIL MULTAI, DISTRICT BETUL, MADHYA PRADESH

2. SUKHDEV KARME S/O LATE BHURU KARME, R/O PRABHATPATTAN TEHSIL MULTAI, DISTRICT BETUL, MADHYA PRADESH

3. PRAHLAD KARME S/O LATE BHURU KARME, R/O PRABHATPATTAN TEHSIL MULTAI, DISTRICT BETUL, MADHYA PRADESH .....PETITIONERS (BY SHRI LAL JI KUSHWAHA-ADVOCATE )

AND HARIBHAU KARME S/O LATE SHRI BHURU KARME, R/O WARD NO. 10 LAXMI CHOWK, PRABHATPATTAN TEHSIL MULTAI, DISTRICT BETUL (MADHYA PRADESH)

.....RESPONDENTS This petition coming on for hearing this day, the court passed the following:

ORDER

This misc. petition has been preferred challenging the order dated

16.09.2022 passed by Additional Commissioner, Narmadapuram Division, Narmadapuram, in case no.235/appeal/2021-22, confirming the order dated 14.12.2021 passed by SDO (Revenue), Multai, District Betul in case no.0023/appeal/2021-22, whereby learned SDO set aside the order dated Signature Not Verified

14.05.2018 passed by Naib Tahsildar, Multai and remanded the matter back to Naib Tahsildar for consideration afresh.

2. Learned counsel for the petitioners submits that the appeal before the SDO was filed beyond time and the learned SDO without taking into consideration the question of limitation, so also the document of partition and report submitted by the Patwari and without passing reasoned order has remanded the matter to the Tahsildar and the order of remand has wrongly been confirmed by the Additional Commissioner. He submits that the order passed by the SDO, as well as by the Additional Commissioner are not sustainable in the eyes of law.

3. Learned counsel for the petitioner in support of his contention placed reliance on the decision of Supreme Court in the case of Kranti Associates Private Limited & Anr. Vs. Masood Ahmed Khan & Ors (2010) 9 SCC 496; Ragho Singh vs. Mohan Singh and ors. (2001) 9 SCC 717 and coordinate Bench of this Court in the case of Chhitu vs. Mathuralal AIR 1981 MP 13.

4. Heard learned counsel for the petitioners and perused the record. 5. Apparently, the order dated 14.05.2018 (Annexure P-2) was challenged by the respondent by filing appeal in the month of July, 2021 along with an application under Section 5 of the Limitation Act seeking condonation of delay.

6. Unnumbered second paragraph of fourth page of the order dated

14.12.2021 shows that the question of limitation was agitated before the SDO by the petitioners, but in the next two small paragraphs learned SDO without considering the application under section 5 of the Limitation Act and further without passing any order regarding condonation of delay, has allowed the Signature Not Verified appeal, setting aside the order dated 14.05.2018, which has further been affirmed by the Additional Commissioner, Narmadapuram Division, Narmadapuram, dismissing the appeal filed by the petitioners.

7. In the light of aforesaid decisions of Supreme Court in the case of Ragho Singh (supra) and this court in Chhitu (supra) it is well settled that the question of limitation has to be considered first. If the learned SDO was of the opinion that for any reason the application under Section 5 of the Limitation Act deserved to be allowed, then before passing any order on merits, it should have decided the application under section 5 of the Limitation Act, first and only thereafter the SDO had jurisdiction to pass the order on merits in the first appeal, because unless the delay was condoned there was no appeal in the eyes of law.

8. Resultantly, the order passed by the SDO, as well as by the Additional Commissioner are hereby set aside and the matter is remanded back to learned SDO for deciding the appeal no.0023/appeal/2021-22 afresh, certainly after consideration of the application under Section 5 of the Limitation Act.

9. With the aforesaid observation, the petit