LALLO GIRI Vs. DEPUTY DIRECTOR OF CONSOLIDTION MIRZAPUR

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) The present petition has been filed by the petitioners for quashing the order dated 12.11.1981 passed by the Deputy Director of Consolidation. . Mlrzapur, by which application for restoration was rejected.

(3.) Admitted facts are that a revision has been filed by the father of the petitioners which remain pending and it was dismissed in default on 19.6.1980. An application for recall was filed by the petitioners on 28.6.1980. The application is not on record. But from a perusal of the judgment, it is apparent that the grounds taken was that the revisionist (father of the petitioners) died in the first week of April, 1980. therefore, it was stated, that the order dismissing the revision In default was against a dead person and it should be recalled. A counter-affidavit was filed to the effect that the revisionist (father of the petitioners) died in February, 1980 and not in April, 1980. It was admitted fact of the parties that the revisionist (father of the petitioners) died somewhat in the year 1980 and the revision was dismissed in default on June 19, 1980. i.e., prior to February, 1980 or April, 1980. So in view of the fact that on the date the revisionist (father of the petitioners) was not alive, therefore, the revision was dismissed against a dead person. Now the question remains as to whether the application filed by the petitioners was maintainable or not. Learned counsel for the petitioners has urged that when the revision was filed by the father of the petitioners and he died prior to June, 1980, the order passed against a dead person is nullity, therefore, the order should be quashed. Learned counsel for the respondent, who has filed counter- affidavit, has vehemently opposed the writ petition and has replied the argument advanced by Sri S. S. Pandey, learned counsel for the petitioners on the ground that when revision was dismissed, it was open to the petitioners to have filed" application for substitution and setting aside the abatement and if no application was filed, the petitioners have no right to challenge the same. His further submission is that the revision has already been abated and no substitution application has been filed within the prescribed period and as such, the revision was not pending. His submission is that the petitioners have not appeared before the revlsional authority, they had not informed the Court regarding the death of their father. therefore, the application was not maintainable and the order passed by the Deputy Director of Consolidation is nullity and it should be quashed exercising power under Article 226 of the Constitution of India. His further submission is that it was the duty of the petitioners to have informed the Court that his father has died and they should have applied for substitution. But with a view to linger on the matter they had adopted delaying tactic without applying for the substitution and abatement applications. In reply to the argument advanced by Sri Faujdar Ral, learned counsel for the respondent, Sri Pandey learned counsel for the petitioner has submitted that in view of the fact that the father of the petitioners died earlier to the date of dismissal of the revision in default the order is apparently against a dead person, therefore, the application filed by the petitioner is/was maintainable and it should have been allowed. Learned counsel for the petitioners has not pointed out any averments in the writ petition in reply to the averments of the counter-affidavit that no substitution application was filed. His submission was that the substitution application was filed.