Allahabad High Court: In a miscellaneous application filed against the order passed by the District Judge in a defective revision, being barred by time, Ajit Kumar, J. directed the appearance of the District Judge along with the original record of the case stating that the order sheet reflects that the District Judge is in the habit of committing impropriety in discharge of his judicial function.
Earlier, the Court had questioned how the case wasadvanced by two weeks to pass the order which was not reflected in the order sheet. It is a well settled law that unless and until Section 5 application is allowed, neither the appeal nor the revision can be held to be a competent one. Further, the same District Judge had earlier committed similar mistake by admitting one revision petition without condoning the delay under Section 5 of the Limitation Act and when the matter was filed before this Court under Article 227 and the report was summoned, the District Judge submitted a report that it had happened due to oversight.
The Court noted that it took lenient view in the matter and refrained from referring to the matter of judicial conduct on the administrative side. However, in the present case, the Court stayed the orders dated 12-10-2022 and 1-11-2022 passed by the District Judge.
The matter was then taken up on 28-11-2022, wherein the District Magistrate submitted that the said act was done in good faith with bona fide intention, only to ensure that Small Causes Court Revision (‘Revision’) should not get frustrated only due to the pendency of Section 5 application.
The Court, not doubting the bona fides of the District Judge, maintained the legal position of Section 5 stating that the Revision order was a defective for admitting without condoning the delay. The Court further emphasised on Order XLI Rule 3-A of the Code of Civil Procedure, 1908 (‘CPC’) stating that in the event of a time barred appeal with a pending Section 5 application, the Court shall not stay the execution of the decree appealed against so long it does not hear the appeal under Rule 11.
The Court further said that there may be instances where the interest of justice may demand Court’s interference to avoid frustration of proceedings due to technicalities, however, in the present instance nothing restrained the District Judge from deciding Section 5 application.
While passing the order exercising the supervisory jurisdiction under Article 277 of the Constitution of India, with the direction to decide the Section 5 application on its own merits, the Court honorably discharged the District Judge from notice, expunging the previously made observations regarding his conduct
[Asheem Kumar Das v. Manish Viswas, Matters Under Article 227 No. – 10301 of 2022, decided on 21-11-2022]
*Apoorva Goel, Editorial Assistant has reported this brief.
