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2025 DAILYLAW 3774 (HP)

Kuldeep Chand v. Sodhi Ram

2025-10-28

Ajay Mohan Goel

body2025
JUDGMENT : Ajay Mohan Goel, J. By way of this petition, the petitioner has assailed order dated 18.08.2022 (Annexure P-4) passed by Sub Divisional Collector, Una, District Una, H.P., in terms whereof, the appeal filed by the petitioner under Section 14 of the H.P. Land Revenue Act, against the order of Assistant Collector, 1st Grade, Una, dated 03.08.2020 was dismissed alongwith an application filed under Section 5 of the Limitation Act by holding that the proceedings were time barred, besides making certain observations on the merit of the case also 2. Learned Counsel for the petitioner submitted that the petitioner had assailed the order passed by Assistant Collector, 1st Grade, Una, dated 03.08.2020, which was passed during the COVID-19 Pandemic. He submits that in terms of the order passed by the Hon’ble Supreme Court of India in miscellaneous application No.21 of 2022, in Suo Motu Writ Petition (C) No.3 of 2020, in re- cognizance for extension of limitation, Hon’ble Supreme Court was pleased to hold vide order dated 10.01.2022 that the period from 15.03.2020 till 28.02.2022 shall stand excluded while computing the period prescribed for the purposes of limitation. Learned Counsel further submitted that as the order under challenge was passed within the said period and the appeal was preferred on 11.01.2022 within this period, there was no occasion for the Collector to have had dismissed the appeal as being time barred. Accordingly, he prayed that as the impugned order is per se bad, the same be quashed and set aside. 3. On the other hand, learned Senior Counsel appearing for the respondents submitted that the petitioner himself filed the appeal alongwith an application under Section 5 of the Limitation Act, which was dismissed by the Authorities and in light of the matter, now the petitioner cannot be allowed to agitate the order by raising the ground that the appeal was not time barred. Accordingly, learned Senior Counsel prayed that as there is no merit in the present petition, the same be dismissed. 4. I have heard learned Counsel for the parties and have also gone through the impugned order. 5. It is a matter of record that the appeal preferred by the petitioner was against the order passed by Assistant Collector, 1st Grade, dated 03.08.2020. The appeal was preferred on 11.01.2022 and it was dismissed on 18.08.2022. 4. I have heard learned Counsel for the parties and have also gone through the impugned order. 5. It is a matter of record that the appeal preferred by the petitioner was against the order passed by Assistant Collector, 1st Grade, dated 03.08.2020. The appeal was preferred on 11.01.2022 and it was dismissed on 18.08.2022. The relevant portion of the appellate order passed by the Authority reads as under:- “6. Perused the record placed on file minutely and gone through the arguments put forth by the Ld. Counsel for the parties. All co-sharers of the joint Khewat including Kuldeep Chand filed application before the A.C. 1st Grade, Una along with affidavit duly signed by them for giving effect to the mutual partition conducted by them who attested the mutation in their presence. Hence it cannot be said that the proceedings impugned order were passed in the absence of applicant. Thus the application and appeal have been filed by suppressing the material facts with far fetching story. In fact, no application/appeal lies against domestic partition. However there is no sufficient cause to condone of the delay and application under section 5 of the limitation act is time barred due to efflux of limitation period filed after fifteen months against the stipulated period of one month. Procedure adopted of domestic partition by the Trial Court is as per law and no grounds of appeal is worth consideration as partition was conducted by the parties themselves. Hence both Limitation  application  and  appeal  deserves  to  be dismissed. As discussed in the foregoing u/s 5 of the limitation Act and appeal u/s 14 of the H.P. Land Revenue Act devoid of any merit which are both ordered to be dismissed. Record be returned and file after completion be consigned to record room, Una.” 6. It is apparent from the perusal of the order passed by the Authority that it rejected the application filed by the petitioner under Section 5 of the Limitation Act by holding that there was no sufficient cause shown by the petitioner to condone the delay and further no appeal was maintainable against domestic partition. 7. It is apparent from the perusal of the order passed by the Authority that it rejected the application filed by the petitioner under Section 5 of the Limitation Act by holding that there was no sufficient cause shown by the petitioner to condone the delay and further no appeal was maintainable against domestic partition. 7. This Court is of the considered view that in light of the fact that the impugned order was passed by the Authority on 18.08.2022 and Hon’ble the Supreme Court as far back as on 10.01.2022 was pleased to hold in Civil Miscellaneous Application No.21 of 2022 in Suo Motu Writ Petition (C) No.3 of 2020 (supra) that the period from 15.03.2020 to 28.02.2022 was to be excluded for the purpose of calculating limitation, there was no occasion for the Authority to have had dismissed the appeal by holding that the same was time barred as the appeal was to be threated as having been filed within limitation. No only this, there is one more flaw in the impugned order and the same is that while dismissing the appeal by holding that the same was time barred, observation was also made with regard to its maintainability on merit, which is not sustainable in law. 8. This Court in a plethora of cases has made this observation, that if an Authority or a Court is rejecting an appeal or a proceeding on the ground that the same is time barred, then such Court or Authority should not comment on the merits of the case as it prejudices the affected party. 9. Be that as it may, in light of the fact that the appeal filed by petitioner could not have been dismissed on the ground that the same was time barred, the impugned order dated 18.08.2022 (Annexure P-4) is quashed and set aside by allowing the petition and by further ordering that the main appeal be taken up on board by the Authority concerned and be decided on merit. The parties through Counsel are directed to appear before the Authority concerned on 10.11.2025. The Authorities shall make an endeavour to decide the appeal on or before 31.12.2025. 10. The petition stands disposed of in above terms. Pending miscellaneous application(s), if any also stand disposed of accordingly.