- (1.) THIS is a revision application filed under sec. 84 of the Rajasthan Land Revenue Act against the order of the Collector, Ajmer dated 5-2-1970 by which the delay in filing the appeal before him under sec. 5 of the Indian Limitation Act was condoned.
(2.) THE facts of the case, in brief, are that the present respondent filed an appeal on 12-5-1969 under sec. 25 of the Rajasthan Land Revenue Act before the Collector, Ajmer against the order of the Additional Tehsildar dated 28-8 1963 passed in Mutation No. 478. Along with the appeal an application under sec. 5 of Limitation Act supported by affidavit of Shri Aditya Narain appellant, present respondent was also presented in which it was mentioned that about the mutation (dated 28-8-1963) of the disputed land he came to know on 26-4-1969 when he had gone to the Tehsil to receive copies of revenue record for obtaining loan from the Bikaner Bank that the disputed land had been transferred by mutation in the name of the opposite party. He applied for a copy the same day, which was received by him on 6-5-1969, that on this date there occurred death in his family and for 3 days, he could not move out and 10th and 11th May were holidays, hence the appeal was filed on 12-5-1969. Hence it was prayed to condone the delay in filing the appeal against the mutation decided on 28 8-1953. THE learned Collector after hearing the counsel of the parties passed the following order: The applicant in the appeal has made the assertion that he is possession of the disputed land. No affidavit or evidence has been adduced by the other side to show that the applicant is out of possession. A person in possession cannot be expected to know that the entries in respect of the land have been effected in favour of other party inspite of the fact that he has filed a suit for the perpetual injunction against the opposite party. In the circumstances the unrebutted explanation given by the applicant that he first learnt about the impugned order on 26-4-1969 when he went to Tehsil to obtain certified copies of revenue record in connection with a loan is to be believed. For the reasons given above, the application is accepted and the delay in filing the appeal is condoned. It is against this order that the revision application has been filed. The learned counsel for the respondent raised a preliminary objection that the impugned order of the Collector is an interlocutory order and by this the case was not decided by him. Under sec. 84 of the Rajasthan Land Revenue Act, the Board could exercise power of revision in any case of a judicial nature or connected with settlement in which no appeal lies to the Board if the court or officer by whom the case was decided appears to have exercised a jurisdiction not vested in it or him by law etc. etc. The emphasis was laid on the words' by whom the case was decided and it was urged that the learned Collector had not decided the case by his impugned order referred to above. In reply to this, the learned counsel for the applicant said that it was not an interlocutory order. The appeal filed before the Collector was patently barred by limitation and under sec. 5 of the Limitation Act the appellant was required to explain each day's delay from the date of the order, which he failed to do, and that the case was decided by the Collector without fulfilling the requirements of sec. 5 and thus committed serious illegality in the exercise of jurisdiction A. I. R. 1964 Supreme Court p. 497 was cited where is was held that a case included a part of a case, and as such revisional jurisdiction of the High Court under sec. 115 of Civil Procedure Code was exercisable irrespective of the question whether an appeal lies from the ultimate decree or order passed in the suit. In the case before the Supreme Court, the Subordinate Judge held by an interlocutory order that the suit filed by Dillon for recovery of the amounts advanced to Khanna was not maintainable. That was manifestly a decision having a direct bearing on the right of Dillon to a decree for recovery of the loan alleged to have been advanced by him, which he says Khanna agreed to repay, and if the expression 'case' includes a part of the case the order of the Subordinate Judge must be regarded as a case which has been decided. It was, therefore, held that a case in which an appeal lies, the case decided meant appeal from the order direct and not appeal from final order. In my view the Board's power of revision are very wide to include matters where an officer or court b-low in passing an order appeared to have exercised a jurisdiction not vested in it or him by law, or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its or his jurisdiction illegally or with material irregularity. As such a revision will lie to the Board if an officer or court has decided any matter by an order, if the same attracted the above provisions of sec. 84, no matter whether such an order was passed while finally deciding the case or deciding any issue by any order passed on an application moved before him in connection with the case. Since, in this case, the learned Collector decided the question for limitation by condoning the delay caused in filing the appeal and that too without seeing whether the requirements of sec. 5 were fulfilled or not, the preliminary objection was over ruled. The learned counsel for the applicant argued that under sec. 75 (7} (a) of the Rajasthan Land Revenue Act, a first appeal shall lie to the Collector from an original order passed by a Tehsildar in matters not connected with settlement or land records, and as per provision in sec. 78 (a) the period of limitation for filing an appeal is 30 days from the date of the order to which objection is made. In the present case, the mutation order was passed by the Tehsildar on 28-8-1963 and the appeal was filed on 12 5 1969, alleging this to be within limitation from the date of knowledge viz 26-4-1969 about the attestation of the mutation. For condonation of the delay under sec. 5 of the limitation Act, an application supported by an affidavit was also filed on 3-10-59 and the learned counsel of the respondent was allowed to cross examine Shri Aditya Narain, deponent of the affidavit on his affi-davit and arguments were also heard on the same date and 10-10-1969 was fixed for orders, which was however passed on 5-2-1970. It was argued that on account of this inordinate delay in passing the order, the arguments advanced by the parties could not be incorporated in the order of the learned Collector. The plaintiff had filed a Civil suit on 19-12-1950 in the court of Munsif Ajmer City Ajmer against the present applicants for permanent injunction against the defendants restraining them from interfering with the peaceful and lawful possession and enjoyment of the suit property. This has been admitted by shri Aditya Narain in his cross examination. It was argued that it was not possible to believe that a man who had filed a civil suit on 19-12-1959 did not know about the entries made in revenue records. I am not impressed by the argument, because the Civil Suit referred to above does not seem to have been Bled in respect of the land in dispute in the present case. Secondly the mutation was attested on 28 8 1963 and the Civil suit was filed on 19-12 1959 hence at that time the plaintiff could not be presumed to have a knowledge about a fact which occurred on a subsquent date. It was also argued that the learned Collector exceeded his jurisdiction in ignoring the ratio decendi contained in the ruling A. I. R. 1962 Supreme Court p. 361, where it was held that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by sec. 5. In all cases falling under sec. 5 what the party has to show is why he did not file an appeal on the last day of limitation prescribed. In other words, in showing sufficient cause for condoning the delay the party may be called upon to explain for the whole of the delay covered by the period between the last day prescribed for filing the appeal and the day on which the appeal is filed. A I. R. 1952 Rajasthan p, 90 was also cited where it was held that an application praying for indulgence under sec. 5 has on by to explain the delay of those days which are beyond the period of limitation, and the antecedent in action or negligence is not material, and should not be taken into consideration. But it is the duty of the applicant in such cases to explain each day's delay satisfactorily and if he fails to so, he cannot get the benefit of sec. 5. It was argued that sufficient cause was not shown in the affidavit. In para 5 of the affidavit it was deposed that I intended to apply for loan from the Bikaner Bank and therefore went to Tehsildar Ajmer to obtain certified copies of revenue record and 1 learnt there on 26-4 1969 that Khasra No. 5807 had been mutated in the name of opposite party ( D. A. V. College ). In para 6 it was mentioned that I received copy of the mutation order on 6 -5-1969. On 6 5-1969 there was a death in my family and for 3 days I could not move out, 10th and 11th May were holidays and this appeal is preferred without delay. It was argued that the delay in filing the appeal was extremely inordinate and without a satisfactory explanation. The period of limitation is to commence from the date of the order appealed against and within 3 months from the date of that order an appeal would have been within limitation, but since it was filed after a very long period it was for the applicant, firstly to show that there was sufficient cause for the delay and in doing so he was also to account for each days delay from the date the prescribed period of limitation expired. It was argued that the learned Collector acted illegally and with material irregularity in condoning the delay on unwarranted and unjustified ground. A perusal of the order of the learned Collector will show that he condoned the delay for two reasons, firstly that the appellant made an assertion that he is in possession of the disputed land which was not rebutted, and secondly that even if he had filed civil suit for perpetual injunction, he could not be expected to know that entries in respect of the land have been effected in favour of other party. In view of the above, and since the explanation given for the delay was not rebutted, the learned Collector believed that the appellant came to know about the impugned order on 26-26-4-1969 when he went to the Tehsil to obtain certified copies of revenue record in connection with loan. It was argued that the appellant made a bald statement, he did not mention the source of knowledge, nor each day's delay was explained. There was no just and sufficient cause and hence the discretion for condoning the delay could not have been exercised. The learned counsel for the respondent has argued that the mutation order passed in absence of the respondent, and without notice to him, that there was no vagueness in the statement of the respondent and that the Collector was fully justified and competent to exercise his discretion to give a finding whether the cause for delay was justified and then to condone it. A. I R. 1964 Supreme Court 1936 was cited where it was held that the Court had jurisdiction to determine whether there was sufficient cause for the appellants not making the application for the setting aside of the abatement of the suit in time and if so satisfied to admit it. I have given due consideration to these arguments. While agreeing with the arguments advanced by the learned counsel for the applicant, I would like to observe that in compliance of provision of S. 5, each day's delay from the expiry of the period of limitation was not explained, and the learned Collector acted illegally and with material irregularity in condoning the delay on unwarranted and unjustified grounds. It is true that it lay with the Collector to exercise his discretion in condoning the delay, but such discretion has to be exercised judicially and there should be sufficient reasons explaining each day's delay before such a discretion could be exercised. In view of the above observations, the revision is accepted and the order of the learned Collector dated 5-2-1970 is set aside with costs. . ;