1 Neutral Citation No. - 2025:AHC-LKO:24233 Judgment reserved on 08.04.2025 Judgment delivered on 29.04.2025 Case :- MATTERS UNDER ARTICLE 227 No. - 18595 of 2020 Petitioner :- Smt. Asha Sharma Respondent :- Smt. Lata Khanna And Anr. Counsel for Petitioner :- Suresh Chandra Shukla,Pravin Kumar Verma,Vibhu Shankar Counsel for Respondent :- Aakash Prasad,Amitav Singh,Ashok Kumar Bajpai,Jagdish Prasad Vaish,Janardan Bajpai Hon'ble Pankaj Bhatia,J. 1. Heard Sri Vibhu Shankar and Sri Pravin Kumar Verma, learned Counsel for the petitioner and Sri Akash Singh, learned Counsel for the respondents. 2. The present petition under Article 227 of the Constitution of India has been filed by the petitioner challenging the order dated 03.03.2020 passed in Misc. Case No.299 of 2014 as well as the judgment and order dated 19.05.2006 passed in R.S. No.32 of 2001. 3. The facts in brief are that the petitioner, who is a widow, claims to be the owner of the property bearing House No.D-3010, Indra Nagar, Lucknow. Her children are said to be settled outside India. It is stated that after the death of her husband, she had executed a registered sale deed in favour of the opposite parties vide deed dated 07.11.2000, which was duly registered in consideration of the amount of sale. It is alleged that three cheques were issued to the petitioner amounting to Rs.7/- lac, however, when the same were presented to the Bank, the same were returned uncashed on account of cheques not bearing the account numbers. As according to the petitioner, the lawful sale consideration was not paid, a suit came to filed being R.S. No.32 of 2001 (Annexure-4 to the writ petition), in which, a declaration was 2 sought that the sale deed dated 07.11.2000 be declared as inoperative, ineffective, voidable having no force of law. 4. In the suit, the opposite parties put in appearance and filed written statement on 26.03.2002 and an order of status quo was also passed in the said suit. Subsequently, on the basis of pleadings as many as 9 issues were framed vide order dated 14.05.2002 and one of the issues being Issue No.8 is with regard to the deficiency in payment of court fees. The said issue was decided on 16.01.2006 and the petitioner- plaintiff was directed to pay the court fees (Annexure-8 to the writ petition). Subsequently, on 16.02.2006, the opposite parties filed an application under Order VII Rule 11 (c) of the C.P.C. for rejection of the plaint as the deficit court fees has been paid. Aggrieved by the order dated 16.01.2006, the plaintiff had preferred a revision before this Court being Civil Revision No.42 of 2006, however, during the pendency of the revision, an order came to be passed on 19.05.2006 whereby, the suit was dismissed in exercise of powers under Order VII Rule 11 (c) of the C.P.C. As the civil revision was pending, the same came to be dismissed on 13.09.2006 by this Court in view of the fact that the suit itself had been dismissed, however, the plaintiff was permitted to take such remedies as may be available and it was further observed that the court shall take into account the time spent by the plaintiff in pursuing the proceedings before the High Court. 5. In furtherance of the order dated 13.09.2006 passed by this Court, the plaintiff-petitioner claims that through her Power of Attorney holder, namely, Sri Deepak Pathak submitted duly signed application dated 04.10.2006 under Section 148 read with Section 151 of the C.P.C. for recall of the order dated 19.05.2006 and also sought for restoration of the Regular Suit No.32 of 2001. It is claimed by the petitioner that she had transmitted the requisite court fees of Rs.1,14,000/- as was found to be deficient in view of the order dated 16.01.2006. It was further 3 the case of the petitioner that she was seriously ill and as such, she was shifted to Australia for her treatment, where her children were stayed, and she stayed there till November, 2014 and in the interregnum period, she also visited Bombay (India) for her treatment, where she was admitted in Bombay Hospital and she always believed that the application has already been filed and the case is pending, however, in the year 2014, when she visited Lucknow, she came to know that the application was never filed and the money was also kept by the Counsel. In the said circumstances, the petitioner was advised to file a fresh review application which was number as Review Application No.299 of 2014 for reviewing of the judgment and order dated 19.05.2006. An application for condonation of delay under Section 5 of the Indian Limitation Act was also filed, however, the said application and the review application came to be dismissed by the trial court vide order impugned dated 03.03.2020 (Annexure-1). The trial court in the order impugned recorded that the stand taken by the petitioner appears to be contradictory. Challenging the said order, the present petition was filed. 6. The Counsel for the petitioner argues that the petitioner being an old lady and a widow was not aware with the niceties of the litigation and was dependent on the advisors and was advised to pay the court fees, which was paid to the Counsel, however, she was not aware of the fact that despite paying the court fees, the application, which was to be filed, was never filed by the then counsel. It is further argued that the petitioner has been duped on her property without even payment of the sale consideration as the cheques, which were given for payment of the sale consideration, were returned dishonoured when presented to the Bank. He thus argues that the petitioner should be permitted to contest the suit on merits and should not be denied the benefit of contest of the suit on technical ground. It is further undertaken that the petitioner is always ready and willing to pay the deficient court fees. 4 In the present petition, a specific assertion with regard to non-payment of the sale consideration has been asserted in paras 7 and 8 of the petition. The Counsel for the petitioner places reliance on the following judgments in support of his case: “1. Suraj Lamp and Industries Private Limited vs State of Haryana and another: (2012) 1 SCC 656; 2. State of Rajasthan and others vs Basant Nahata: (2005) 12 SCC 77; 3. Amar Nath vs Gian Chand and another: (2022) 11 SCC 460 4. Purshottam Das Mishra vs Deputy Director of Consolidation, Lucknow and others: [2015 (33) LCD 1944]; 5. Rafiq and another vs Munshilal and another: AIR 1981 SC 1400; 6. Smt. Lachi Tewari and another vs Director of Land Records and others: AIR 1984 SC 41 7. Collector, Land Acquisition Anantnag and another vs Mst. Katiji and others; (1987) 2 SCC 107 8. Parvez Parwaz and another vs State of U.P. and others: 2017 SCC OnLine All 4880; 9. Ram Kumar Gupta and others vs Har Prasad and another: (2010) 1 SCC 391 10. G. Ramegowda, Major and others vs Special Land Acquisition Officer, Banglore: (1988) 2 SCC 142 and 11. Esha Bhattacharjee vs Managing Committee of Raghunathpur Nafar Academy and others: (2013) 12 SCC 649.” 7. In reply to the abovesaid paras 7 and 8 of the petition, a counter affidavit has been filed wherein a stand has been taken by the opposite parties that although the cheques were paid, however, later on, the sale consideration was paid in cash and the cheques were required to be 5 returned, however, the petitioner presented the cheques to the Bank, which was a mala fide act. It is further argued by the Counsel for the opposite parties that despite an order passed by the trial court for depositing the court fees, neither the court fees was paid nor the plaintiff presented herself before the trial court and thus the trial court had rightly dismissed her suit in exercise of power under Order VII Rule 11 (c) of the C.P.C. and the review application filed after a gap of 8 years was also rightly dismissed by means of the impugned order. 8. During the course of the argument, the Counsel for the opposite parties had opposed the petition on various grounds including the ground that after the dismissal of the suit, the remedy open to the plaintiff was to prefer an appeal whereas a review application was filed. It is further argued that in fact, the power of attorney filed along with the petition was a subsequent power of attorney, which was got executed earlier in point of time and in view thereof, the petition deserves to be dismissed on that ground also. The Counsel for the opposite parties in support of his case strongly relied upon the following judgments: 1. Rahimal Bathu and others vs Ashiyal Beevi: MANU/SC/1061/2023; 2. Manohar and others vs Jaipalsingh and others: MANU/SC/8117/2007; 3. Roshan Kurian vs Mariyam: MANU/KE/0385/2024; 4. J.M. Kohil vs Vimal Kanta: MANU/DE/7213/2024 5. N. Ramakrishna Reddy vs C. Venkatrami Reddy and others: Civil Revision No.5544 of2018: decided on 01.02.2024 [In The High Court of Andhra Pradesh at Amaravati); 6. Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and others vs Tuticorin Educational Society and others; MANU/SC/1365/2019; 6 7. Mohamed Ali vs V. Jaya and others: MANU/SC/0863/2022; 8. Taj Mohammad vs Nawab Ahmad and another: 2019:AHC:175393 9. Aqama Builders and Developers Limited vs Civil Judge, Senior Division, Malihabad Lucknow and others: MANU/UP/1290/2022; 10. Syed Wasif Husain Rizvi vs Hasan Raza Khan and others: MANU/UP/0379/2016; 11. Salil Dutta vs T.M. and M.C. Private Limited: MANU/SC/0473/1993; 12. Rajneesh Kumar and others vs Ved Prakash: MANU/SC/1240/2024; 13. The U.P. State Employees Welfare Corporation, Lucknow vs M/s Victory Oil Gram Udyog Association, Nurpur, Kangara, H.P.: 2025:AHC-LKO:16339; 14. Mela Ram & Sons vs The Commissioner of Income Tax Punjab: MANU/SC/0038/1956; 15. Shyam Sundar Sarma vs Pannalal Jaiswal and others; MANU/SC/0944/2024, and 16. Ram Prasad and others vs Additional District Judge, Court No.4, Special Judge (E.C. Act), Sitapur: MANU/UP/4015/2019.” 9. Considering the submissions made by the parties and recorded above and the judgments cited and form the perusal of the order impugned, it is clear that the review application has been dismissed merely on the ground that the delay condonation application was not sufficiently explaining the delay in filing the review application and the explanation offered was not believable, as such, the delay was not liable to be condoned. The court noticed the mandate of Order 47 and also noticed the contention of the plaintiff that on account of long illness, the plaintiff was residing at Australia for the period 2005- 2014. The Court noticed that the plaintiff had submitted the medical documents to prove that she was undergoing medical treatment at 7 Bombay in the year 2007 and thus, the contention that she she was at Australia was contradictory to the material placed on record, as such, the cause was not sufficient to condone the delay. The said reasoning recorded by the trial court while dismissing the application filed under Section 5 of the Indian Limitation Act and finding the application to be improper qua based upon the assertion that she remained at Australia till November, 2014. The said view taken by the trial court, is a narrow view in view of the fact that although it has been specifically stated that she remain at Australia till November, 2014, however, the medical documents on record demonstrate that she was treated for her ailment at Bombay during the intervening period. Merely because she stated that she was in Australia for the entire time does not wipe away the fact that she was seriously ill and had also undergone treatment at Bombay. 10. It is well settled that the condition of delay to be taken based upon the entire conspectus of the facts and the material evidence available. The idea was to demonstrate before the court that the application could not be prefer within time on account of the ailment of a widow lady, who was more than 72 years of age when the review application was filed. The trial court has also not taken into consideration the fact that the application, according to the plaintiff, was directed to be filed by the counsel to whom, the amount were also paid for depositing the court fees, however, the same were not filed by the counsel. The material on record, in the present case also, prima facie, denotes that the court fees was paid to the lawyer, however, no application was filed. 11. Considering the age of the plaintiff and the fact that she was a widow not aware of the niceties of the litigation, ought to have weighed heavily in the mind of the Civil Judge, who has decided the delay condonation application. It is also further placed on record that the property has not been further sold by the opposite parties and the 8 status of the property remain as it is, as such, no adverse circumstances have transpired in the meanwhile. 12. Considering the fact that the procedure cannot defeat the cause of justice and the petitioner has undertaken to pay the deficit court fees as and when directed, the order impugned dated 03.03.2020 and the order dated 19.05.2006 are not sustainable and are quashed. The writ petition stands allowed. 13. The matter is remitted to the Civil Judge, Junior Division, Lucknow for rehearing the suit on merits subject to the petitioner depositing the court fees as assessed and decide the Issue no.8 within a period of two months from today. 14. As the suit is of the 2001 and the issues have already been framed, the trial court is directed to take necessary steps for expeditious disposal of the suit without giving any unnecessary adjournment to any of the parties. 15. I have not gone into the judgments cited by the Counsel for the parties for the simple reason that I find that dismissal of the application on the ground of there being no sufficient cause for condonation of delay has only been decided by means of this judgment. The parties would be at liberty to take their stands in the suit, which shall be decided in accordance with law. Order Date:29.04.2025 akverma (Pankaj Bhatia,J.) Digitally signed by :- ASHOK KUMAR VERMA High Court of Judicature at Allahabad, Lucknow Bench