SL.

No

Date

Office Notes,

reports,

orders or

proceedings

or directions

and

Registrar’s

order with

Signatures

COURT’S OR JUDGES’S ORDERS

WPMS No. 3110 of 2023

Hon’ble Vivek Bharti Sharma, J.

Present Mr. Siddhartha Sah, counsel for the petitioner.

Present Mr. Pankaj Singh Chauhan, counsel for the

respondents.

2.

Present writ petition has been filed by the petitioner

under Article 227 of the Constitution of India to quash the

orders dated 06.09.2021 passed by the Court of Commissioner

Kumaun Mandal Nainital in Z.A. Appeal No. 129 of 2020-21,

whereby the delay condonation application has been allowed

without issuing notice to the plaintiffs/petitioners as well as the

order dated 03.10.2023 passed by the Board of Revenue,

Uttarakhand, Dehradun in Revision No. 12/2021, whereby the

revision filed by the petitioner against the order dated

06.09.2021 has been dismissed.

3.

Counsel for the petitioners would submit that the

petitioners/plaintiffs have filed Suit No. 22/07 of 2014 under

Section 176 of the U.P.Z.A. & L.R. Act for partition in the court

of Assistant Collector 1^st Class/Parganadhikari, Nainital. The

said suit was decreed by the judgment and order dated

14.08.2018. Feeling aggrieved by the said judgment and order,

the respondents/defendants have filed a time barred Appeal No.

129 of 2020-21 accompanied with a delay condonation

application in the court of Commissioner Kumaun Mandal

Nainital. The said application was allowed by condoning the

delay in filing the appeal and the order of the trial was stayed

vide judgment and order dated 06.09.2021.

He would further submit that being aggrieved by the said

judgment and order, the petitioners/plaintiffs preferred a

Revision No. 12 of 2021-22 in the court of Board of Revenue,

Uttarakhand Dehradun; that, the said revision was dismissed on

03.10.2023. Hence, the present writ petition.

4.

Counsel for the petitioners/plaintiffs would submit that

the impugned judgment and orders dated 06.09.2021 and

03.10.2023 are not sustainable in the eyes of law; that, the court

erred in law by condoning the delay of three years and also

granted stay without being hearing the plaintiffs/petitioners. He

relied upon paragraph nos.5, 6 & 7 of the judgment of this Court

passed in Smt. Neelam Kumari & another Vs. U.P. Financial

Corporation (2008) SCC online Utt. 13, wherein in paragraph

no.6 & 7, the Court has observed as under:

5. Section 5 of the Limitation Act, 1963 reads thus:

“5. Extension of prescribed period in certain

cases.— Any appeal or any application, other than an

application under any of the provisions of Order XXI

of the Code of Civil Procedure, 1908, may be admitted

after the prescribed period, if the appellant or the

applicant satisfies the court that he had sufficient cause

for not preferring the appeal or making the application

within such period.

6. On its plain reading, this Section does not apply

to suits. It applies only to appeals or applications.

Whether the plaintiff or its counsel wrongly invoked

Section 5 for condonation of the delay despite the

aforesaid averments in the plaint, is for the plaintiff or

its counsel to ponder over. But the learned trial court

ought to have known that Section 5 Limitation Act is not

applicable to suits. Yet it received and entertained the

application under Section 5 for condonation of the delay

in filing the suit and, not only that, it condoned the delay

also ex parte, without issuing any notice to the

defendants in the suit.

7. Irrespective of the fact that Section 5 Limitation

Act is not applicable to suit, as far as the law of

limitation is concerned, if a matter, on the own showing

of the party filing the matter in the court, is time-barred,

right accrues in favour of the opposite party in that

matter in having that matter dismissed as time-barred

and, therefore, if such a matter is accompanied by an

application for condonation of the