Madan Mohan vs State of U.P.and others

M. P. Mehrotra, J.

This petition arises out of the proceedings under the U. P. Imposition of Ceiling on Land Holdings Act, 1960.

The facts, in brief, are these.

The petitioner was issued the notice under Section 10 (2) of the Act and he filed objections. They were decided by the Prescribed Authority by his order dated 9121974, a true copy whereof is Annexure 1 to the petition. Thereafter an appeal was filed and the appellate Court dismissed the said appeal in default on 1391977. Thereafter an application was moved by the petitioner praying for the setting aside of the said order dismissing the appeal in default, A true copy of the said application is Annexure 3 to the petition. The application was rejected by the appellate Court on the ground that it was barred by time. The appellate Court did not grant the benefit of Section 5 of the Limitation Act to the petitioner. The appellate Court in its order dated 2151978 (a certified copy whereof is on the record as Annexure 4 to the petition) observed :

"It was the duty of the appellant to enquire regarding the progress of the appeal and if he failed to do so, it is the applicant himself who is to be blamed for the said act."

In my opinion, the aforesaid view of the Court below is not tenable, From the copy of the ordersheet of the appellate Court which has been appended as Annexure 2 to the petition, it is obvious that the appeal was transferred from the Court of the Additional District Judge I, to the Court of the 4th Additional District Judge on 2571977. It has been asserted that no notice 57 of the said transfer was given to the petitioner or his counsel. This assertion was made by the petitioner in his application for setting aside the aforesaid order of the appellate Court dismissing the appeal in default. It has also been asserted in the said application that the date of hearing fixed in the transferee Court, i. e., 1391977, was not intimated to the petitioner or his counsel These allegations were never controverted on behalf of the State in the appellate Court. The appellate Court also in its impugned order did not say that the necessary intimation had been given to the petitioner or his counsel about the transfer of the appeal and of the date fixed for hearing in the transferee Court, On the contrary, the appellate Court observed that it was the duty of the petitioner to go on making inquiries endlessly regarding the progress of the appeal. In my view, there is no such duty cast on an appellant. In accordance with the well known position, it is the duty of the Court to give intimation of the transfer of a case or appeal from one Court to another and thereafter the date fixed for hearing must be intimated to the counsel for the parties.

Accordingly, this petition is allowed and the order of the appellate Court dated 215=1978 is hereby quashed. In the facts of the case, the application for setting aside the order dismissing the appeal in default stands allowed and the appeal shall be heard by the appellate Court after intimating the petitioner or his counsel about the date of hearing to be fixed in the appeal. There shall be no order as to costs.