Rajes Kumar - (1.) -Heard Sri Sudama Ji Shandilya, learned counsel for the petitioner, Sri Pramod Kumar Sharma, learned counsel appears on behalf of respondent Nos. 5 to 8 and learned standing counsel appears on behalf of respondent Nos. 1 to 3.
(2.) BY means of the present writ petition, petitioner is challenging the order dated 13.8.2002, passed by Board of Revenue, U. P. at Allahabad, by which the revision of the petitioner has been dismissed. Brief facts giving rise to present writ petition are that in the suit, order was passed by Assistant Collector, Orai on 30.7.1998. The decree in respect thereof was issued on 6.11.1998. Against the order of the Assistant Collector, petitioner filed appeal on 4.1.1999 before Commissioner Jhansi Division, Jhansi alongwith the application under Section 5 of the Limitation Act for the condonation of delay. The aforesaid application was rejected vide order dated 22.11.1999. Against the order of the Commissioner, Jhansi Division, Jhansi dated 22.11.1999, petitioner filed revision before Board of Revenue, which has been dismissed by the impugned order. Member, Board of Revenue has dismissed the appeal on the ground that from the date of decree, i.e., 6.11.1998, the petitioner could not file the appeal within time. It has also been observed that the petitioner has moved the application for getting the copy of the decree late. It is further observed that no request has been made in writing for the condonation of delay. Commissioner has rejected the application for the condonation of delay on the ground that the order of the court below was passed on 30.7.1998 and the petitioner has moved the application on 15.10.1998 for obtaining the decree, which was let on 6.11.1998. The limitation for filing the appeal is thirty days but even after the preparation of the decree, the appeal was not filed within the stipulated time. Learned counsel for the petitioner submitted that the petitioner has filed the application for condonation of delay under Section 5 of the Limitation Act, Annexure-4 to the writ petition. There is nothing in the order of the Commissioner that the application under Section 5 of the Limitation Act has not been filed. He submitted that in the application under Section 5 of the Limitation Act petitioner has explained the delay. The delay was caused for the reasons that Sri Chandra Shekhar Sharma, advocate after getting the decree could not inform to the petitioner and when the petitioner had gone to meet him on the occasion of new year, he was told about the decree and, thereafter, the appeal was prepared and the same was filed. He further submitted that there was no deliberate default on the part of the petitioner and the petitioner acted bona fide.
(3.) LEARNED counsel appearing on behalf of the respondent Nos. 5 to 8 supported the order of the authorities below. Having heard learned counsel for the parties, I have perused the impugned order. In my opinion, order of the Board of Revenue and the order of Commissioner, Jhansi Division, Jhansi are not sustainable. The application under Section 5 of the Limitation Act, Annexure-4 to the writ petition which is not in dispute. Commissioner has not disputed the filing of the application under Section 5 of the Limitation Act. The delay in filing the appeal is about one month.;