S.P.PANDEY, J. - (1.) THIS is a revision petition under Section 333 of the UPZA & LR Act (here in after referred to as the Act), preferred against the judgment and order dated 29-7-1991, passed by the learned Additional Commissioner, Jhansi Division, Jhansi, in appeal No. 96/33 of 1988-89/Lalitpur, arising out of the judg­ment and order dated 14-12-1988, passed by the learned trial Court in suit No. 276of 1984-85/202of 1985-86 underSection229-B/209of theAct.
(2.) BRIEFLY stated, the facts giving rise to the present revision petition are that Arvind Kumar and Pramod Kumar, plain­tiff instituted a suit under Section 229-B/209 of the Act against Ajudhi etc., defendants for declaration of their rights as bhumidhar, with transferable rights, in possession of the land, in dispute and the defendant, Ajudhi has neither any concern with it nor is he in possession of the same. It was pleaded that the name to the defen­dant was entered in Class-9 and this fact came in their knowledge, in the year 1985, after a perusal of the revenue records and that no PA-10 or PA-24 was ever received by them and as such, it was prayed that his name be expugned from the revenue records. Notice was issued oF the defen­dant, which was not served on him. The learned trial Court decreed the suit of the plaintiffs vide its order, dated 29-3-1986. There after, on 6-12-1988, Ajudhi moved an application under Order XLI, Rule 13 CPC, stating inter-alia that no summons or notice was served on him in respect of the suit, in question and that no statement was made by him before the learned trial Court and praying that the order dated 29-3-1986, passed by the learned trial Court being illegal and exparte, be recalled. This application was supported by an affidavit. The plaintiffs filed their objection to the application and the learned trial Court rejected this application on 14-12-1986. Aggrieved by this order an appeal was. preferred. The learned Additional Com­missioner allowed this appeal, set aside the orders, dated 14-12-1988 and 29-3-1986 passed by the learned trial Court and remanded the case to it for decision afresh on merits after affording an opportunity of being heard and adducing evidence. It is against this order that the instant revision petition has been preferred. I have heard the learned Counsel for the parities and have also perused the record, on file. Written arguments on be­half of the parties, concerned have also been filed which are on the record. For the revisionist, it was contended that since the first appeal was highly time-barred and no application under Section 5 of the Indian Limitation Act was filed, the order passed by the learned Additional Commissioner has erred in law in passing the impugned order, without condoning the delay, in filing the first appeal; that the impugned order, passed by the learned lower appel­late Court, is no order in the eyes of law, as it had no jurisdiction to decide the appeal, on merits, without first considering the question of limitation and condoning the delay;that in any view of the matter, the impugned order passed by the lerned Court below deserves to be set as; 'n, as it committed material irregularity and il­legality, in rendering the impugned order which is illegal, perverse, without jurisdic­tion and as such the instant revision peti­tion deserves to be allowed. In support, reliance has been placed on the case law, reported in 1982 ACJ 74 (HC). In reply, the learned Counsel for the opposite party submitted that since no summon were served on Ajudhi, the decree passed by the learned trial Court was clearly exparte and it erred in law in rejecting the restoration application, filed by him; that the im­pugned order, passed by the learned Addi­tional Commissioner was just and proper and calls for no interference;that in any view of the matter, the learned Court below was perfectly justified in quashing both the orders dated 29-3-1986 and 14-12-1998, passed by the learned trial Court and remanding the case to it for decision a fresh on merits as Ajudhi had no knowledge of the proceedings before the learned trial Court nor has he filed any written statement or deposed as witness before it; that in respect of the delay in filing the first appeal, he urged that this plea of limitation was never raised before the learned Court below and the learned Additional Commissioner was perfectly justified in passing the impugned order as once the orders on merits have been passed, the delay, if any, in filing the first appeal shall be deemed to have been waived and as such, this revision petition having no force, deserves to be dismissed outright.
(3.) I have carefully and closely con­sidered the contentions raised by the learned Counsel for the parties and have also gone through the relevant records on file. A bare perusal of the record makes it abundantly clear that the crux of the mat­ter is whether an order, passed on merits, without condoning the delay in filing the appeal, is justified or not and, if so, wheiher or not the delay in filing the ap­peal, shall be deemed to have been waived. In this connection, my attention has been drawn by the learned Counsel for the revisionist towards the case law, reported in 1982 C3 74 (HC). The aforesaid point was set at rest by the land mark verdict given by the Hon'ble High Court. It was held that "if limitation had run out for filing a revision against an order, a valu­able right accrued to the other party and the revision filed against the order could not be heard without first condoning the delay. The Deputy Director of Consolida­tion had, therefore, no jurisdiction to proceed to decide the case on merits without first considering the question of limitation and condoning the delay". In the instant case, the appeal was filed on 25-4-1989 against the order, dated 14-12-1988/i.e after about more than four months. This appeal was certainly time-barred and there is nothing on the record of the learned lower appellate Court, in respect of the condonation of delay, in filing the first appeal nor is there an iota in this respect in the impugned judgment, passed by it. The learned Counsel for the opposite party has laid much stress on the point that once the orders on merits have been passed, without condoning the delay in filing the first appeal, the same shall be deemed to have been waived. It is the settled principle of law that the orders, on merits, cannot be passed without first con­doning the delay in filing the first appeal and as such, it was incumbent upon the learned lower appellate Court to have first considered the point of limitation and then ought to have proceeded with the appeal. In this view of the matter, the impugned order, passed by the learned Court below is illegal and without jurisdic­tion and deserves to be set aside. To my mind, this is a fit case to be remanded to the learned first appellate Court for decision afresh in the light of the observa­tions made hereinabove and as such, this revision petition deserves to be allowed. It is also pertinent to mention here that in the facts and circumstances of the instant case, in order to achieve the ends of sub­stantial natural justice and to facilitate its course, it is just and proper that the appel­lant before the learned Court, below is afforded a reasonable and due opportunity to file an application under Section 5 of the Indian Limitation Act, if he so desires, since no objection, in respect of the con­troversy in question, had been raised by the respondents, at the first appellate stage and the aforesaid appeal was also not ac­companied by such application.;