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1976 DIGILAW 877 (ALL)

Maushila Prasad v. Prem Kumari

1976-12-21

H.N.AGARWAL

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JUDGMENT H.N. Agrawal, Member. - These are two references made by Sri S.M. Hasan, Additional Commissioner, Faizabad Division, Faizabad, recommending that the two revisions filed by Haushila Prasad and Ram Abhilakh against the order dated March 30, 1971 passed by the Judicial Officer (Revenue), Akbarpur, Bikapur, district Faizabad, may be dismissed. 2. I have heard the learned counsels for the parties and have gone through the record. 3. The facts may be briefly stated here. The opposite party, Srimati Prem Kumari had filed two suits, one under Sections 229-B/209, U.P.Z.A. and L.R. Act against Haushila Prasad, Gaon Sabha Kewlapur and the State of U.P. and the other under Section 229-B against Ram Abhilakh, Gaon Sabha Kewlapur and the State of U.P. The two suits were consolidated on September 14, 1970. The suits were dismissed on account of non-appearance of the plaintiff. On the same day, however, the plaintiff's husband moved an application before the trial court to the effect that he had started the on the morning of September 14, 1970 by bus from Pratapgarh but on account of heavy rains he reached the court late and meanwhile the suits had been dismissed in default. He moved an application for restoration on the same day alongwith an affidavit. The defendants filed no objection or counter-affidavit. On March 30, 1971 the trial court restored the suits on payment of Rs. 8/- as costs. The order of restoration has been challenged in revision. 4. The contention of the learned counsel for the revisionists is that there was not sufficient ground for the absence of the plaintiff and that the trial court passed the order of restoration arbitrarily without giving any reason. He has further contended that the revisionists had on October 21, 1970 moved a petition under Paragraph 1285 of the Revenue Manual to enquire whether any restoration application was moved by the plaintiff on September 14, 1970 in the Court and the reply given by the court official was that no such restoration application was moved. The learned counsel for the revisionists has invited reference to paras 1285 and 1290-A of the U.P. Revenue Manual. Para 1285 has no relevance at all. The learned counsel for the revisionists has invited reference to paras 1285 and 1290-A of the U.P. Revenue Manual. Para 1285 has no relevance at all. Para 1290-A, however, reads as follows: "1290-A (i) In pending cases as also in the consigned cases it will be open to the parties or their counsel to obtain certain information by means of written questions and answers in Form III. To this form shall be affixed a court fee label of 25 paise for every two questions or less, asked pertaining to the same case. In no circumstances shall this slip be allowed in substitution of the method of obtaining more detailed information by an inspection of the record or by copies." 5. A perusal of the record shows that the plaintiff had in fact moved an application for restoration of both the suits on September 14, 1970 through her counsel Shri V.N. Srivastava, Advocate. The application had been filed before the Court on the same day and the endorsement signed by the Judicial Officer reads: "Requisition the original file and summon the O. Parties for November 7, 1970." On the other hand, the counsel for the revisionists wants to rely upon the reply furnished to them by some official, whose designation is not known, to the effect that no restoration application had been moved before the trial court on September 14, 1970. The position is that in judicial proceedings no official other than the Presiding Officer has any authority whatsoever. If any inquiry is made under para 1290-A by any party about any judicial proceedings, no official has any authority to give any answer without the approval of the Presiding Officer. Only where a case has been closed and consigned and is not pending in the court, can the answer be furnished by a duly authorised official other than the Presiding Officer. Thus in the present case, any answer furnished to the revisionists by any official other than the Presiding Officer is completely unauthorised and in contravention of the law. Further, in case of a conflict between the written order of the Presiding Officer and the report of the official on the enquiry of the applicants, the written order of the Presiding Officer would be relied upon in preference to the report of the official on the enquiry. Further, in case of a conflict between the written order of the Presiding Officer and the report of the official on the enquiry of the applicants, the written order of the Presiding Officer would be relied upon in preference to the report of the official on the enquiry. In other words, there is not the least reason to doubt that the restoration applications were presented before the Presiding Officer on September 14, 1970 itself. 6. On the question whether the trial court's order allowing the restoration applications is arbitrary or in accordance with law, the learned counsels for both the parties have cited three decisions. The learned counsel for the revisionists has referred to Raja Ram v. Baijnath, 1965 R.D. 246 wherein the following observations have been made: "Before an application for the restoration of the suit which had been dismissed in default is restored or before an application for the restoration of the restoration application is allowed, it is the duty of the court to examine whether the reasons for the absence which resulted in the dismissed of the application, were sufficient or not. Without giving such a finding, the order of the court below would not be legal merely on the ground that the application filed was within the prescribed period of limitation." The learned counsel for the opposite parties has, on the other hand, referred to Hardeo Tewari v. Smt. Jagna, 1975 R.D. 331 and Shyam Singh v. Gopal Singh, 1976 R.D. 216. In Hardeo Tewari v. Smt. Jagna, 1975 R.D. 331, the earlier decision given in Raja Ram v. Baijnath, 1965 R.D. 246 has been discussed. The significance of the word 'merely' in the extract quoted above should not be ignored. Thus, in other words, a restoration application should not be allowed merely on the ground that the application has been filed within the prescribed period of limitation. It is the duty of the court to apply its mind and to satisfy itself whether the reasons for absence were sufficient or not. If the trial court has applied its mind and is satisfied that there were sufficient reasons for restoration, the restoration should be allowed. It is the duty of the court to apply its mind and to satisfy itself whether the reasons for absence were sufficient or not. If the trial court has applied its mind and is satisfied that there were sufficient reasons for restoration, the restoration should be allowed. Where the application for restoration has been made on the same day as the dismissal of default and the court is satisfied that the default was not for any ulterior motives, it is not incumbent upon the Court to give detailed reasons for allowing the restoration application, as has been held by my learned colleague in Hardeo Tewari v. Smt. Jagna, 1975 R.D. 331. The principle that too rigid a view should not be taken in the matter of restoration and the guiding criterion should be to secure the ends of justice has already been stated by me in Shyam Singh v. Goapl Singh, 1976 R.D. 216, and this may be reiterated here. 7. I entirely agree with the recommendation of the learned Additional Commissioner that the trial court has not committed any illegality or error in passing the impugned order and that the revisions have not force. Accordingly, both the revisions are hereby dismissed. 8. This order governs connected References No. 282 and 283 of 1972-73, District Faizabad.