RAMESHWAR Vs. KISHORILAL

JUDGEMENT

(1.) THIS is an appeal against the order of the S. D. O. Gangapur, dated 26. 9. 59 in a matter for correction of entries in the Settlement Records against an area of 9-3/4 Bighas of Khasra No. 2578 of village Raisana.

(2.) WE have heard the learned counsel for the parties and examined the record. A preliminary point has been raised on behalf of the respondent that the appeal was time barred, the same having been presented on 2. 3. 60 against the judgment dated 26. 9. 59, clearly after the expiry of 90 days and no regular application having been submitted for the condonation of delay for any sufficient reason under Sec. 5 of Indian Limitation Act, and that this appeal could not therefore be heard. No separate application has been submitted for an action under sec. 5 of the Limitation Act. But in para No. 5 of the memorandum of appeal itself a request has been made in this connection on the ground that the appellant came to know of the impugned order only on 17. 1. 60. No affidavit, however, has been submitted to support this allegation. Rule 17 (d) of the Rajasthan Revenue Courts Manual Part 1 requires that in the case of memorandum of appeal which is filed after the expiry of limitation an application supported by an affidavit for extention of the period of limitation under sec. 5 of the Indian Limitation Act "shall accompany the memorandum of appeal". There is thus a clear breach of this rule. It has been argued by Shri Tiwari in this connection that when impugned order was passed behind his back the date of the order should be deemed to be the date on which he came to know of it and the period of limitation should be calculated from that date. He has cited authorities in this behalf, and it has been contended therefore that no such application nor any affidavit was required to be filed by him. In the first place this contention is belied by the very wordings of para 5 of the memorandum of appeal filed by him. He has himself requested therein to give the benefit of sec. 5 of the Limitation Act to the appellant. If the date of the order was to be the date of the knowledge thereof by his client in this case and the period of limitation was also to be counted from that very date, there would not have remained any need of his making a request for being given the benefit of sec. 5. The law, however, is that no appeal can, vide sec. 78 of the Rajasthan Land Revenue Act 1956, lie to the Board after the expiry of 90 days from the date of the order to which objection be made. The appeal is against the order dated 26. 9. 59. The period of limitation would therefore run from the date of this order. This Order could have been deemed to have been passed not on 26. 6. 59, but on such other date, as the appellant claimed, he came to have knowledge thereof, in case where hearing was continuing on dates and a further adjournment had been made without fixing any dace and on such date without any pervious information and the judgment had been pronounced and the information thereof had also not been given to them. In that case also it could have been so done only under sec. 5 of the Indian Limitation Act, and not otherwise, if the statute fixing the period of limitation for an appeal would have so fixed the period so as to commence from the date of the order against which the appeal was made. In this case as stated above the period of 90 days having been fixed by sec. 78 referred to above from the date of the order, the absence of knowledge of the same by the appellant could be considered to be a sufficient cause for condoning the delay in the filing of the appeal by the appellant only under sec. 5 of the Indian Limitation Act. For getting the benefit thereof however the statutory rules framed under sec. 261 of the Rajasthan Land Revenue Act have prescribed a certain procedure vide R. 17 (d) referred to above. The rules are mandatory, and the appellant followed them, his request for condoning the delay could very well be refused to be considered. Shri Tiwari has not been able to show us any authority which could enable us to have the compliance of this mandatory provision of law. It is so evidently necessary that the appellants should have filed an affidavit also to support his claim that he came to have the knowledge of the order appealed against only on 17. 1. 60 and not before. There is no provision nor any authority, to support the contention that in cases of having a knowledge of an order long after the passing thereof also a full period of limitation prescribed by law would be allowed to the appellant. From such a date of knowledge, he is expected to expedite the matters after that and has to bring his case before the appellate court in the manner prescribed as discussed above as soon as possible, and if he does not do so he must be made liable to explain every days delay made by him in this behalf. There is nothing so far on the record to show that the appellant came to have the knowledge of the order appealed against only on 17. 1. 60. Nor is there any thing on record to support his contention that he came to have the knowledge thereof when he made the application for the copy of certain records. It is ofcourse true that the order has been passed by the learned S. D. O. without calling the parties or letting them have an opportunity of being heard. Nor has he passed any order to convey the information of the same to them. But that by itself cannot be sufficient to go to show that the appellant came to have a knowledge thereof only on 17. 1. 60. Much less can it meet the requirements of law that he has had sufficient reasons for not preferring the appeal even upto 2. 3. 60 after that. The appeal therefore can be neither treated to have been filed within the period of limitation; nor can there be held to have been a sufficient cause otherwise for its being preferred on 2. 3. 60 and condoning the delay under sec. 5 of the Limitation Act.