G S SINGH Vs. COMMISSIONER

JUDGEMENT

(1.) This writ petition is directed against order dated 29.1.1990 (Annexure 5 to the writ petition) passed by Prescribed Authority/Additional Collector (Finance)/, Kanpur Nagar in case No. 87 of 1989 rejecting the Petitioners' application for recall of the order dated 26.12.1989. Another order assailed in the writ petition is dated 12.4.1990 passed by Commissioner, Kanpur Division, Kanpur, rejecting Petitioners' appeal No. 10 of 1990 against above two orders dated 26.12.1989 and 29.1.1990 passed by the Prescribed Authority.

(2.) It is submitted on behalf of the Petitioners that 12.10.1989 was fixed for objections and evidence but due to illness of Petitioner No. 1, Sri Ganga Sagar Singh who was doing pairvi of the matter, he could not appear on that date. Thereafter on 17.10.1989 Petitioner No. 2 Shiv Sagar Singh who is real younger brother of Petitioner No. 1 met a serious accident while driving motorcycle and was admitted in SGPGI, Lucknow. Petitioner No. 1 being engaged in looking after his younger brother could not pursue the matter for almost one and half month. When his brother showed some recovery, Petitioner No. 1 came to court on 2.1.1990 and was informed that some order had already been passed on 26.12.1989. However, he could not inspect the record on that day. The next date was holiday and, therefore, inspection could be made only on 4.1.1990 when he found that on 12.10.1989 the matter was adjourned, where after several dates were fixed for evidence, and ultimately on 26.12.1989 ex-parte order was passed. He immediately moved an application on 4.1.1990 for recall of the order dated 26.12.1989. No objection was filed on behalf of the Respondents to the said application but the Prescribed Authority observing that the order dated 26.12.1989 having been passed on merits is not an ex-parte order and hence rejected the said application vide order dated 29.1.1990.

(3.) It is contended that the Commissioner also having failed to consider this aspect of the matter, has erred in law and, therefore, the appellate order is also liable to be set aside. Reliance has been placed on judgment of Apex Court in the case of Collector, Land Acquisition, Anantnag and Anr. v. Mst. Katiji and Ors.,1987 1 ARC 288. Sri Singh contended that ordinarily a litigant does not stand to benefit by lodging an appeal (application in the present case) belated and there is no presumption that delay is occasioned deliberately or on account of culpable negligence or mala fide. He contended that Court must follow and adopt the approach of substantial justice by deciding matter on merit and should be ready in entertaining the application even if some delay occurs unless something crucial is found otherwise.