YOGENDRA RAM TRIPATHI Vs. DEPUTY DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) Through this writ petition, the petitioners have prayed for issuing a writ of certiorari quashing the order dated 1.11.2012 passed by the Deputy Director of Consolidation (in short D.D.C.) in Restoration Application No. 64/2012-13 in Revision No. 1807 by which the Deputy Director of Consolidation has rejected the petitioners' application as barred by time as day to day delay was not explained in the application for condonation of delay. While assailing this order, Sri Ram Prakash Rai, leaned counsel appearing for the petitioners contends that the Deputy Director of Consolidation has erred in rejecting the petitioners' restoration application on the ground that day to day delay was not explained. In his submissions, there was plausible explanation given in the restoration application but that has been misinterpreted by the Deputy Director of Consolidation, In his further submissions, that while considering the application for condonation of delay, in view of settled legal position a sympathetic view ought to have been taken by the learned D.D.C.

(2.) Sri Bheem Singh, learned counsel, who appears for respondents no. 1 to 3, considering the legal position in this regard has very fairly submitted that the writ petition may be finally disposed of on its own merit, without calling for counter affidavit. Therefore, with the consent of learned counsel for the parties, the writ petition is taken up for final disposal.

(3.) The facts giving rise to this case are that it appears against an order dated 27.8.1980 passed in Appeal no. 249 under Section 11 (1) of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act), revision was filed, by the father of the petitioners which was numbered as Revision no. 1807, before the Deputy Director of Consolidation. The aforesaid revision was dismissed for want of prosecution on 10.9.1984. For recall of the aforesaid order, a restoration application was filed on 29th September, 1984 which was allowed on 1st February, 1985 and thereafter number of dates were fixed but no final decision was rendered and ultimately the revision was again dismissed for want of prosecution on 12.9.1995. From the perusal of the impugned judgment passed by the Deputy Director of Consolidation and the papers available on the records of the writ petition, it transpires that no application was filed for recall of the order dated 12.9.1995 prior to the year 2006. However, it appears an application was filed on 11.9.1995 for recall of the order dated 18.8.1995 with the explanation that the counsel for the petitioner as well as the court's preshkar have told that the case was dismissed on 18.8.1995 and the petitioners without ascertaining from the record as to whether case was dismissed for default on 18.8.1995 believing on the version of them, have filed a restoration application. It again appears that without disposal of the restoration application for recall of the order dated 18.8.1995, the revision was dismissed in default on 8.4.2003. It is stated that in the year 2003, the petitioner's sister had fallen ill and she expressed her last will to get her treatment at Varanasi, the petitioner no. 1, for the treatment of her sister, has gone to Varanasi, ultimately, his sister died and it appears in the meantime, the case was dismissed. When the petitioner came to know about the dismissal order, he has engaged another counsel and on 30.5.2006 and another restoration application was filed for recall of the order dated 12.9.1995 as well as the order dated 8.4.2003. The Deputy Director of Consolidation has observed in his judgment that order dated 18.8.1995 is not available on the record and there was no restoration application prior to 30.5.2006 for recall of the order dated 12.9.1995. I am surprised to note that when the revision itself was dismissed for want of prosecution on 12.9.1995 and there was no order for dismissing the revision in default on 18.8.1995 how the revision was again dismissed for want of prosecution on 8.4.2003. Both the order dated 12.9.1995 and 8.4.2003 recite that the revision is dismissed in default. What has been noted by the Deputy Director of Consolidation is that the petitioner has not explained the delay properly and filed restoration application for recall of the order dated 12.9.1995 after a long delay. He took the view that delay has not satisfactorily been explained.