BENIMADHO Vs. DEPUTY DIRECTOR OF CONSOLIDATION DEORIA

JUDGEMENT

(1.) S. N. Srivastava, J. By the impugned order dated 17-5-2001, the Assistant Settlement Officer, Consolidation recalled the order date 21st October, 1991 dismissing the Appeal in default. A revision preferred against the said order was also dismissed.

(2.) THE matter arises out of proceedings under Section 12 of the U. P. Consolidation of Holdings Act. THE Appeal filed by contesting-Opp. Party No. 3 was dismissed for non-prosecution. An application for restoration of appeal alongwith affidavit was filed for setting aside the said order dismissing the appeal in default. This application was supported by an affidavit of Suryadev. In this affidavit contesting-Opp. Party No. 3 has given details relating to cause for non-appearance on the date fixed and has also given the detailed reasons for condonation of delay. THE appellate Court while considering the restoration application has considered the affidavit and was of the opinion that the cause shown for non- appearance is sufficient and allowed the restoration application dated 27-7-1996 by setting aside the order dated 21-10-1991 dismissing the appeal in default at the cost of Rs. 50. THE affidavit in support of the application was believed by the appellate Court. THE appellate Court has considered the rival case of the parties and has also considered the fact that after filing of the appeal learned Counsel for appellant told him that after the record of the trial Court is received in the appeal he will intimate the date fixed. Since no intimation was given he could not appear. Revision was preferred by the present petitioner against the said order recalling the order dismissing the appeal in default which was dismissed on the ground that the delay in filing restoration application was already explained in the affidavit. THE Revisional Court has also held that a client cannot suffer for the fault of the Counsel. THE Revisional Court further held that the affidavit filed by the appellant was rightly believed and parties were rightly given opportunity to contest their claim on merits. It was further held by the Deputy Director of Consolidation that revisionist (petitioner herein) will not suffer any loss in case the appeal is decided on merits.

(3.) THE dispute arises out of the proceedings under the provisions of the U. P. Consolidation of Holdings Act. THE dispute which arises under the consolidation proceedings is a State sponsored dispute and everybody in the consolidation area, after notification, is bound to go to the consolidation authorities for protection of his rights. In such disputes created by the State on notification under Section 4 very technical view in the matter of restoration could not be taken.