Surya Pati vs Deputy Director of Consolidation, Bahraich and Others

A.N. Verma, J.—Dispute between the petitioner and opposite party no.2, decided by the Consolidation Officer on 30.12.88 on the basis of a compromise said to have been entered into between the parties, was made subject matter of challenge by the petitioner by filing an appeal on 14.3.96. Since, the appeal was time barred, therefore, an application under Section 5 of the Limitation Act, for condonation of delay was also preferred. The Settlement Officer, Consolidation, vide its judgment and order dated 23.09.98 condoned the delay. Being aggrieved against the same the opposite party no.2 filed a revision before the opposite party no.1, who vide its judgment and order dated 26.04.03 allowed the same and remanded the matter back to the Settlement Officer, Consolidation, for consideration afresh on the question of cause of delay. The Settlement Officer, Consolidation, vide its judgment and order dated 13.12.2004 condoned the delay and fixed 23.12.2004 for hearing.

Being not satisfied with the aforesaid judgment and order, the opposite party no.2 filed a revision before the opposite party no.1. Vide judgment and order dated 05.03.05 the opposite party no.1 allowed the revision preferred by the opposite party no.2. It is against the said judgment and order that the petitioner has approached this Court in the instant writ petition.

Sri Jai Shanker Mishra appeared on behalf of opposite party no.2 and also filed a counter affidavit on her behalf.

The submission of the learned counsel for the petitioner, Sri B.R. Tripathi, is that the opposite party no.1 committed a manifest error in allowing the revision preferred by the opposite party no.2 inasmuch as it failed to appreciate the cause which the petitioner had explained before the Settlement Officer, Consolidation in filing the appeal beyond the period of limitation. According to him, the opposite party no.1 was only impressed by the fact that since the petitioner had appended her signature on some records of the bank as well as on the compromise whereas in the application that she had preferred for condonation of delay, she filed her Vakalatnama wherein she had put her thumb impression, therefore, her case that she was illiterate lady stood belied. According to the learned counsel, this alone could not be a ground for allowing the revision.

In opposition, the learned counsel for the opposite party submitted that the delay in filing the appeal was condoned by the Settlement Officer, Consolidation, on totally irrelevant considerations and in view of the fact that there was material contradictions in the fact as to whether or not the petitioner was a literate, and positive findings have been recorded by the opposite party no.1 to the same effect, the impugned order according to him does not suffer from any infirmity and thus does not deserve to be interfered with.

Mere fact that a person is able to write his or her name on some papers does not lead to an indefeasible inference that he or she is literate and is in a position to understand various implications of a document executed against his or her interest. Moreover, in her appeal, the petitioner had specifically pleaded that she was an old, infirm and widowed lady and the opposite party no.2 had obtained the signature of an imposter on the compromise said to have been signed by her, about which she only learnt on 13.3.90 whereupon she filed an appeal and moved an application for condonation of delay.

The opposite party no.1 failed to appreciate that an old, infirm and a rustic lady is entitled the same benefits as is available to a pardahnashin lady as has been held by this Court in Parasnath Rai and other v. Tileshra Kumar reported in 1965 ALJ page 1080. The observations made in the said report are as follows:

�Obviously it is not by reason of the Paradah itself that the law throws its protection round a Pardahnashin lady but by reason of those disabilities which a life of seclusion lived by a Pardahnashin lady gives rise to, and which are consequently presumed to exist in the case of such a lady. But the disabilities which make the protection necessary may arise from other causes as well. Old age, infirmity, ignorance, illiteracy, mental deficiency, inexperience and dependence upon others, may by themselves create disabilities that may render the protection equally necessary. If, therefore, it is proved that a woman, although she is not a Pardahnashin lady, suffers from the disabilities to which a Pardahnashin lady is presumed to be subject, the validity and the binding nature of a deed executed by her have to be judged in the light of those very principles which are applied to a deed by a Pardahnashin lady.�

Further, a perusal of the impugned order reveals that it does not make any discussion with regard to sufficiency of cause which prevented the petitioner in approaching the Court within the time prescribed. The opposite party no.1 appears to have been completely oblivious of the fact that every cause which prevents a person from coming to Court in time amounts to a sufficient cause. Moreover, discretion ought to have been exercised by the opposite party no.1in favour of hearing and not to shut out hearing. The order passed by opposite party no.1 amounts to depriving the petitioner an opportunity of hearing on merits. The order impugned thus cannot be allowed to stand and deserves to be set aside.

In view of the aforesaid, the writ petition succeeds and is allowed. The impugned judgment and order dated 05.03.2005 is hereby quashed. The matter shall be taken up by the Settlement Officer, Consolidation, in appeal, who shall decide the same on merits within a period of eight weeks from the date a certified copy of this order is served upon the said opposite party after affording opportunity of hearing to respective parties.

(Petition allowed)