S.N.Srivastava - (1.) -Present petition has been filed impugning this judgment and order dated 6.8.2003, passed by the Director of Consolidation by means of which the revision was allowed and the verdict delivered by the Settlement Officer, Consolidation, dated 10.1.2003 and also the judgment dated 10.1.1990 entered into by the Assistant Settlement Officer, Consolidation were set aside and the matter was relegated to the Consolidation Officer for decision afresh fixing 25.8.2003 studded with the direction to delve into the merits of the case by affording opportunity of hearing and adducing evidence.
(2.) FACTS forming background leading to the filing of the present petition may be recapitulated. The dispute in the instant case revolves round plot No. 418 admeasuring 1.6049 hectare situated in village Khodna Khurd, pargana and Tahsil Dadri, district Gautam Budh Nagar in respect of which it is claimed that one Brij Mohan Sharma who had been attorned by late Likhi Ram with power of Attorney dated 15.3.1989, executed registered sale deed the same day on 15.3.1989 in relation to the aforesaid plot in favour of the petitioner. It is further claimed that prior to execution of sale deed, late Likhi Ram had applied for and was accorded approbation to sell the property in question by means of the order 24.2.1989 by the Settlement Officer, Consolidation. It is further claimed that the same day, i.e., 10.1.1990, i.e., the date of execution of sale deed, the name of the petitioner came to be mutated in the revenue records. The dispute conflagrated when Likhi Ram filed appeal in the year 1995 assailing the order dated 10.1.1990, on the premises that the petitioner maneuvred to secure sale deed in question by practicing fraud and the fraud played by the petitioner filtered to his knowledge on 20.11.1995. Likhi Ram also refuted having executed any power-of-attorney in favour of Brij Mohan Sharma or the factum of having moved application seeking permission to sell the property. The appeal aforesaid culminated in decision leaning against the deceased Likhi Ram against which the respondents went upon in revision before the Deputy Director of Consolidation who as stated supra, relegated the matter of the Consolidation Officer for decision afresh on merits after affording opportunity of hearing and adducing evidence. The further facts revealed in the petition are that during the pendency of the appeal Likhi Ram died and his heirs who have been arrayed as respondent Nos. 3 to 5 subsequently, executed a sale deed in favour of respondent No. 2 on 9.5.2002. Aggrieved by the action of the respondent Nos. 3 to 5, the petitioner instituted suit for permanent injunction. In the said suit, the injunction prayed for was declined and consequently, the petitioner instituted Writ Petition No. 9537 of 2003 in which it is stated that the Court was pleased to grant interim order of maintaining status quo. The writ petition is still pending decision in this Court. It is in this backdrop that the petition has been instituted by the petitioner for the relief of certiorari quashing the impugned order dated 6.8.2003 (Annexure-1) to the petition. Learned counsel for the petitioner canvassed that since the appeal preferred by Likhi Ram was time-barred, application under Section 5 of the Indian Limitation Act followed and the same came to be decided ex parte by means of the order dated 20.8.1996 against which petitioner filed restoration application on 11.9.1996 which was allowed and 7.12.1996 was fixed for hearing on merit by the Settlement Officer, Consolidation. The precise submission in this context is that unless the delay in filing the appeal is condoned, the Settlement Officer, Consolidation was not competent to deal with the case on merit and in consequence, it was urged that the Settlement Officer, Consolidation erred in deciding the appeal without formally rendering any order on the application under Section 5 of the Limitation Act and by this reckoning, it is submitted that the verdict rendered by the Deputy Director of Consolidation in revision is erroneous and is rendered invalid and without jurisdiction. In connection with the proposition, the learned counsel placed credence on a decision of this Court in Govind Singh and others v. Deputy Director of Consolidation, Bijnore and others, 1996 RD 200 and JT 1995 SC 503. In opposition, learned counsel for the respondents has produced relevant orders to counteract the claims of the learned counsel for the petitioner and submitted that it would transpire from perusal of the orders that the delay was formally condoned and the matter was directed to be heard on merits and subsequently, the Settlement Officer, Consolidation entered into the merit. He further submitted that in the course of hearing on merit, the petitioner did not press into the service the plea of deciding the application for condonation of delay before entering decision on merits and rather argued the case on merit and, therefore, his acquiescence to the decision on merit leaves no manner of doubt that the petitioner was content with the decision on merits and never insisted for decision on application for condonation of delay before decision on merits. It is eloquent in the above conspectus that though the appeal preferred by the deceased Likhi Ram was time barred, the application under Section 5 of the Indian Limitation Act preferred for condonation of delay was allowed. The petitioner resisted the order condoning delay by filing restoration application taking therein the ground that it was passed without allowing him to have his say. The argument canvassed by the learned counsel that the impugned orders are without jurisdiction in view of the fact that no formal order was passed by the Court condoning the delay and in the circumstances, the impugned revisional order is rendered vitiated, does not commend to me for acceptance inasmuch as from the perusal of the order dated 16.11.1996, particularly having regard to the expression therein to the effect that "Patrawali Gun Dosh Ke Adhar Par Bahas Hetu 7.12.1996 Ko Niyat Ki Jaati Hai" produced by the learned counsel for the contesting respondents, it leaves no manner of doubt that the ex parte order was recalled and the appeal was directed to be heard on merits. There is substance in the contention of the learned counsel for the respondents that the orders dated 20.8.1996 and 16.11.1996 have deliberately been screened from the attention of the Court with the specific purpose to a design of inveigling this Court. When confronted with the orders produced by the learned counsel for the respondents before the Court, the learned counsel for the petitioner reasoned that once restoration application was allowed and order was set aside, it shall be considered that order condoning the delay was also set aside and stuck to the contention that the orders did not reveal that any formal order was passed by the Settlement Officer, Consolidation condoning the delay. The arguments though glittering but do not cut any ice and remain unsubstantial. It is too eloquent from a perusal of the orders aforestated that the restoration application was allowed and the matter was directed to be heard on merits. It does not appear anywhere from the record that the petitioner ever insisted upon disposal of the application under Section 5 as a prologue to disposal of the appeal on merits and rather, it is too obvious from the record that the petitioner did not resist disposal of the appeal on merits and never sought formal orders on application under Section 5 of the Limitation Act. The entire conduct of the petitioner is eloquent of the proof that the petitioner acquiesced to the orders and judgments on merits and argued the case on merits before the Settlement Officer, Consolidation and it appears that subsequently, he hit upon the idea of raising the plea of absence of formal order deciding the application under Section 5 of the Limitation Act. The entire conduct gives appearance that it was an ingenious ploy to keep the issue burning for being taken advantage of at the appropriate stage. In Stroud's Judicial dictionary, 5th Ed., it has been explicated that the word does not mean simply an active independent consent, but will be implied if a person is content not to oppose irregular acts, which he knows are being done. In Krishan Dev v. Ram Piari, AIR 1964 Pat 34, Division Bench of Patna High Court dealt with the word 'acquiescence' and it was quintessentially observed that 'acquiescence' is used in two senses. Sometimes it is used to denote conduct which is evidence of an intention by a party, conducting himself, to abandon an equitable right ; sometimes it denotes conduct from which another party would be justified in inferring such an intention. It was further observed that "Generally speaking if a party having an interest to prevent an act being done has full notice of its having been done, and acquiesces in it, so as to induce a reasonable belief that he consents to it, and the position of others is altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would have had if it had been done by his previous license." In Panna Lal v. Union of India, AIR 1957 SC 397 and M.S.R.TC v. B.R.M. Service, AIR 1969 SC 329, relief claimed was declined on the ground of acquiescence and it was quintessentially observed that in general, a person who submits to the jurisdiction of an inferior Tribunal and takes part in the proceedings without objection on the ground that the Tribunal has no jurisdiction, cannot, after having failed in these proceedings, turn round and question the jurisdiction of that Tribunal in a petition under Article 226 of the Constitution. In yet another decision in Nain Sukh v. State of U. P., 1953 SCR 1184, the Apex Court took similar view. In this case the writ prayed for was quo warranto. The Supreme Court observed that a person who had acquiesced in an election being conducted on the basis of separate electorates formed on communal lines, could not seek his remedy under Article 32 after the election was over. However, it does not brook dispute that where fundamental right of a party is infringed, acquiescence by itself may not be a ground for refusing relief. The quintessence of the principle is that there can be no loss of fundamental rights merely on the ground of non-exercise of it. I have searched the entire record to ascertain whether in acquiescing to the order on merit by the petitioner, fundamental right of the petitioner is in any way infringed upon and converge to the firm opinion that the petitioner acquiesced to the order deliberately to reap dividends therefrom in subsequent proceedings. The above cases implicitly furnish foundation for holding that once a litigant did not resist the decision and acquiesced to it and in subsequent proceeding, he cannot turn round and question the validity of the said decision. As stated supra, the conduct of the petitioner in the instant case is a clear manifestation that he acquiesced to the order passed on the restoration application to the effect that the appeal would be decided on merits on the date fixed and at the time of disposal of the appeal on the date fixed, he did not demur to disposal of the appeal on merits without disposing of the application under Section 5 of the Indian Limitation Act which implies that he was aware of the consequences but deliberately avoided to insist on disposal of the application under Section 5 of the Limitation Act with the avowed purpose of utilising the alleged infirmity to his advantage in subsequent proceeding and in the circumstances, the conduct of the petitioner was an evidence of his intention to abandon the objection at that stage for being appropriated to his advantage in subsequent proceeding. The ploy appears to have been employed by the petitioner to wear out the respondents from further proceedings. I have also been taken through the decision in Govind Singh (supra), pressed into service on the point by the learned counsel for the petitioner. The decisions cited by the learned counsel for the petitioner have been rendered in different context and on aspects different from the facets involved in the present petition and as such, the decisions cited are unavailing to the petitioner in the facts and circumstances of the case.
(3.) YET another aspect to be dealt with in the instant case is whether mere absence of reference about disposal of application under Section 5 of the Limitation Act, is fraught with the consequence of vitiating the entire judgment/order passed by appellate court. In connection with this aspect, I may advert to a recent decision of the Apex Court in Davinder Pal Sehgal and another v. Partap Steel Rolling Mills Pvt. Ltd. and others, 2002 (1) AWC 395 (SC) : (2002) 3 SCC 156. The facts of the case are that the application for restoration was dismissed for non-prosecution on behalf of the plaintiffs whereupon another application was filed for restoration of the same which was dismissed by the trial court. When the said order was challenged before the High Court, the revision was allowed and the order of the trial court was set aside and the application for restoration of the suit was restored and the trial court was directed to dispose of the same on merit. In this case after the remand, a petition was filed under Section 5 of the Limitation Act for condonation of delay in filing the restoration application. In the proceeding before the trial court after remand, the trial court having found that sufficient cause was shown for restoration, allowed the application and restored the suit of its original file. When the said order was challenged before the High Court in revision, the same was allowed and the order of the trial court restoring the suit was set aside and the application for restoration dismissed on the ground that there was no consideration by the trial court on the point of limitation. The Apex Court observed that it appears that in the application for restoration, all relevant facts have been stated not only to show that the plaintiffs had sufficient cause for non-appearance but also to show sufficient cause for condonation of delay in filing the restoration application. In the ultimate analysis, the Apex Court held that merely because in the order of the trial court, specifically, there is no reference to petition for condonation of delay, it cannot be said that it did not consider the same and in consequence, the Court held that it cannot be said that the order of restoration has been passed without condoning the delay in filing the restoration application. The facts of the above case bear close resemblance to the facts of the present case. In the instant case, the contention that the order impugned proceeded without consideration on the aspect of limitation does not commend itself for acceptance inasmuch as the disposal on merit had within its sweep consideration of the aspect of limitation and by this reckoning, there is no error apparent on the face of the record. Coming to the factual aspects of the case, it would appear that the deceased had repudiated execution of power-of-attorney in favour of alleged holder of power-of-attorney namely, Brij Mohan Sharma or the permission alleged to have been applied or secured by him. It was claimed by the deceased in appeal that someone personating himself as Likhi Ram was set up by the petitioner in league with Brij Mohan Sharma. The learned counsel for the respondents submitted that what is intriguing is the aspect that the deceased is alleged to have executed the deed of power-of-attorney in favour of Brij Mohan Sharma on 15.3.1989 and the same day sale deed was executed by Brij Mohan Sharma on behalf of the deceased on the basis of power-of-attorney. This aspect is indeed intriguing as submitted by the learned counsel and arouses reasonable doubt in the mind and lends colour to the suspicion that there is something black in the bottom. Yet another aspect worthy of notice is that the deceased also denied having sought any permission for sale of the plot in question and the application for permission moved on behalf of the petitioner is also alleged to have been concocted with the specific purpose to a design of grabbing the land of the deceased Likhi Ram. All these aspects have been noticed by the Deputy Director of Consolidation and to my mind, he rightly relegated the matter to the Consolidation Officer for decision on merits in order to sift the grain from the chaff. Therefore, I see no infirmity or illegality in the decision of the Deputy Director of Consolidation by which the matter was remitted to the Consolidation Officer for consideration and decision afresh on merits after affording opportunity of hearing and opportunity of adducing respective evidence in the case.;