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1966 DIGILAW 499 (ALL)

Dayal v. Deputy Director of Consolidation

1966-11-18

LAKSHMI PRASRD

body1966
ORDER Lakshmi Prasrd, J. - This is a petition under Article 226 of the Constitution praying for the quashing of the revisional order dated 3rd July, 1965 passed by the Deputy Director of Consolidation in a revision filed u/s 48 of the UP Consolidation of Holdings Act. The dispute in this case relates to the tenancy holdings of Maiku on whose death there were objections of rival claimants. Petitioners filed one objection, whereas opposite parties Nos. 8 and 9 filed the other set of objections. The Consolidation Officer upheld the claim of opposite party No. 8 rejecting the claim of others. Accordingly, the Petitioners went in appeal which was dismissed by the Settlement Officer, Consolidation. Aggrieved by that order they went in second appeal which came to be dismissed by a Deputy Director by his order dated 24th April, 1965 on the ground that despite time being allowed to the Petitioners they failed to file copies of the lower court's orders. Aggrieved by this order the Petitioners preferred a revision which was dismissed by the order dated 3rd July, 1965 and a copy of which is annexure 6. Accordingly, the present petition is filed for the quashing of the orders dated 24th April, 1965 and 3rd July, 1965 mainly on the ground that no rule under the UP Consolidation of Holdings Act required copies of the lower court's orders to be filed along with the memo of the second appeal or at any time during the pendency of the second appeal and as such, there was no occasion to dismiss the second appeal for the Petitioners' failure to file copies of the lower court's orders. 2. The petition is opposed by opposite parties Nos. 1 to 7 and 11 represented by the Standing Counsel. Opposite parties Nos. 8 and 9 also put in appearance to oppose the petition but on this date of hearing their counsel has not appeared. I have heard learned Counsel for the Petitioner and the Standing Counsel. 3. The only ground pressed before me is that the view taken by the Dy. Opposite parties Nos. 8 and 9 also put in appearance to oppose the petition but on this date of hearing their counsel has not appeared. I have heard learned Counsel for the Petitioner and the Standing Counsel. 3. The only ground pressed before me is that the view taken by the Dy. Director in his order dated July 3, 1965 that paragraph 161 of the Revenue Court's Manual applied and as such, it was obligatory on the Petitioners to file copies of the lower Court's orders in the second appeal, is erroneous in so far as the aforesaid paragraph 161 of the Revenue Court's Manual had no application whatsoever to the proceedings under the Consolidation of Holdings Act. That such is the legal position is not contested by the Standing Counsel. He concedes that paragraph 161 of the Revenue Court's Manual could not be invoked to justify the order passed by the Dy. Director in second appeal. He, however, contends that since time was given to the Petitioners to file copies of the lower court's orders and they actually promised, as appears from the impugned order, to file those copies within a week, the Deputy Director was justified in dismissing the second appeal because of their failure to comply with that requirement. His contention is that it was within the competence of the Dy. Director to demand those copies if he felt the necessity thereof and once the Deputy Director demanded them, it became the duty of the Petitioners to file them. I do not agree with this contention. If there was no rule of law obliging a party filing a second appeal to file copies of the orders under appeal either along with the memo of appeal or subsequently at any stage during the pendency of the second appeal, then certainly there was no justification for the demand of such copies on the part of the authority hearing the second appeal. In that view of the matter, it is immaterial as to whether or not at one stage the Petitioners agreed to file the required copies within a certain period of time, but subsequently failed to do so. Learned Counsel for the Petitioners points out that the Petitioners failed to file the required copies within a week, as they could not procure copies within that period. This may or may not be a fact. Learned Counsel for the Petitioners points out that the Petitioners failed to file the required copies within a week, as they could not procure copies within that period. This may or may not be a fact. Still, in that view of the matter, as I have indicated above, their failure to file the required copies could not be the basis for the rejection of the second appeal. 4. Before I could sign the order, Sri K.N. Misra, learned Counsel for opposite party No. 8 appeared and wanted to be heard. I have heard him in the presence of Sri Hargur Charan, learned Counsel for the Petitioner. His contention is that on the facts mentioned in paragraph 7 of the counter affidavit filed by opposite party No. 8, a second appeal in which the impugned order has been passed is clearly incompetent and as such, even though it may be that the ground on which the impugned order in second appeal proceeds is not a good ground, it can be justified on the ground mentioned in paragraph 7 of the counter affidavit. In my view, the ground mentioned in paragraph 7 of the counter affidavit is to be taken before the authority competent to hear the second appeal. It is not for this Court to anticipate the decision of that authority on any matter which can legitimately be raised in the course of the disposal of the second appeal. Unless relevant pleas have been raised before a subordinate tribunal and decided, this Court is not required to go into such pleas. As such, without expressing any opinion on the points on which the opposite party No. 8 feels he can defeat (sic) the second appeal, I conclude that the impugned order cannot be maintained. 5. In the circumstances, the petition is allowed and the impugned orders dated 24th April, 1965 and 3rd July, 1965 are quashed with the direction that the second appeal shall be heard and disposed of on merits. It shall be open to opposite party No. 8 to take any pleas which he may be advised in opposition to the second appeal. Parties are directed to bear their own costs.