Whether suit is instituted when application of condonation of delay is filed?

In the present case, the civil suit having been presented beyond 
the prescribed period of limitation, an application under under Section 5 of the 
Limitation Act was filed praying for condonation of delay in filing the suit which 

came to be rejected and consequentially, the civil suit is also dismissed.  
Sections   143(4)   and   143(5)   of   the   Maharashtra   Land   Revenue 
Code read as follows :­
it set aside or modified. 
“143(4)   Any person who is aggrieved by a decision of the  
Tahsildar under this section may, within a period of one year  
from the date of such decision, institute a civil suit to have  
143(5) Where   a   civil   suit   has   been  instituted  under  
sub­section   (4)   against   the   Tahsildar's   decision,   such  
decision shall not be subject to appeal or revision.”      
      (Emphasis supplied)
Thus, the decision of the Tahsildar can be challenged by filing the 
civil   suit   and   if   the   civil   suit   is   “instituted”   under   Section   143(5)   of   the 
Maharashtra Land Revenue Code challenging the Tahsildar's decision, then the 
decision of the Tahsildar cannot be challenged in appeal or revision under the 
provisions of the Maharashtra Land Revenue Code.  The word “institute” as per 
Black's Law Dictionary means “to begin or start; commence.”     Thus, the bar 
under Section 143(5) of the Maharashtra Land Revenue Code to file an appeal 
or revision under the provisions of the Maharashtra Land Revenue Code would 
apply   only   if   the   civil   suit   has   been   “instituted”   under   Section   143(4)   of   the 

Maharashtra Land Revenue Code which means that if the civil suit is filed.   In 
the present case, the civil suit having been filed after the period of limitation, the 
application praying for condonation of delay was filed.   It is established practice 
that until the delay is condoned, the civil suit is not registered and the civil Court 
cannot look into the civil suit.   In these facts, it cannot be said that the civil suit 
was “instituted” by the respondent no.5 and his wife as per Section 143(5) of the 
Maharashtra Land Revenue Code.  Consequentially, the bar created by Section 
143(4) of the Maharashtra Land Revenue Code for filing of the appeal or revision 
to challenge the decision of the Tahsildar will not apply.  In these facts, it cannot 
be said that the civil suit was instituted as per Section 143(4) of the Maharashtra 
Land Revenue Code, 1966.
Shri Mirza, the learned advocate for the petitioners submits that the 
application   filed   by  the   respondent  no.5   and   his  wife  under  Section  5   of  the 
Limitation Act is a part and parcel of the civil suit and therefore, it has to be 
treated that the civil suit was instituted as contemplated by Section 143(4) of the 
Maharashtra Land Revenue Code.   The submission as made on behalf of the 

petitioners   is  misconceived   and   contrary   to   the   established   principles   of  law. 
The application praying for condonation of delay can never be part and parcel of 
the   civil   suit   and   the   civil   suit   is  not   registered   until   and   unless   the   delay   is 
condoned.   It is the settled law that Court gets its jurisdiction to entertain and 
decide the proceedings before it, only after the delay is condoned and till that 
time the Court does not get the jurisdiction to entertain the proceedings. 
In view of the above, I find no reason to interfere with the order 
passed   by   the   learned   Additional   Collector   remanding   the   matter   to   the 
Sub­Divisional Officer for fresh enquiry in the matter.

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.2977/2012

Shri Nago Hari Zangte, V State of Maharashtra, 
  
CORAM  :  Z.A. HAQ, J.
DATE  :     17.11.2014
Citation;2015(3) MHLJ 381


3. The petitioners have challenged the order passed by the learned 

2. 
Additional Collector by which the appeal filed by the respondents 5, 6 and 7 is 
allowed and the matter is remitted to the Sub­Divisional Officer for fresh enquiry 
and decision.     The petitioners have also challenged the order passed by the 
learned Additional Commissioner rejecting the revision filed by the petitioners 
and upholding the order passed by the learned Additional Collector.  
4.
The   petitioners   had   filed   an   application   before   the   Tahsildar 
claiming   right   of   way   for   their   fields   through   southern   side   of   field   Gat 
Nos.141/1,   141/2,   137   and   138   owned   by   the   respondents   6   and     7.       The 

Tahsildar by the order dated 7th September, 2007  allowed the application filed by 
the   petitioners   and   granted   right   of   way   as   sought   by  the   petitioners.       The 
petitioners relied on the award which according to them has been passed by the 
Loknyayalaya on 27th January, 2008 recording that the parties have agreed that 
the   Tahsildar,   Ralegaon   would   examine   the   factual   position   on   the   spot   and 

would recommend the way and the parties would accept that.  According to the 
petitioners after the  award  passed by the Loknyayalaya, the  respondent no.5 
and his wife filed the civil suit under Section 143(4) of the Maharashtra Land 
Revenue   Code,   1966   challenging   the   order   passed   by   the   Tahsildar   on   30 th 
June, 2009 granting right of way to the petitioners.    As there was delay in filing 
the civil suit, an application praying for condonation of delay came to be filed.   
The   learned   trial   Judge   rejected   the   application   filed   by   the 
respondent   no.5   praying   for   condonation   of   delay   in   filing   the   civil   suit   and 
consequentially, the civil suit is also dismissed.   
Simultaneously, the respondents 5, 6 and 7 filed appeal before the 
Sub­Divisional   Officer   challenging   the   abovementioned   order   on   30th  June, 
2009.  The Sub­Divisional Officer dismissed the appeal.   The respondents 5, 6 

and 7 filed appeal before the Additional Collector which came to be allowed by 
the order dated 29th December, 2010 as stated above.  The revision filed by the 
petitioners challenging the above mentioned order is dismissed.   The petitioners 
Shri Mirza, the learned advocate for the petitioners has submitted 

5.
have therefore, filed this writ petition.
that   the   respondents   5,   6   and   7   having   settled   the   matter   before   the 
Loknyayalaya and pursuant to the settlement the award having been passed, it 
is not open for the respondents 5, 6 and 7 to go beyond the settlement and 
challenge  the order  passed by the  Tahsildar granting  way  as claimed  by  the 
petitioners.    In support of his submission, the learned advocate has relied on 
the judgment given by the Hon'ble Supreme Court in the case of State of Punjab  
& Anr. V/s. Jalour Singh & Ors.  reported in [2008] 2 SCC 660.    In addition, it is 
submitted   that   the   respondent   no.5   having   filed   the   civil   suit   under   Section 
143(4) of the Maharashtra Land Revenue Code challenging the order passed by 
the Tahsildar, the appeal under Section 247 of the Maharashtra Land Revenue 
Code challenging the same order is not maintainable.   Reliance is placed on the 

judgment given by this Court in the case of  Jaglal s/o Premlal Jayaswal and  
another   V/s.   Waman   s/o   Premlal   Jayaswal   and   another  reported   in  2008(4) 
Mh.L.J. 467  and in case of  Smt. Shantabai W/o Bhagwan Patil and & Others  
The copy of the award dated 27th January, 2008 does not show the 

6.
V/s. Bhagwan S/o Revanand Patil & Others  reported in [2011] 1 Mh.L.J.481. 
names of the signatories on the terms of compromise.   Shri Mirza, the learned 
advocate for the petitioners have produced the xerox copy of the award which 
shows   two   signatures.     The   learned   advocate   for   the   petitioners   is   not   in   a 
position to point out as to who agreed to the terms of compromise and who has 
signed   the   terms   of   compromise   pursuant   to   which   the   award   came   to   be 
passed.  In any case even if the contentions of the petitioners are to be accepted 
that the parties cannot be permitted to resile from compromise arrived at before 
the Loknyayalaya, the terms of compromise does not show that the respondents 
5, 6 and 7 have accepted the terms of compromise.  Therefore, the respondents 
5,   6   and   7   cannot   be   deprived   of   the   opportunity   of   prosecuting   the   legal 

remedies   only   on   the   ground   that   a   compromise   was   arrived   at   before   the 
Loknyayalaya  when  there  is nothing  on  the  record  to  show  that  all  the  three 
respondents (respondents 5, 6 and 7) have accepted the terms of compromise 
and have signed on the terms of compromise before the Members of the panel 
of   the   Loknyayalaya.       In   these   facts,   the   judgment   given   by   the   Hon'ble 

Supreme Court in the case of Punjab  & Anr. V/s. Jalour Singh & Ors. (cited  
supra) does not assist the petitioners. 
The submission made on behalf of the petitioners that the orders 
7.
passed   by  the   Tahsildar   granting   right   of   way  to   the   petitioners   having   been 
challenged in the civil suit and the civil suit having been dismissed, the appeal 
filed   by   the   respondents   5,   6   and   7   challenging   the   same   order   was   not 
maintainable, is misdirected.   The civil suit was filed by the respondent no.5 and 
his wife.  The respondents 6 and 7 have not filed any civil suit challenging the 
order passed by the Tahsildar.   Moreover, the civil suit filed by the respondent 
no.5 and his wife is not decided on the merits but it is dismissed as barred by 
limitation.   In the cases of Jaglal s/o Premlal Jayaswal and another V/s. Waman  

s/o Premlal Jayaswal and another  and  Smt. Shantabai W/o Bhagwan Patil and  
& Others V/s. Bhagwan S/o Revanand Patil & Others (cited supra), the appeals 
under the provisions of Section 247 of the Maharashtra Land Revenue Code 
were held as not maintainable in view of the filing of the civil suit under Section 
143(4) of the Maharashtra Land Revenue Code as the civil suits were decided 
8.
on merits. 
The reliance placed by the learned advocate for the petitioners on 
the   provisions   of   Section   143(5)   of   the   Maharashtra   Land   Revenue   Code   to 
contend that in view of the filing of the civil suit by the respondent no.5 and his 
wife challenging the order passed by the Tahsildar, the appeal under Section 247 
of   the   Maharashtra   Land   Revenue  Code   to   challenge   the   same   order   is   not 
maintainable, cannot be accepted.  
9.
In the present case, the civil suit having been presented beyond 
the prescribed period of limitation, an application under under Section 5 of the 
Limitation Act was filed praying for condonation of delay in filing the suit which 

came to be rejected and consequentially, the civil suit is also dismissed.  
Sections   143(4)   and   143(5)   of   the   Maharashtra   Land   Revenue 
Code read as follows :­
it set aside or modified. 
“143(4)   Any person who is aggrieved by a decision of the  
Tahsildar under this section may, within a period of one year  
from the date of such decision, institute a civil suit to have  
143(5) Where   a   civil   suit   has   been  instituted  under  
sub­section   (4)   against   the   Tahsildar's   decision,   such  
decision shall not be subject to appeal or revision.”      
      (Emphasis supplied)
Thus, the decision of the Tahsildar can be challenged by filing the 
civil   suit   and   if   the   civil   suit   is   “instituted”   under   Section   143(5)   of   the 
Maharashtra Land Revenue Code challenging the Tahsildar's decision, then the 
decision of the Tahsildar cannot be challenged in appeal or revision under the 
provisions of the Maharashtra Land Revenue Code.  The word “institute” as per 
Black's Law Dictionary means “to begin or start; commence.”     Thus, the bar 
under Section 143(5) of the Maharashtra Land Revenue Code to file an appeal 
or revision under the provisions of the Maharashtra Land Revenue Code would 
apply   only   if   the   civil   suit   has   been   “instituted”   under   Section   143(4)   of   the 

Maharashtra Land Revenue Code which means that if the civil suit is filed.   In 
the present case, the civil suit having been filed after the period of limitation, the 
application praying for condonation of delay was filed.   It is established practice 
that until the delay is condoned, the civil suit is not registered and the civil Court 
cannot look into the civil suit.   In these facts, it cannot be said that the civil suit 
was “instituted” by the respondent no.5 and his wife as per Section 143(5) of the 
Maharashtra Land Revenue Code.  Consequentially, the bar created by Section 
143(4) of the Maharashtra Land Revenue Code for filing of the appeal or revision 
to challenge the decision of the Tahsildar will not apply.  In these facts, it cannot 
be said that the civil suit was instituted as per Section 143(4) of the Maharashtra 
Land Revenue Code, 1966. 
10.
Shri Mirza, the learned advocate for the petitioners submits that the 
application   filed   by  the   respondent  no.5   and   his  wife  under  Section  5   of  the 
Limitation Act is a part and parcel of the civil suit and therefore, it has to be 
treated that the civil suit was instituted as contemplated by Section 143(4) of the 
Maharashtra Land Revenue Code.   The submission as made on behalf of the 

petitioners   is  misconceived   and   contrary   to   the   established   principles   of  law. 
The application praying for condonation of delay can never be part and parcel of 
the   civil   suit   and   the   civil   suit   is  not   registered   until   and   unless   the   delay   is 
condoned.   It is the settled law that Court gets its jurisdiction to entertain and 
decide the proceedings before it, only after the delay is condoned and till that 
11.
time the Court does not get the jurisdiction to entertain the proceedings. 
In view of the above, I find no reason to interfere with the order 
passed   by   the   learned   Additional   Collector   remanding   the   matter   to   the 
Sub­Divisional Officer for fresh enquiry in the matter.    The petitioners have not 
been   able   to   point   out   any   material   irregularity   or   illegality   in   the   impugned 
orders     which   necessitates   the   interference   with   the   order   of   remand   in   the 
extraordinary   jurisdiction.     The   writ   petition   is,   therefore,   dismissed.     In   the 
circumstances, the parties to bear their own costs.   
                            

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