B.L.Yadav - (1.) BY the present petition under Article 226 of the Constitution prayer is, that the orders dated 12-9-1989 and 7-7-1989 passed by the Assistant Director and Assistant Settlement Officer Consolidation Bulandshahr respectively may be quashed by issuing a writ of certiorari.
(2.) THE controversy appears to be very short. A time barred appeal was filed by Smt. Chandrawati before the Settlement Officer Consolidation along with an application for condonation of delay under Section 5 of the Limitation Act. But this fact has been refuted by the learned counsel for the respondents and it is alleged under para 11 of the counter-affidavit that the appeal was within time. THE Settlement Officer Consolidation, however, accepted that the appeal was time barred. Once a statement of fact is made in the judgment by a Court, that has to be accepted as correct by all concerned. In State of Maharashtra v. Ramdas Srinivas, AIR 1982 SC 1245 it has been held that statement of fact regarding proceedings in a court of law in respect of admission, confession or other matters in the judgment of the court, shall be taken to be conclusive and not open to be contradicted. The same can be challenged only by making an application before that court which has recorded the statement of fact in the judgment. Consequently it is, now not open to this court to take that judgment of Settlement Officer of Consolidation to be incorrect rather this court has to proceed on the assumptions that the appeal was time barred. When the appeal came up for hearing an objection was taken on behalf of the petitioners that application under Section 5 of the Limitation Act for condonation of delay may be decided first, before proceeding to decide the appeal on merits. The reason was that till the application under Section 5 of the Limitation Act was allowed and the appeal was held to be within time, there would be no competent appeal for decision on merits. Assistant Settlement Officer Consolidation under the impugned order dated 7th July, 1989 rejected that objection and held that the application under Section 5 of Limitation Act for condonation of delay, and the appeal both would be decided together the same day. The revision preferred by the petitioner against that order failed with the observations that the order of the Assistant Settlement (Officer Consolidation was "an interlocutory order," hence no revision would lie against it in view of the provisions of Section 48 as amended by Section 19 of U- P. Ordinance No. 15 of 1982, which added the expression "other than an interlocutory order "
(3.) DR. Gyan Prakash learned counsel for the petitioner urged that as appeal was held time barred under the orders of Assistant Settlement Officer Consolidation and application under Section 5 of the Limitation Act has been filed, unless that application was disposed of first, appeal cannot be decided, as in-case application is rejected appeal has also to be rejected. In case application is allowed only in that event the appeal would be competent and would be decided on merits. Under these circumstances there was no justification for deciding the appeal and application under Section 5 of the Limitation Act together on the same day. It was further urged that as the disposal of the application under Section 5 of the Limitation Act attaches finality to the matter because in case the application was rejected holding the appeal to be time barred, such orders could not be said to be "interlocutory order" nor order directing Section 5 application and appeal itself being decided together can be said to be an 'interlocutory order" Mr. M. C. Singh, learned counsel for the respondents on the other hand urged, that the order in appeal was correct and revision has been correctly rejected as the order passed by the appellate court was an interlocutory order. Relying upon paras 10, 11 and 12 of the counter affidavit it was also urged that the appeal itself was not time barred and incorrect statement of fact has been made in the judgment of Assistant Settlement Officer Consolidation.;