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TMI Blog2016 (9) TMI 1669X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 of Limitation Act was allowed or the finding was recorded to the effect that there was no need of filing Section 5 application and the application was within time - Here in this case, admittedly, the recall application was barred by time and it was accompanied with an application for condonation of delay, therefore, unless the delay was condoned, the recall application could not have been decided. In the case of SNEH GUPTA VERSUS DEVI SARUP OTHERS [ 2009 (2) TMI 744 - SUPREME COURT ], the Apex Court has held that in absence of any application for condonation of delay, the court has no jurisdiction in terms of S. 3, Limitation Act, 1963 to entertain the application filed for setting aside of decree after expiry of period of limitation. Po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n itself was not maintainable as the counsel for the applicant seeking recall was heard, therefore the order was not ex parte order. (ii) Along with the recall application, an application under Section 5 of Limitation Act, 1908 was filed on 29.7.2016 but without disposing of the application filed under Section 5 of the Limitation Act, the application seeking recall of the order dated 23.5.2016 has been allowed illegally. (iii) Since no ground was taken in the application that on 23.5.2016, the counsel for the applicant has not argued the case, therefore the recall could not be sought and in absence of such assertion, recall application could not be allowed. 3. The facts of this case in brief are that against the petitioner, a proceeding und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here was no need of filing Section 5 application and the application was within time. 6. Here in this case, admittedly, the recall application was barred by time and it was accompanied with an application for condonation of delay, therefore, unless the delay was condoned, the recall application could not have been decided. 7. The view taken by me finds support from the decision of the Apex Court in Noharlal Verma v. District Co-operative Central Bank Ltd., Jagdalpur, 2008 14 SCC 445 : (AIR 2009 SC 664, paras 27, 28 29), where the Apex Court has held as under:-- 1. 32. Now, limitation goes to the root of the matter. If a suit, appeal or application is barred by limitation, a court or an adjudicating authority has no jurisdiction, power or au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the case of Sneh Gupta v. Devi Sarup and others, (2009) 6 SCC 194, in paragraph 70, the Apex Court has held that in absence of any application for condonation of delay, the court has no jurisdiction in terms of S. 3, Limitation Act, 1963 to entertain the application filed for setting aside of decree after expiry of period of limitation. In 2001 (9) SCC 717 : (2001 AIR SCW 2351), Ragho Singh v. Mohan Singh, the Apex Court has held as under:-- (6) We have heard learned counsel for the parties. Since it is not disputed that the appeal filed before the Additional Collector was beyond time by 10 days and an application under Section 5 of the Limitation Act was not filed for condonation of delay, there was no jurisdiction in the Additional C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded that the application was within time. 9. Learned counsel for the petitioner further contended that in the restoration application, it was not the case of the respondents that the State was not heard on 23.5.2016 and unless it was the case that the order impugned dated 23.5.2016 is ex parte one, recall application was not maintainable. Here too, I find substance in the submissions of learned counsel for the petitioners that once the order was passed after hearing both the sides, the recall application was not maintainable and the order could not be treated as an ex parte order. Otherwise also, the Additional Collector (Finance and Revenue) has no power to review his own order as there is no provision of review under the Indian Stamp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Vice-Chancellor was, therefore, a nullity. 12. In the case of G. Srinivas v. Govt, of A.P. and Ors., reported in AIR 2005 SC 4455, Hon'ble Apex Court has observed: An order passed by mistake and ignorance of the relevant facts indisputably can be reviewed, if inter alia it is found that a fraud was practiced or there was wilful suppression on the part of the appellant. 13. The Full Bench of this Court reported in 1997 (31) ALR 680 : (1997 All U 2363) (Smt. Shvraji and Ors. v. Dy. Director of Consolidation, Allahabad and Ors.) has held: 36. Coming to the provisions of the U.P. Consolidation of Holdings Act, it is our considered view that the consolidation authorities, particularly the Deputy Director of Consolidation while deciding a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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