RAM PRASAD Vs. D D C

JUDGEMENT

(1.) THE present writ Petition relates to land of Khata No. 102 of Village Vijaigaon, district Faizabad, which was recorded in the basic year Khatauni in the name of Ram Prasad. An objection was jointly filed by opposite parties Nos. 2 to 5 claiming to be co -tenure holders in the aforesaid holding along with the Petitioner with the allegation that it is ancestral land and they are Bhumidhars in possession. The Consolidation Officer by his order dated 19 -4 -1974 rejected the objection and maintained the basic year entry in the name of the Petitioner. Against this order opposite party No. 5, Mata Din preferred an appeal impleading opposite parties Nos. 2 to 4 as Respondents. The Settlement Officer, Consolidation allowed the appeal by order dated 10 -10 -1974 and found that the opposite parties No. 2 to 5 are co -tenure holders along with the Petitioner in the holding in dispute. Against this order, Petitioner preferred revision which was allowed by the Joint Director of Consolidation by order 29 -4 -1977. He held Petitioner and opposite party No. 5 alone to be co -tenure holders. Petitioner's revision in respect of another holding, Khata Nos. 234 and 249, which are not in dispute in the present writ Petition, was dismissed. The claim of opposite parties No. 2 to 4 in respect of Khata No. 102 in question was rejected merely on the ground that they had not filed any appeal nor they had joined as Appellants in the appeal filed by Mata Din, opposite party No. 5, against the order passed by the Consolidation Officer. The Petitioner was accordingly given 2/3rd. share and 1/3rd share was given to Mata Din in the said disputed holding, Khata No. 102. Opposite parties No. 2 to 4 filed review application against the said order before the Deputy Director of Consolidation, but the same was rejected being not maintainable by order dated 19 -9 -1978. It appears that after dismissal of review application, the opposite parties No. 2 to 4 on 30 -1 -1978 filed an appeal before the Settlement Officer, Consolidation against order dated 19 -4 -1974 passed by the Consolidation Officer. A prayer for condonation of delay was also made. The Petitioner contested the appeal and opposed the application for condonation of delay. The Settlement Officer, Consolidation by order dated 17 -3 -1980 refused to condone the delay and dismissed the appeal being time barred. The opposite parties No. 2 to 4, thereupon filed revision which was allowed by the Deputy Director of Consolidation by order dated 15 -12 -1980. He condoned the delay and remanded the case to the Settlement Officer, Consolidation for disposing of the appeal on merits. The Petitioner has challenged this order in the present writ Petition.

(2.) DURING pendency of this writ Petition, opposite party No. 5 Mata Din died on 27th March, 1982. An application for substitution along with an application for condonation of delay and setting aside abatement was moved by the Petitioner on 19 -11 -1982. The only ground on which condonation of delay was sought is that the Petitioner was under the impression that since Mata Din is not a contesting party and so no substitution will be required to be made as a matter of fact the Petitioner did not know that substitution will have to be applied within 90 days, the time permitted by law.

(3.) LEARNED Counsel for the Petitioner firstly contended that the provisions of Order 22 Rule 4 will not apply to the proceedings under Article 226 of the Constitution in view of Explanation appended to Section 141, Code of Civil Procedure, which was inserted by Amendment Act of 1976 (Act No. 104 of 1976) with effect from 1 -2 -1977. In support of his contention, he referred to a decision in Ram Kala v. The Asstt. Director Consolidation of Holdings, Punjab : AIR 1977 P&H. 87 (Full Bench) wherein it is held that Order 22 of the Code of Civil Procedure does not apply to writ proceedings. Learned Counsel also referred to an order passed by Hon'ble Single Judge of this Court in Civil Misc. Application No. 1884 (W) of 1976 in Writ Petition No. 1253 of 1972, Dinesh Prasad v. Deputy Director of Consolidation, Pratapgarh, wherein, while allowing the substitution application, it was observed: