LOK NATH Vs. BOARD OF REVENUE

JUDGEMENT

(1.) This petition is directed against order passed by Board of Revenue dismissing an application filed for substitution under Order 22, Rule 4, Civil Procedure Code as being barred by time and abating second appeal under Order 22, Rule 9 although the village was notified under Section 4 of U. P. Consolidation of Holdings Act. The circumstances in which the controversy arose were that Bahadur, Sahadeo, father of respondent No. 3 and husband of respondent No. 5 filed suit under Section 229-B of the U. P. Z. A. and L. R. Act against petitioners and opposite parties Nos. 6 to 15 claiming sirdari rights as they were sub-tenants and acquired adhivasi right on the date of vesting. This suit was dismissed on 23rd July, 1968 but the order was set aside and appeal filed by opposite party was allowed by Additional Commissioner on 23rd May, 1969. Against appellate judgment petitioners filed appeal which was numbered as Second Appeal No. 488 of 1968-69. It remained pending and during pendency of appeal the village was notified sometime in 1970 or prior to it, as from the order by consolidation officer in proceedings started under Section 9, on an objection filed by opposite parties Nos. 3 and 5 was decided on 31st December, 1970. The consolidation proceedings till the stage of Deputy Director of Consolidation became final in 1971. In 1974 long after order passed by Deputy Director of Consolidation notices were issued from Board of Revenue. The petitioners thereafter appear to have contacted his lawyer at Allahabad and was advised to file an application for substitution as one of the opposite parties had died during pendency of appeal. As there was long delay the petitioners filed an application under Sec tion 5 of the Indian Limitation Act as well. The ground on which the delay, in filing the application, was sought to be condoned was that appellant was under impression that appeal had automatically abated under Section 5 (2) (a) of U. P. Consolidation of Holdings Act. The prayer of abating the appeal under Section 5 (2) (a) was also rejected nor was it accepted that after enforcement of consolidation the appeal stood automatically abated and the Board of Revenue was not competent to abate the appeal under Order 22, Rule 9. Learned counsel for the petitioners has assailed all the three findings recorded by Board of Revenue and as urged, that once notification under Sec tion 4 was issued the automatic effect of it was that appeal stood abated. It was urged that the abatement was as a matter of law and did it not depend on passing of the order which could be as on any day subsequent to Notification after issuing notice to parties. In support of the submission he relied on Allatala and another v. D. D. C. and others (1979 A. W. C. 705.), Parmeshwar Din v. D. D. C. and others (1979 (5) A. L. R. 421; R. C. 164 and 1978 U. P. R. J. 6. ). The learned counsel maintained that in any case the abatement did not debar consolidation authorities from going into merits of the matter and as the dispute has been decided by consolidation authorities the Board of Revenue should have abated, the appeal under Section 5 of the Consolidation Act instead of under Order 22, Rule 9 of Civil Procedure Code. In the end the learned counsel argued that the order rejecting application under Section 5 of the Limi tation Act suffers from manifest error of law as the Board of Revenue acted illegally in exercise of its jurisdiction in refusing to extend benefit under Section 5 of Limitation Act on grounds which were irrelevant. On the other hand coun sel for respondent contended on strength of decision in Nasir Ahmad v. Babu Lal (1974r. D. 130), that despite notification having been issued under Section 4 it was the duty of the petitioners to bring on record the legal representatives of the deceas ed respondent and if he relied the appeal stood abated. It was further urged that the law does not contemplate automatic abatement under Consolidation Act as the abatement could take place only after an order was passed to that effect after issuing notice to both parties and as this was not done the appeal abated under Order 22, Rule 9 and the effect of abatement was that the order passed by Additional Commissioner in favour of opposite parties became final. Reliance for this was placed in Sheodin Singh v. Darya Kunwar (A. I. R. 1966 S. C. 1932) and Raja Syed Ali Khan v. Hingu Lal and others (A. I. R. 19470udh74 ). The argument of the petitioners that there was sufficient cause for condo nation of delay was seriously contested and it was urged that the only ground on which delay was sought to be condoned was legal. According to learned counsel this could not be considered to be sufficient cause and the Board of Revenue was justified in rejecting the application. Before considering first two arguments raised on behalf of petitioners it may be seen whether there is any substance in the last argument as if the Board of Revenue committed an error in rejecting application under Section 5 it would not be necessary to decide the controversy whether the abatement is automatic and whether the order passed by Additional Commissioner which became final due to abatement of appeal operated as res judicata. It is not disputed that consolidation was enforced in 1970 and objection of opposite party filed under Section 9, was finally decided by the Deputy Director Consolidation (Sic) 4278 of 1971 was filed, which is also being disposed off by separate judgment, in which counter affidavit was filed by petitioners prior to 2nd October, 1973 the date on which opposite party died. No question of res judicata or finality of judgment of revenue courts was raised either before consolidation authority or in this Court, obviously, because till then a competent second appeal was pending and the order of Additional Commissioner was sub-judice. In fact after enforcement of consolidation, parties fought out their claim before consolidation authorities. The question is whether in these circumstance, impression of petitioners that they were not required to pursue their remedy before revenue courts was bonafide or they acted with negligence and gross carelessness in not being vigilant and making application for substitution so as to disentitle them from claiming benefit under Section 5 of Limitation Act. What is sufficient cause cannot be described with certainty for reasons that facts on which question may arise may not be identical. Now it is firmly established that it should be construed liberally. What may be sufficient cause in one case may be otherwise in another. What is of essence is whether it was an act of prudent or reasonable man. What was required to be examined by Board of Revenue was whether impression of petitioners that second appeal was liable to abatement was an impression of a prudent man. It has been seen above that petitioners had succeeded from Deputy Director Consolidation who is the final authority to adjudicate dispute under Consolidation Act. They had filed counter affidavit in the writ petition as well and opposite party has not placed reliance on finding of Additional Commissioner. If in these circumstances the petitioners formed an impression that he was required to pursue consolidation proceedings only and the proceedings of second appeal were of no consequence it can not be said that he was acting negligently and carelessly. It was not ignorance of law but a bonafide belief that he having succeeded from consoli dation authorities was not required to move any application for substitution in Board of Revenue. This belief which the petitioner formed even if erroneously, must have been shaken when on receipt of notice from Board they contacted their lawyer. Even then they did not sit quiet and after contacting their lawyer filed an application for substitution, despite finality of consolidation proceedings. In these circumstances the application for substitution was not filed within time. It is obvious that the petitioners were prevented from sufficient cause and they were acting in good faith and were not negligent and careless. The impression that appeal in Board of Revenue abated, automatically, may not have been legally justified but certainly it was a reasonable belief in circum stances of case. In any case having come to know that appeal was still alive petitioners did not commit any default in pursuing their remedy diligently. The finding in these circumstances abating second appeal under Section 22, Rule 9 Civil Procedure Code cannot be upheld. In the result this petition succeeds and is allowed. The order passed by Board of Revenue is quashed. He shall now decide the question of abatement under Section 5 of C. H. Act. The parties shall bear their own costs. .