S.N.SRIVASTAVA, J. - (1.) BY means of this petition, the petitioner has assailed the judgment dated 18.9.2003 passed by the Deputy Director of Consolidation, Azamgarh, by which the said authority dismissed application under Section 5 of the Indian Limitation Act preferred by the petitioners in revision.
(2.) NECESSARY facts may be recapitulated and they are that deceased Tapsi father of the petitioner preferred revision against the judgment dated 22.4.1983 on 31.5.1983 passed by the appellate authority. During the pendency of the revision, the aforesaid Tapsi breathed his last and he was accordingly substituted by heirs and legal representatives who are the petitioners in the instant petition. Subsequently, it transpired that the revision was filed belatedly and consequently, application under Section 5 attended with the affidavit of the learned counsel representing the petitioners was filed. However, the revision came to be dismissed on the premises that application under Section 5 of the Indian Limitation Act was filed after an efflux of 17 years, though it brooks no dispute that the revision was still pending. Learned counsel for the petitioner canvassed that the delay was too negligible to be taken into account in filing revision and further that the revision was presented by the learned counsel who had been duly instructed to file application for condonation of delay. It was further submitted that the deceased Tapsi during whose life time revision was preferred was unlettered besides being old and infirm and if at all, the counsel failed to file application under Section 5 of the Limitation Act, the petitioners cannot be visited with penalties of law. It was further canvassed that materials on record clearly go to show that the delay in filing the revision was not born of any laches or lapses on the part of the deceased or the petitioners and in view of the affidavit filed by the learned counsel representing the deceased and the petitioners, the authority concerned ought to have taken liberal view. He further quipped that Section 5 of the Limitation Act simply postulates satisfaction of the Court and does not envisage filing of application under Section 5 of the Limitation Act as an indispensable requirement to warrant consideration and consequent condonation of delay. He further propounded that all that is required is that there should be material on record satisfying the Court and in case formal application has not been made and condonation of delay has been pressed into service by oral prayer following by cogent and convincing materials on record, the delay could be condoned. Reverting to the facts of the present case, the learned counsel submitted that application in the Instant case was not filed along with the revision but was subsequently made during the pendency of the revision, it should have been considered to have been made within time and in the circumstances the application under Section 5 ought to have been allowed and in consequence it was argued that the Impugned order rejecting the application for condonation of delay commends itself to be set aside. Per contra, Sri G.N. Srlvastava, learned counsel representing the opposite parties contended that in case application for condonation of delay is not filed along with the case, the authority would have no jurisdiction and the revision would be rendered liable to be dismissed and in vindication of this stand placed credence on a decision in Ragho Singh v. Mohan Singh, 2000 RD (91) 689. He further contended that the order impugned herein was rightly passed and was made in accordance with law.
(3.) I have scrutinized the rival contentions made across the bar and also considered the materials on record. The questions that emerge for consideration in the above conspectus are ; (1) Whether the Court on the basis of oral prayer supported by materials on record could decide the question of sufficiency of the cause and could condone the delay and (2) whether during the pendency of the revision, application under Section 5 of the Indian Limitation Act for condonation of delay in filing the revision could be preferred and whether the revisional authority could consider such application for condonation of delay.;