It is common knowledge that the appeals/revisions are sometimes filed beyond the statutory timeline and the memo of appeal/revision is accompanied by application for condonation of delay. The Courts sometimes proceed with the hearing of lis or sometimes decide the injunction application before deciding the application for condonation of delay. The Apex Court and the various High Courts have categorically held that the Courts should first decide the application for condonation of delay before hearing appeal/revision and should refrain from granting injunction before deciding the application for condonation of delay.

The Apex Court in Gagandeep Pratishthan Pvt. Ltd. And Anr. vs Mechano And Anr. 2002 (1) SCC 475 is a landmark decision on the issue in hand has univocally held that the Court should consider the question of condonation of delay and the objection of the appellants herein in regard to maintainability of the appeal first, before proceeding with the appeal any further. The Court held thus:

3. When the matters were taken up for hearing today, Mr. V.R. Reddy, learned senior counsel appearing for the appellants, questioned the jurisdiction of the High Court to make the impugned orders at the threshold without deciding the question of delay in filing the appeal as well as the objections as to the maintainability of the appeal which according to him was raised by the appellants herein. According to the learned counsel since the question of maintainability goes to the root of the jurisdiction of the Court to entertain the appeal as well as to pass the impugned orders the same are liable to be set aside.

5. We notice that the impugned order was passed on 29.9.2000 and at the time of passing of the order the High Court had taken note of the fact that it still had not decided the application for condonation of delay, yet it passed the order because of the urgency involved in the matter and because of the fact that it was not in a position to decide the appeal finally, As a matter of fact we notice from the order, that the High Court had decided to dispose of the appeal finally which it could not do so because of the impending vacation of the Court at that time. Hence, it thought it fit to make the impugned interim order without considering the preliminary questions.

6. In view of the peculiar facts of this case without going into the merits of the contentions raised by the counsel for the appellants, we think it is just and fair that we should not at this point of time interfere with the impugned order though the High Court could have avoided passing such orders in proceedings where the maintainability itself was being seriously questioned, be that as it may, we at this stage think it appropriate that the High Court should consider the question of condonation of delay and the objection of the appellants herein in regard to maintainability of the appeal first, before proceeding with the appeal any further, we also think it to be just and proper that any further interim orders if necessary in the appeal before the High Court in regard to the suit property should be made only after deciding the question of delay and maintainability of the appeal and the order already made should be confined to the appointment of a Receiver and filing of his report only, meaning thereby that the impugned order be confined to the appointment of receiver for the purpose of filing his report as directed by the Court and nothing beyond that, at this stage.

It would be trite to refer to S Ziqutza Helath Care Ltd. vs Prem Kumar Shrimali decided by the Madhya Pradesh High Court on 1 February, 2022 wherein the Court observed thus:

13. It is the submission of learned senior counsel appearing for the petitioner that in the case in hand since application for condonation of delay was not decided and matter was heard finally and final order has been passed, therefore, illegality has been caused. Unless the delay is condoned writ appeals could not have been heard on merits. He relied upon the judgments of Hon'ble Apex Court in the matter of State of M.P. and another Vs. Pradeep Kumar and another, (2000) 7 SCC 372, Gagandeep Pratishthan Pvt. Ltd. and others Vs. Mechano and another (2002) 1 SCC 475, Mahabir Singh Vs. Subhash and others, (2008) 1 SCC 358 and V.K. Verma Vs. Dawoodi Bohra Masjid Committee, 2008 (I) MPJR 366.

It would be relevant to refer to Madhya Pradesh High Court judgment in the case of Smt. Manisha Verma vs The State of Madhya Pradesh decided on 20 September, 2017 wherein the Court observed thus:

Similarly, reliance has been placed on the judgment of the Supreme Court in the case of Gagandeep Pratishthan Pvt. Ltd. and others Vs. Mechano and Anr. as reported in (2002) 1 SCC 475 wherein the ratio is that the Court before deciding the petition on merits should consider the question of condonation of delay and the objection of the appellants in regard to maintainability of the appeal first before proceeding with the appeal any further.

The Calcutta High Court in Director Of Technical Education & Ors. vs Puspa Sengupta decided on 19 March, 2009 following Gagandeep Pratishthan (supra) held thus:
The issue was considered by the Apex Court also in the case of Gagandeep Pratishthan Pvt. Ltd. vs. Mechano reported in (2002) 1 SCC 475 wherein the order of the High Court during pendency of the hearing of application under Section 5 of the Limitation Act was challenged on the ground that the High Court should not have passed the interim order when maintainability of the appeal was the main issue as raised by the respondent. On that special facts of the case the Court held that High Court should have avoided to pass any interim order at that stage during pendency of hearing of application under Section 5 of the Limitation Act when maintainability of the appeal was raised which practically goes to the root of the jurisdictional area of the court in question. That judgment of the Apex Court however did not postulate the law contrary to the views expressed by the Calcutta High Court.

In a landmark judgment of the Allahabad High Court in Ram Prakash vs Deputy Director of Consolidation 2022 (2) AWC 1345; 2022(3) ADJ 1(LB)(DB): 2022(155) RD 309, wherein the question referred to the Court was whether the application for condonation of delay under Section 5 of the Limitation Act should be decided first or the same can been decided along with merit of the case. The Court categorically held thus:

20. If any statute provides certain period for filing of appeal, an appeal filed beyond the time limit will certainly be not entertained. If the provisions of 1963 Act are applicable and party is entitled to seek condonation of delay in filing appeal, an application has to be filed specifying the grounds on which delay in filing the appeal is sought to be condoned. It is only after that the application is allowed, the appeal can be entertained and heard on merits. Before that the appeal cannot be taken up and considered on merits.

21. As far as the issue regarding hearing of the application seeking condonation of delay and the appeal simultaneously is concerned, in our view, firstly the application has to be considered. Only thereafter, the appeal can be considered on merits but there is nothing in law which requires hearing of appeal on merits to be postponed mandatorily after acceptance of the application seeking condonation of delay. Both can be taken up on the same day. However, the appeal has to be heard on merits only after the application seeking condonation of delay has been accepted.

22. In view of the aforesaid discussion, we answer the question referred to the Division Bench that an application seeking condonation of delay has to be decided first before the appeal is taken up for hearing on merits. However, it can be on the same day and there is no requirement of adjourning the hearing of appeal on merits after acceptance of the application seeking condonation of delay.

Following the judgment in Ram Prakash (supra) in Ramesh Chandra And Another vs State Of U.P. And 10 Others on 27 March, 2023 decided by the Allahabad High Court observed thus:
The Division Bench of this Court in the case reported in (2022) 155 RD 309 Ram Prakash versus Deputy Director of Consolidation Hardoi and others (Consolidation No.6574 of 2016) decided on 03.02.2022 has held that delay condonation matter shall be decided first before consideration of the appeal on merit as such the order of delay condonation should be passed in proper manner and after that merit part should be considered and disposed of.

It would be apposite to refer to Saty Saty Prakash And 10 Others vs State Of U.P. And 8 Others decided by the Allahabad High Court on 11 August, 2022 wherein the Court observed thus:

In the recent judgment of Division Bench of this Court in the case of Ram Prakash vs. Deputy Director of Consolidation, Hardoi and others, reported in 2022(3) ADJ 1(LB)(DB), it has been expounded that in appeal the Settlement Officer of Consolidation has got no jurisdiction to decide the matter on merits without condoning the delay, which should be decided first before entering into the merits of the appeal. The Deputy Director of Consolidation has miserably failed to consider this aspect of the mater and relegated the parties before the Settlement Officer of Consolidation to get the matter decided on merits, without condoning the delay in filing the appeal.

In the case of Yugal Bihari Das vs Board Of Revenue, U.P., Lko. decided on 19 May, 2023, the Allahabad High Court observed thus:

14. Accordingly, keeping in view the facts and circumstances of issue in question as well as the dictum of Apex Court in re; Sesh Nath Singh (supra) and the judgment of this Court in re; Ram Prakash (supra), I find it appropriate that the liberty is given to the petitioner to file a fresh restoration application before the Survey Naib Tehsildar, Sadar, Faizabad seeking recall of the order dated 18.11.1989 passed by the same authority along with application for condonation of delay explaining the reasons and grounds of delay properly within a period of two weeks from today and the authority concerned shall first consider and dispose of the application for condonation of delay by affording an opportunity of hearing to the parties concerned with expedition, preferably within a period of four weeks. If the competent authority finds that the delay is liable to be condoned, it shall pass an order on application for restoration and recall of the order dated 18.11.1989 and thereafter the matter may be decided on merits, strictly in accordance with law by affording an opportunity of hearing to the parties concerned within a further period of three months.

In Jagroop vs D.D.C.And Others decided on 24 November, 2023, the Allahabad High Court held that deciding delay condonation application as well as appeal on merit simultaneously was contrary to the judgment passed in Ram Prakash (supra). The Court held thus:

8. I have carefully perused the order passed by Appellate Authority and as referred above the approach of Appellate Authority to decide delay condonation application as well as appeal on merit simultaneously was contrary to the judgment passed in Ram Prakash (supra). Therefore, the order of Appellate Authority cannot be justified.

In the case of Smt. Seema Devi vs Sud-Divisional Officer, Unchahar, decided on 16 May, 2023 the Allahabad High Court categorically held that unless and until the application for condonation of delay is decided, no order on merits can be passed. The Court observed thus:

7. Having heard learned counsel for the parties and having perused the material available on record, I am of the considered opinion that if any case/appeal/ revision etc. is filed beyond the statutory period and an application for condonation of delay is filed alongwith such case, unless and until the application for condonation of delay is decided, no order may be passed in the case in view of the decision of this Court in re; Ram Prakash (supra).

The Allahabad High Court in Reeta Gupta vs Tehsildar, Tehsil Sandeela Distt. decided on 19 September, 2023 reiterated the said dictum & held thus:

8. Shri Shashank Singh, learned Standing Counsel has referred the judgment passed by this Division Bench of this Court in the case of Ram Prakash vs. Deputy Director of Consolidation, Hardoi & Others, decided on 03.02.2022 wherein this Court has observed that the authority concerned shall first decide the application for condonation of delay and then he would proceed to decide the case on merits.

The Allahabad High Court again in Ram Narayan And Another vs Civil Judge Junior Division South Court decided on 22 September, 2023 reiterated thus:

It appears from the record that the application under Order 9 Rule 13 in issue, was preferred alongwith an application filed under Section 5 of Limitation Act, as such, the issue of condonation of delay should be decided first in view of law laid down by the Division Bench of this Court in the case of Ram Prakash vs. Deputy Director of Consolidation, Hardoi & Others, decided on 03.02.2022.

In Vivek Gupta vs Civil Judge(S/D), Gonda And 9 Others decided on 25 September, 2023 the Allahabad High Court following Ram Prakash (supra) held thus:
As per the judgment of the Division Bench of this Court passed in the case of Ram Prakash vs. Deputy Director of Consolidation, Hardoi & Others, decided on 03.02.2022, the delay has to be condoned first before entering into the merits of the case.

In Triveni Prasad vs Deputy Director Of Consolidation, Shravasti & others decided on 18 November, 2023 (Neutral Citation No. - 2023:AHC-LKO:75900) the Allahabad High Court categorically held that application for condonation of delay and the appeal both cannot be decided together. The Court held thus:

3. Learned counsel for the petitioner submits that delayed appeal has been filed by the respondent no.4 before opposite party no.2. The petitioner had preferred an application for deciding the limitation first before deciding the appeal on merit but the application has been rejected by means of the impugned order dated 18.03.2021 on the ground that both would be decided simultaneously. The revision preferred by the petitioner has also been dismissed by means of the order dated 19.10.2023 without considering the grounds raised by the petitioner.

Relying on the Division Bench judgment of this Court in the case of Ram Prakash vs. Deputy Director of Consolidation, Hardoi reported in 2022 AIR CC 2297 (All); 2022 (3) ALJ 524, it is submitted that if the delayed appeal has been filed along with application for condonation of delay, the application for condonation of delay should have been disposed of first and only, thereafter, the appeal can be decided and both cannot be decided together.

From the aforesaid, it is no longer Res Integra that the Courts should first decide the application for condonation of delay before hearing/deciding appeal/revision. Moreover, in my considered opinion, both the application for condonation of delay and the appeal should not be decided together. The application for condonation of delay should be decided first as the aggrieved party has a valuable right for redressal against an erroneous order made by the Court while condoning/ refusing to condone delay.

Written By: Inder Chand Jain
Ph no: 8279945021 Email: [email protected]