PALTOO Vs. DEPUTY DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) NASEEMUDDIN, J. These writ peti tions have been filed under Article 226 of the Constitution of India for quashing order dated 22-4-97 passed in Revision Nos. 178 and 179 by Assistant Commissioner of Consolidation, Gonda whereby the revisions were dismissed in default of the revisionist/writ petitioners; and order dated 17- 8-99 passed in Misc. Case Ns. 178 and 179 by the Deputy Director of Consolidation wherein the restoration ap plications for restoration of the revisions were dismissed.

(2.) COUNSEL for the parties are heard.

(3.) LEARNED counsel for the opposite parties argued that by (sic) disposal of the consolidation matter remained in abeyance for the last about 18 years. The second instance was with respect to the non- moving of the application for sub stitution of the legal representatives (al ready on record) for three years and seven months. The learned counsel also pointed out the contents of the application and affidavit. Application dated 11-5-99, and the verification thereof, which was moved in support of the application dated 22-4-97 on 11 -5-99. The affidavit was not sworn on 22-4-97 or even thereafter upto 11-5-99 in respect of the grounds mentioned in the application Annexure No. II. On 22-4-97 the application for restoration is alleged to have been moved. The revisions were dis missed in default on that day. The ground was that one of the petitioners, namely, Sri Prasad, could not appear in the Court be cause of illness. The second ground was that his counsel had gone to the Revenue Record Room, Gonda for some work in respect of some file after informing the Reader of the Court and that in the mean time the two revisions were dismissed. The first ground of illness of Sri Prasad was taken up but it was not disclosed in the application as to how it (illness) was known to the person who moved the ap plication. Sri D. K. Srivastava did not dis close in the application the source of infor mation about the illness of Sri Prasad who was allegedly the Pairokar of the case. Secondly, the fact that the counsel had gone to the Record Room could be deposed only by the counsel because Sri Prasad was not present on that dale and had at all no personal knowledge of this fact. The counsel had given no affidavit in t his respect. After two years and seventeen days of the moving of this application and dismissal of the revisions. The affidavit was allegedly sworn by Sri Prasad petitioner who made depositions on the basis of his own personal knowledge as per his verification of the affidavit. The deposi tion in para 3 could not have been in the personal knowledge of Sri Prasad as he was admittedly absent from that Court on that day of dismissal. That the counsel had informed the Reader could have also been deposed by the counsel himself. So firstly, the fact that Sri Prasad was ill appears to have been wrongly (sic) mentioned in the application and secondly the fact that the counsel had informed the Reader and had gone to the Record Room could not be proved by Sri Prasad as he had no personal knowledge of this fact. These grounds in the application as well as in the deposition would perhaps not have been scrutinised closely because the Courts fake liberal view while dealing with restoration mat ters but since in this case there was a che quered history and it appeared that in the Court below these restorations were being moved after getting the cases deliberately dismissed in default, therefore, since there is absence of bona fide and an attempt to hammer the cause of justice, this matter has to be closed scrutinised. The Court below has dealt with these applications in a very detailed order and the only inference and impression out the reading is that the Court below is of the firm opinion that it is not at all a routine thing that the cases are dismissed in default and arc being got res tored. The learned counsel for the petitioners says that nowhere in the order Annexure No. 3 dated 17-8-99 the Deputy Director of Consolidation has mentioned that the grounds taken up in the applica tion and affidavit were false. Although this language is not used by the Court below but a reading of the order clearly shows that the Court below meant it very much that the petitioners were not at all inter ested in the disposal of the case for obvious reasons and were using dilatory tactics.