9911796707
TMI Blog2016 (9) TMI 1669X X X X Extracts X X X X X X X X Extracts X X X X ..... and 14.9.2016 has been fixed for hearing and evidence. 2. While assailing the aforesaid order, learned counsel for the petitioner has made following submissions:-- (i) The order impugned is patently illegal for the reason that the recall application 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation under Section 5 of Limitation Act was filed, the restoration application could not be decided on merit unless the delay was condoned and the application filed under Section 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. 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 : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed period of limitation irrespective of the fact that limitation has not been set up as a defence. If a suit is ex facie barred by the law of limitation, a court has no choice but to dismiss the same even if the defendant intentionally has not raised the plea of limitation." 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be passed on merit. (iii) The delay cannot be condoned without having the version of otherside and for that, other side is required to be noticed and heard. 8. Here in this case, both the things are missing as neither the application filed under Section 5 was decided nor any finding has been 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of the U.P. State Universities Act, 1973 or of the Statutes of the University do not confer any power of review on the Vice-Chancellor. In the circumstances, it must be held that the Vice-Chancellor acted wholly without jurisdiction in reviewing, his/her earlier order. The review order of the 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 : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs. Reference may be made to the decisions of the Apex Court in Managing Director, Army Welfare Housing Organization v. Sumangal Services Pvt. Ltd. (2004) 9 SCC 619 : (AIR 2004 SC 1344), Sarup Singh and Anr. v. Union of India and Anr. (2011) 11 SCC 198 : (AIR 2011 SC 514) and a Division Bench decision of this Court in the case of Committee of Management Shri. Jawahar Inter College and Anr. v. State of UP. and Ors. in Special Appeal No. 164 of 2012 decided on 25.1.2012 in which it has been held that the order without jurisdiction is a nullity. In the result, the writ petition succeeds and is allowed. The impugned order dated 9.9.2016 passed by the Additional Collector (Finance and Revenue) Hapur in Case No. D2016117300171 (State v. Sunil Kum ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
