- (1.) S. P. Pandey, Member. This is a second appeal against the judgment and decree, dated 14-7-1982, passed by the learned Additional Commissioner, Varanasi Division, Varanasi in Appeal No. 88/50 of 1965, abating the same being time barred.
(2.) BRIEFLY stated, the facts giving rise to the instant second appeal are that a suit under Section 229-B of the UPZA & LR Act (hereinafter referred to as the Act) filed by Deodatt, plaintiff before the learned trial Court against the defendants Shyam Narain etc. was dismissed, vide its judgment and decree, dated 16- 8-1984, against which an appeal was preferred, by the plaintiff on 23-4-1985 before the learned Additional Commissioner. Vide his order, dated 14-7-1992, the first appeal was abated, and it is against this order of abatement that the instant second appeal has been preferred by the plaintiff before the Board. I have heard the learned counsel for the appellant and have also perused the record on file. None responded for the respondents despite due notice and repeated calls at the time of hearing and therefore, this Court was left with no option, except to proceed ex-parte. Assailing the impugned order, the learned Counsel for the appellant contended that since the impugned order is against the facts and circumstances of the instant case, the learned Court below has grossly erred in rendering the same; that since it is the settled principle of law that the Court should always take a lenient view in the matters of condonation of delay, the learned Court of first appeal has committed manifest error of law in not following the same and taking rather a very technical and strict view of the matter in question; that since in the village, concerned, no medical certificate was available, the observation of the learned Additional Commissioner that the same has not been filed in support of the contention of the appellant, is patently erroneous and baseless; that since the learned lower appellate Court has misconstrued and mis-interpreted the entire facts and circumstances of the instant case, the impugned order is wholly unjust and arbitrary; that in any view of the matter, the impugned order is illegal, perverse and without jurisdiction which cannot be allowed to sustain and this second appeal deserves to be allowed and the first appeal is liable to be remanded to the learned Court below. In support, reliance has been placed on the case law, reported in AIR 1969 SC 575; AIR 1972 SC 749 and AIR 1998 SC 3222. I have closely and carefully considered the arguments, advanced before me by the learned Counsel for the appellant and have also scanned the record on file. A bare perusal of the record on file clearly reveals that the first appeal was abated, being time barred. It is true that the same has been filed after the expiry of the prescribed period of limitation and an application under Section 5 of the Indian Limitation Act along with an affidavit was also filed for the condonation of delay in filing the same. The learned Additional Commissioner is of the view that the appellant has miserably failed to explain day to day delay, caused in filing the same. He has, however, also observed that in the substitution application for the deceased appellant No. 1, no date of his death was disclosed and therefore, he came to the conclusion that the appellant appears to be in the habit of delaying the matters. Surprisingly enough, the appeal was abated, being time-barred. I still fail to understand as to under which provision of law, the same has abated. It is noticeable that the aforesaid substitution application for the deceased appellant No. 1 had since been allowed by the learned Additional Commissioner, vide his order dated 31-7-1990 and therefore, the appeal cannot, at any stretch of imagination, be abated for non- substitution. Likewise, the same cannot also be abated being time-barred. It could, at the most, be dismissed as such and therefore, to me, it appears that the impugned order has been passed under some confusion. It is not out of place to mention here that the Courts should always take a lenient view in the matters of condonation of delay and their endeavour should always be in favour of the disposal of the case on mertis, according to law and therefore, technicalities shoud, as far as possible, be avoided. Such an order like the impugned one, cannot, therefore, be allowed to sustain and as such, I am of the considered opinion that the first appeal, in the interest of justice, very richly deserves to be remanded to the learned Court of first appeal for disposal, on merits, according to law. Needless to say, since, this is rather one of the edest cases, the learned Additional Commissioner shall dispose of the case on merits expeditiously, according to law.
(3.) IN view of the above, this second appeal is accordingly, allowed, the impugned order, passed by the learned Additional Commissioner is hereby, set aside and the first appeal is hereby, remanded to him for disposal on merits, according to law, after affording an opportunity of being heard to the parties, concerned. Let records be returned forthwith, to the Courts concerned. Parties to appear before the Court concerned on 8-5-2003. Appeal allowed. .;