1. Suit for pre-emption — Appeal filed beyond limitation period — Absence of application for condonation of delay under Section 5, Limitation Act. (Para 1 , 2 )
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2000 Supreme(SC) 706
SUPREME COURT OF INDIA
D.P.Wadhwa : S.Saghir Ahmad
Ragho Singh
Versus
Mohan Singh
Case No. : 4985 of 1997
Date of Decision : 4/5/00
Important Points
An appeal filed beyond the prescribed limitation period cannot be allowed without a formal application for condonation of delay under Section 5 of the Limitation Act. Delay cannot be deemed to have been condoned in the absence of such an application.
Subject
Civil Law - Limitation Act
Act Referred
Headnote
Code of Civil Procedure 1908-Section 115-Revision-Jurisdiction of High Court-District Judge appointing appellant as hereditary trustee-Under the scheme District Judge is required to appoint as Hereditary and Non-hereditary Trustees and no express direction of the scheme has been violated by District Judge-High Court appointing respondent as hereditary trustee in place of appellant after comparing the merits and demerits of individual candidates-Held-High Court exceeded its jurisdiction conferred u/s 115 CPC and the same cannot be sustained. (Para 9)
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Table of Contents
2. Whether an appeal filed beyond the limitation period can be allowed without a formal application for condonation of delay under Section 5, Limitation Act. (Para 3 , 6 )
3. Appellate authority lacks jurisdiction to allow a time-barred appeal without a Section 5 application; the concept of deemed condonation of delay is legally erroneous. (Para 6 )
4. An appeal filed beyond the prescribed limitation period must be dismissed if no application for condonation of delay under Section 5, Limitation Act is filed. (Para 6 )
5. Appeal dismissed; judgment of the High Court upheld. (Para 6 )
6. Can an appellate court allow an appeal filed after the limitation period without a condonation application?
No. If an appeal is filed beyond the limitation period and no application for condonation of delay under Section 5 of the Limitation Act is filed, the appellate court has no jurisdiction to allow the appeal. (Para 6 )
7. Is the concept of deemed condonation of delay valid in the absence of a formal application under the Limitation Act?
No. The court held that the view that delay shall be deemed to have been condoned even when no application for condonation of delay was filed is patently erroneous. (Para 6 )
8. Is a vendor considered a necessary party in a suit for pre-emption?
The court affirmed the view that the vendor is not a necessary party in a suit for pre-emption. (Para 4 )
(1) HARIBANSH Singh, original defendant no. 5 who was one of the co-shares of Plot No. 1142, Khata No. 185 at Village Beoria, District Saran, has executed a sale deed in favour of the appellant. Respondent no. 4 claimed himself to be a co-sharer, filed a suit for pre-emption in which Haribansh Singh and other persons were arrayed as defendants. The said suit was decreed by the Deputy Collector by his judgment, dated 28.3.1977 against which the appellant filed an appeal before the Additional Collector, Saran, which was allowed by judgment dated 10.7.1979.
(2) IT may be stated that the appeal was filed beyond time by 10 days but an application under Section 5 of the Limitation Act for condonation of delay was not filed.
(3) RESPONDENT no. 4 thereafter filed a revision before the Board of Revenue but the revision was dismissed on 29.12.1979. A writ petition filed thereafter by the respondent no. 4 was allowed by the Patna High Court on 10.3.1995 and it was held that the appeal which was filed beyond time by 10 days ought to have been dismissed on the ground of limitation as no application was filed for condonation of delay as contemplated by Section 5 of the Limitation Act. The L.P.A. filed thereafter was also dismissed on 24.2.1997.
(4) DURING the pendency of the L.P.A., Haribansh Singh, the original vendor, died. An application for substitution was filed but the learned High Court was of the view that the vendor was not a necessary party in a suit for premption and consequently, his heirs were not brought on record.
(5) AN application has been filed in this Court for deletion of the name of the deceased respondent no. 5 The application is taken on board and is allowed. The name of the respondent no. 5 is deleted.
(6) WE have heard learned Counsel for the parties. Since it is not disputed that the appeal filed before the Additional Collector was beyond time by 10 days and an application under Section 5 of the Limitation Act was not filed for condonation of delay, there was no jurisdiction in the Additional Collector to allow that appeal. The appeal was liable to be dismissed on the ground of limitation. The Board of Revenue before which the question of limitation was agitated was of the view that though an application for condonation of delay was not filed, the delay shall be deemed to have been condoned. This is patently erroneous. In this situation, the High Court was right in setting aside the judgment of the Additional Collector as also of the Board of Revenue. We find no infirmity in the impugned judgment. The appeal is dismissed. No costs.
