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Judgment
The instant second appeal is filed by the appellant defendant against the judgment dated 18/04/2007 passed by learned Additional District Judge No.2, Udaipur in Civil Appeal No.9/2002 and judgment dated 09.10.2001 passed by Civil Judge (Junior Division), City North, Udaipur in Civil Original Case No.254/96. The trial Court has decreed the suit of the plaintiff-respondent Nand Lal by granting permanent injunction and learned First Appellate Court has dismissed the appeal of defendant/appellant Urban Improvement Trust on ground of delay of forty eight days without deciding the first appeal on merit.
Heard the submissions of both the sides, learned counsel for the appellant has submitted that the first appellate Court has committed grave illegality, while dismissing the first appeal sheer on the ground of delay of forty eight days, the appeal was of Urban Improvement Trust, a Local Body. Relying upon the judgment in case of State of Nagaland vs. Lipok Ao and Others, RLW 2005(3) 357, learned counsel has submitted that delay of forty eight days was not wilful, which was explained and it was expected to be condoned by first appellate Court, but ignoring the mandate of law without any cogent reason, learned trial Court has passed wrong judgment by rejecting the appeal on the ground of delay, which is not tenable under the law. Public land of crores of rupees of the UIT is involved, which has wrongly been trespassed and construction is being undertaken over the land illegally. Referring extracts of evidence, it has been further argued that the respondent-plaintiff has himself accepted that he was allotted plot No.38B having a dimension of 1250 sq. feet but apparently grabbing the another land having more than double area construction is being illegally undertaken on another plot number 47-B. It has further been contended that learned trial Court has exceeded its jurisdiction by granting relief without any prayer and no such order could be passed for regularization of the land, on which the plaintiff-respondent was a trespasser and finding of learned trial Court is apparently bad, notwithstanding, the first appellate Court did not consider it and dismissed the first appeal on technical ground of delay of forty eight days, whereas delay caused was explained and was liable to be condoned, since government cannot be treated on the same footing of an individual and it has been contended to allow the appeal.
Learned counsel for the respondent, while taking support of Pundlik Jalam Patil (D) by LRs vs. Exe . Eng.
Jalgaon Medium Project & Anr, 2008 (17) SCC 448, P.K.
Ramachandran vs. State of Kerala & Anr ., AIR 1998 Supreme Court 2276, Cheelaram vs. Manak, AIR 1997 Rajasthan 284, Shankarlal vs. Mangilal, 2006(3) DNJ (Raj.)
1347) has contended that there is no illegality in the judgment impugned, both individual and government are to be treated equally on the point of delay, wilful delay can never be condoned and it is an admitted position that the plaintiff-respondent was given possession over 47-B and bonafidely permission was sought by him for construction of the premises, which was wilfully kept prolonged, so under impression of implied sanction, bonafide construction was undertaken, respondent is prepared to pay the dues as ordered by the learned trial Court for the regularisation of the land found in excess, the finding of learned trial Court as well as of first appellate Court are not bad at all, so appeal be dismissed.
Perused the record and examined the impugned judgment/s.
Pleadings reveals that Plot No.38B possessed by the plaintiff was regularized by the defendant UIT, which was allotted to plaintiff after deposit of Rs.282.78 vide receipt No.137026/12 dated 06/11/71, but despite applying for the approval of the map, the same was not sanctioned by the UIT. Later on, the scheme was revised by the defendant UIT and numbers were altered, whereas the possession was kept static and the plot of the plaintiff became 47B in place of 38B.
UIT, while filing the written statements, refuted the pleadings and pleaded that plaintiff was allotted plot No.38B and plot No.47B was allotted to Ramlal Mathur and both the plots were having different dimensions, so plaintiff was not entitled to undertake construction on another's plot and he is a trespasser thereon.
The trial Court framed following issues :-
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and decided the suit in favour of the plaintiff with a direction that if the area of plot No.47B is found more than that of 38B, then UIT to recover cost of it, at prevailing rates, thence the plot be recorded in the name of the plaintiff.
Perusal of the judgment of trial Court relating to issue No.1 at page 6, which refers to the evidence of defendant urban improvement trust narrates:-
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and plaintiff Nand Lal has admitted in his evidence that he was allotted plot No.38B and was constructing plot No.47B, which is of about 3600 sq. feet and has asserted in his cross-examination that he was not delivered documents pertaining to plot No.47B.
Application preferred under Section 5 of the Limitation Act by appellant UIT contains following reasons:-
"VERNACULAR MATTER OMITTED"
Sudhanshu Singh, tehsildar of UIT, Udaipur, which has been rejected by the first appellate Court.
Indisputably, the appellant is a local body and both the plot i.e. Plot No.38B and 47B are different plots and having different dimensions and measurements besides, respondent/plaintiff has admitted that he was not given title documents pertaining to plot No.47B.
The trial Court decreed the suit of the plaintiff Nand Lal on 09/10/2001 and the appeal has been preferred on 08/01/2002 and reason of delay of forty eight days, explained in the application, does not appear to be non-bonafide because delay of forty eight days for which explanations have been given in the application, which is supported by an affidavit of Tehsildar may not be said to be unexplained, moreover the delay is also not protracted but is of forty eight days, besides it the lis involves stake of pubilc land involving crores of rupees, which has remained undecided on merit.
Hon'ble Supreme Court in State of Nagaland
vs. Lipok Ao and Others (supra) has observed that pragmatism in justice oriented approach be there and has held in para 21 that Government decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red-tape in the process of their making and in Pundlik Jalam Patil (D) by LRs
vs. Exe . Eng. Jalgaon Medium Project & Anr (supra), Hon'ble
Supreme Court has observed in para 25 :-
25.It is true when the State and its instrumentalities are the applicants seeking condonation of delay they may be entitled to certain amount of latitude but the law of limitation is same for citizen and for Governmental authorities. Limitation Act does not provide for a different period to the government in filing appeals or applications as such. It would be a different matter where the Government makes out a case where public interest was shown to have suffered owing to acts of fraud or collusion on the part of its officers or agents and where the officers were clearly at cross purposes with it.
Upon considering all the facts and in the aforesaid backdrop, it appears to be just and reasonable to allow the appeal and remit back the appeal to the first Appellate Court to decide the appeal on merit. Therefore, application seeking condonation of forty eight days delay preferred by the appellant before the first Appellate Court is hereby allowed and the matter is remanded to the first Appellate Court for hearing and deciding it afresh after affording hearing opportunity to both the sides. Both the parties may appear before the first appellate Court on 15th July, 2017.
Copy of the judgment and record of the court/s below be sent back forthwith. The appeal stands disposed of in aforesaid terms.