Manoj Kumar Gupta, J. - Heard counsel for the petitioners and learned standing counsel on behalf of respondent Nos. 1 & 2.
2. Assistant Settlement Officer (Consolidation) allowed Appeal No. 452/30 by order dated 28 July 1995 on the basis of a compromise allegedly
entered into between the parties. The third respondent, one of the parties to the appeal, filed an application on 1 September 2015 for recall of the
order dated 28 July 1995 along with an application under section 5 of the Limitation Act for condoning the delay. The petitioners opposed the
application by filing objections alleging that the restoration application is barred by limitation. On the same date on which objections were filed by
the petitioners to restoration application, they filed a separate application praying that their plea regarding maintainability of the restoration
application as well as their objections against section 5 application be decided before taking up the restoration application on merits. The
Settlement Officer (Consolidation) by impugned order dated 17 August 2016 fixed 30 August 2016 as the date for disposal of section 5
application as well as for consideration of the plea of the petitioners regarding non-maintainability of the restoration application. Aggrieved thereby,
the petitioners preferred a revision before the Deputy Director of Consolidation contending that the Settlement Officer (Consolidation) had
adopted an illegal procedure in posting section 5 application for being decided along with restoration application. It was contended that section 5
application is required to be decided before the restoration application. The Deputy Director of Consolidation dismissed the revision by impugned
order dated 29 September 2016. Aggrieved, the petitioners have approached this Court by way of instant writ petition.
3. Learned counsel for the petitioners has placed reliance on a decision of this Court in Jais Lal v. Deputy Director of Consolidation, Jaunpur
and others, 2014 (1) ADJ 248 in contending that the appellate authority had erred in posting both the applications for disposal on the same date.
It is submitted that there has to be a time gap between the disposal of the application under section 5 of the Limitation Act and the restoration
application.
4. The Revisional Authority while dismissing the revision has examined the aforesaid plea of the petitioners by taking into consideration the grounds
on which the restoration application has been filed. It noted that the restoration application has been filed on the ground that he was not served with
any summons and the alleged compromise on the basis of which the appeal was decided does not bear his signatures; the order was procured
from the Appellate Authority by playing fraud upon it. The Revisional Authority has held that such stand taken in the restoration application is
bound to be taken into consideration while considering the question relating to condonation of delay. Consequently, the Revisinoal Authority did
not find any illegality in the order of the Settlement Officer (Consolidation) whereby the prayer for condonation of delay as well for setting aside the
order was directed to be taken up for consideration on the same date.
5. In Jais Lal v. The Deputy Director of Consolidation (supra), this Court accepted the submission that the application seeking condonation of
delay as well as the restoration application can be decided simultaneously, but held that the main matter i.e. the appeal/revision/suit cannot be
decided unless the delay is condoned. Relevant observation made in this regard in paragraph 5 of the judgment on which much reliance has been
placed by the learned counsel for the petitioners is as under : -
Learned Standing Counsel may be right in his submissions that both the things can be done simultaneously, but one thing is settled that unless the
delay is condoned, the appeal/revision/suit will not be competent and the same cannot be decided on merit. Therefore, even if the Deputy Director
of Consolidation is proceeding to decide both the things simultaneously, he is directed to decide the question of limitation first either by condoning
the delay or by refusing to condone the delay. In the event of condonation of delay, he may decide the matter on merit, but not prior to one month
from the date the order passed on the application filed under section 5 of the Limitation Act for the reason that an order condoning or refusing to
condone the delay would confer a right upon an aggrieved party to challenge the same before higher court.
6. The entire argument of the learned counsel for the petitioners thus proceeds on a complete misunderstanding of the observations made by this
Court in the above judgment. It is no-where held in the said judgment that the delay condonation application and the restoration application could
not be considered simultaneously. On the contrary, the Court has accepted the contention of the learned Standing Counsel that both the
applications can be decided simultaneously. The Court has only held that in the event of an order being passed on delay condonation application
and the restoration application, the main matter on merits should not be decided on the same date so as to enable the party aggrieved to challenge
the order before a higher Court.
7. This Court is in complete agreement with the view of the Revisional Authority that having regard to the nature of plea taken by the contesting
respondent in seeking recall of the order, it is but necessary that both the applications are decided simultaneously. Thus, Court has no doubt in its
mind that even if the delay is condoned and the application seeking recall is allowed, the appellate authority will not proceed to decide the appeal
on merits on the same date but will fix another date for such purpose.
8. The petition thus lacks merit and is dismissed.