- (1.) B. K. Sharma, J. Heard learned Counsel for the parties. In this writ petition the petitioners G'rja Shankar and Bateshwar Nath have challenged the order dated 13-11-1995 passed by the Deputy Director of Consolidation, Bhadoi, Camp at Gyanpur in Revision No. 660/652 under Section 48 of the Consolidation of Holdings Act, Rama Shankar and Others. v. Ram Jiyawan and Others. , village Deegh Uperwar, Ta. Kaudh, lehsil Gyanpur, district Bhadoi, whereby he allowed the revision and set aside the order dated 2-1-93 passed by the Settlement Officer (Consolidation) in Appeal No. 6/1667, Ram Jiavmn v. Gauri Shankar and Others. , and Appeal No. 1883/90-93, Devi Shankar and Others. v. Rama Shankar and Others.
(2.) THE facts leading to this writ petition are that respondent Nos. 2 and 3 Rama Shankar and Daya Shankar, filed objections under Section 9 of the U. P. Consolida tion of Holdings Act in respect of Khata No. 1035, that in the proceedings relating to the said objections (case No. 6374-6382) a compromise dated 19-1-1988 was filed and verified, that the Consolidation Officer accepted the same and passed an order in its terms on 19-1-1988, that at that time Ram Jiyawan, father of the petitioners, was alive, that the filed Appeal No. 6/1667 of 1989 Ram Jiayawan v. Gauri Shankar and Others. on 28-6-89 before the Settlement Officer (Consolidation) against the aforesaid order dated 19-1-1988 and also prayed for condodation of delay claiming that the notice of the said objections of respondent Nos. 2 and 3 were not at all sent and served on him (Ram Jiyawan, father of the petitioners) and that he never put his thumb-impression on the said compromise dated 19-1-88. He claimed that this com promise deed was fraudulent and forged and that some one has impersonated his name and that the alleged compromise dead did not bear his signature or thumb-im pression. He also claimed that the order of the Consolidation Officer was passed without application of mind. It was also claimed that the appeal was filed as soon as Ram Jiyawan came to know of the said fraudulent compromise deed. A copy of the memo of appeal is Annexure-4 in the present writ petition. THEre was also a prayer for condonation of delay in preferring the appeal on the basis of the aforesaid facts and on affidavit was also filed in support of the same, its copy is Annexure-5 in this writ petition. It was said in it that the order dated 19- 1-80 of the Consolidation Officer was ex pane, that he did Kaleen business and that in connection with the same he lived in Bhadoi, due to which he could not revive any notice or information about the compromise dated 19-1-88 and that he was not given any notice of the same. He further alleged that when he went back to his house on 16-6-1989, he learnt about the said order of compromise and then enquired from the Lekhpal and then preferred the appeal on 29-6-89. Similar appeal No. 1883 was filed by Devi Shankar and Others. THEy also calmed condonation of delay under Section 5 of the Limitation Act. THE Settlement Officer Consolidation allowed the prayer for extending the benefit of Section 5 of the Limitation Act by his order dated 2-1- 1993 (Annexure-6 to this writ petition ). In this order it was said that the affidavit filed was gone into, that explanation given in both the. affidavits of the appellants appeared satisfactory and that it appears proper to grant the benefit of Section 5 of the Limita tion Act in both the appeals as the view of the High Court is that a liberal attitude should be taken on the question of limitation. A copy of the memo of revision preferred against it by the present respondent Nos. 2 and 3 before the Deputy Direc tor of Consolidation is Annexure-7 to this writ petition. Now the impugned of the Deputy Director of Consolidation aforesaid has been challenged by the petitioners firstly on the ground that the Deputy Director of Consolidation had no jurisdiction to entertain and allow the revision as the order granting the benefit of Section 5 of the Limitation Act was only an interlocutory order and a revision against an interlocutory order is expressly barred by the provisions of Section 48 of the U. P. Consolidation of Holdings Act. In my view, this plea is not tenable. The term interlocutory order has been defined as below in Explanation (2) of Section 48 of the U. P. Consolidation of Holdings Act: "explanation (2 ).-For the purposes of this section the expression 'interlocutory order' in relation to a case or proceeding means such order deciding any matter arising in such case or proceedings or collateral thereto as does not have the effect to finally disposing of such case or proceeding. " The matter relating to Section 5 of the Limitation Act was to be disposed of first. If the application under Section 5 of the Limitation Act was allowed, the appeal was to be listed for disposal on merits and in case application under Section 5 of the Limitation Act was rejected, the appeal before the Settlement Officer (Consolidation) was to be dismissed as barred by time. The matter of prayer under Section 5 of the Limitation Act for condonation of delay will amount to a proceeding and whether the prayer is allowed or disallowed, the proceeding will come to an end in any case if allowed the appeal will be heard on merits and in the other case the appeal will be dismissed as barred by time. So, it cannot be said that the order passed by the Settlement Officer (Consolidation) allowing the application. under Section 5 of the Limitation Act in both the appeals was an interlocutory order. Consequently, it was competent for the Deputy Director of Consolidation to entertain the revision against the order dated 19- 1-1988 for condonation of delay in preferring the appeals and dispose of the revision on merits.
(3.) WHEN an order has been made under Section 5 of the Limitation Act by the lower court in the exercise of its discretion allowed or disallowing an application to extend time, it could be interfered with in revision, where the lower court has acted with material irregularity or contrary to law or has come to that conclusion on no evidence as held in Shanti Prasad Gupta v. Dy. Director of Consolidation, 1981 SCC 73. In the present case the Deputy Director of Consolidation instead of looking into the admitted facts and the material on record on the basis of which the Settle ment Officer (Consolidation) passed the order dated 2-1-93 (Annexure-6 to the writ petition) acting on extraneous material. He based his order on a registered docu ment dated 14-7-80 filed before him by the revisionist. There is no provision under Section 48 of the Consolidation of Holdings Act for admission of additional evidence but even if the additional evidence was to be taken on record it could not have been taken into consideration without giving an opportunity for rebuttal to the party against whom this additional evidence was filed. Obviously, no such oppor tunity has been given.;