AYODHYA DAS Vs. PRESCRIBED AUTHORITY

JUDGEMENT

(1.) D. K. Seth, J. In this case, the petitioner's appeal was dismissed in default by order dated 23rd March, 1988 passed by the Divisional Commis sioner, Jhansi in Appeal No. 3/3 of 1986-87. Against the said order, after obtaining the certified copy on 2nd May, 1988, he moved a writ petition being writ petition No. 11261 of 1988 on which an interim order was granted on 25th August, 1988 restraining the respondents from executing any lease or passing any order of allotment with regard to the land in dispute. Ultimately the said writ petition No. 11261 of 1988 was disposed of by order dated 21st September, 1994 whereby the order dated 23rd March, 1988 was set aside and the appellate authority was directed to hear the appeal afresh after affording opportunity to the petitioners (Annexure '5' to the writ petition ). Thereafter, the petitioner had produced the copy of the said order and prayed for hearing of his appeal. The appellate authority by order dated 29th September, 1995 had rejected the prayer of the petitioners by a reasoned order passed in Appeal No. 3/3/8 of 1994-96. It is against this order the present writ petition has been moved.

(2.) A perusal of the said order shows that the learned Advocate for the petitioners had made an application on 2nd April, 1988 and in support of the said application, an affidavit was filed by Ayodhya Prasad, an agent, affirmed on 22nd April, 1988. The order, dated 23rd March, 1988 was recalled by order dated 19th June, 1988. Thereafter the appeal was dismissed ex parte on 14th of February, 1992. Therefore, there was no appeal pending to be decided pursuant to the order dated 21st September, 1994 passed in Writ Petition No. 11261 of 1988. The learned counsel for the petitioners submits that the petitioners had been pursuing their remedy in the said writ petition No. 11261 of 1988. They had never instructed their learned Advocate to file any application for restoration. Neither the peti tioners hid ever met the learned counsel. Even after the order dated 25th August, 1988 was passed, the same was communicated through some other lawyer.

(3.) THEREFORE, I am of the view that the order dated 29th September, 1995, as it appears on the face of it, in the background mentioned above, cannot be sustained and is hereby quashed. The order dated 14th February, 1992 by which the concerned appeal was decided ex parte is also hereby quashed. The appellate authority is hereby directed to proceed with the appeal being No. 3/3 of 1986-87 in the light of the observations made in the order dated 21st September, 1994 passed in writ petition No. 11261 of 1988.