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2020 DIGILAW 496 (ALL)

Chhavi Nath v. D. D. C.

2020-02-13

ANJANI KUMAR MISHRA

body2020
JUDGMENT : Anjani Kumar Mishra, J. 1. Heard learned Counsel for the petitioner and Counsel appearing for the respondents 2 to 5. 2. The instant writ petition arises out of an objection under section 9-A(2) of the U.P. Consolidation of Holdings Act filed by the petitioner regarding khata No. 162/1, plot Nos. 238 area 0-0-10 and 239 area 0-0-9 i.e. two plots having a total area of 16 dhur. These two plots, in the basic year were recorded in the name of Shivrani widow of Pheku 3. The objection was also regarding khata No. 162/2, plot No. 157 area 1-5-5, 238-M area and 0-4-5, 242 area 0-12-5, namely three plots having a total area of 2-1-10 dhur, which were recorded in the name of Keshav Nath, Hansraj and Nandlal sons of Bihari. 4. It appears that by an order of the Assistant Consolidation Officer, on the death of Shivrani widow of Pheku, Keshav Nath, Nandlal and Hansraj sons of Bihari were mutated. 5. The objection was filed by the petitioner and Arjun, his brother, both sons of Chhakku, alleging that the land of khata No. 162/1 and 162/2 was earlier part of khata No. 123 in the name of Pheku. The objectors, the nephews of Pheku are in possession over the land recorded in his name and that the name of the respondents was wrongly recorded, thereon. 6. The objection was belated and the delay in filing the same was condoned. The Consolidation Officer, thereafter allowed the objection deciding along with it a separate objection regarding plot No. 123. He directed that the basic year entry of khata Nos. 162/2, 162/1 and 123 be expunged and the objectors' namely Arjun and Chhavi Nath sons of Chhakku, be recorded thereon. 7. It is contended that against the order, the respondents preferred a restoration application as also an appeal. 8. The Settlement Officer Consolidation vide order dated 6.2.1997 dismissed the appeal as barred by time. The respondents went up in revision, which has been allowed vide order dated 21.4.1999 and the matter remanded to the Consolidation Officer. Hence this writ petition seeking a writ of certiorari for quashing the revisional order of remand. 9. The contention of learned Counsel for the petitioner is that the respondents had resorted to two parallel proceedings. Admittedly, they had filed a restoration application and during its pendency, they also filed an appeal. This was not permissible. Hence this writ petition seeking a writ of certiorari for quashing the revisional order of remand. 9. The contention of learned Counsel for the petitioner is that the respondents had resorted to two parallel proceedings. Admittedly, they had filed a restoration application and during its pendency, they also filed an appeal. This was not permissible. The Deputy Director of Consolidation has, therefore, committed manifest illegality in allowing the revision and remanding the matter back to the Consolidation Officer. The matter, if at all, should have been remanded to the Appellate Authority and there was no justification for setting aside the order passed by the Consolidation Officer allowing the petitioner's objection, especially when an application for recall of the same was pending and had not been disposed of finally. 10. Counsel appearing for the respondents has submitted that the instant writ petition is not a fit case for interference because the order impugned is primarily an order of remand. He has referred to two categorical findings, which have been returned in the impugned revisional order. The first finding alluded to, a finding returned after perusal of the original record, is that in the proceedings before the Consolidation Officer on 17.11.1993, the next date fixed was 14.12.1997, on which date the matter was adjourned to 27.1.1993. Despite the aforesaid date fixed, the Consolidation Officer decided the objection on 25.1.1993, manifestly, without hearing the revisionist and without affording them opportunity to adduce evidence. The order dated 25.1.1993 was therefore, manifestly ex-parte. It was also observed that the revisionist was liable to be afforded an opportunity of hearing before the Consolidation Officer decided the objection filed by the petitioner. 11. The second finding alluded to is that the Settlement Officer Consolidation wrongly dismissed the appeal as barred by time. The order impugned in appeal was dated 25.1.1993. An application for a certified copy of the order was made on 3.2.1993. The copy was ready and was delivered on 5.3.1993. In the aforenoted circumstances, the appeal was wrongly dismissed as barred by time. The import being that the period spent in obtaining the certified copy of the order challenged in appeal was necessarily required to be excluded, while calculating the limitation. 12. On the strength of the aforesaid two findings and since the order impugned is an order of remand, it has been contended that the writ petition merits no interference. 13. The import being that the period spent in obtaining the certified copy of the order challenged in appeal was necessarily required to be excluded, while calculating the limitation. 12. On the strength of the aforesaid two findings and since the order impugned is an order of remand, it has been contended that the writ petition merits no interference. 13. In rejoinder, learned Counsel for the petitioner has relied upon paragraph 12 of the writ petition, which reads as follows: "12. That learned Deputy Director of Consolidation has not consider that the judgment of the Consolidation Officer dated 25.1.1993 in which it was given on merit by Consolidation Officer and in which he has specifically mentioned that the opposite-party No. 2 inspite of several opportunity did not appear nor filed any documentary evidence, and learned Deputy Director of Consolidation set aside that judgment which is illegal and deserve to be set aside." 14. It has also been vehemently submitted that 27.1.1993 was never a date fixed in the case and that the matter before the Consolidation Officer was fixed on 25.1.1993, on which date, it was decided finally. Counsel has also referred to the order of the Consolidation Officer to state that the respondents would appear in Court but they never filed any evidence. The Consolidation Officer has also stated that the respondents would come to the Court and thereafter, go back. Under the circumstances, the Consolidation Officer rightly allowed the objection. 15. I have considered the submissions made by learned Counsel for the parties and perused the record. 16. It is true that a restoration application as also an appeal were filed by the respondents. The appeal has been dismissed as barred by time. It appears that no order has been passed on the restoration application, even till date. 17. The principles enshrined in Order IX, Rule 13 C.P.C., although the said provision is not strictly applicable to the proceedings under the U.P. Consolidation of Holdings Act, provide that a person has two remedies against an ex-parte order. He can either prefer a restoration or he can challenge the order on its merits. The proviso to Order IX, Rule 13 C.P.C. provides that once an appeal has been decided on merits, a restoration application does not lie. However, there is no embargo on filing both the applications simultaneously. 18. He can either prefer a restoration or he can challenge the order on its merits. The proviso to Order IX, Rule 13 C.P.C. provides that once an appeal has been decided on merits, a restoration application does not lie. However, there is no embargo on filing both the applications simultaneously. 18. Under the circumstances, and since the bar is to the filing of a restoration application or to it's being entertained, once an appeal against the allegedly ex-parte order has been decided on merits, the same does not have any impact in the case at hand. The restoration application filed by the respondents has still not been decided and is stated to be pending even today. 19. However, since the appeal was dismissed as barred by time, which finding has been disapproved by the Deputy Director of Consolidation, upon examination of the original appellate record, whereupon it has been found that the appeal was within time, the order passed by the Settlement Officer Consolidation in any case could not have been sustained and has rightly been set aside. It has also been set aside rightly, because I do not find any illegality in the reasoning given by the Deputy Director of Consolidation for finding the appeal to be within time. 20. Although, it has been contended that the Consolidation Officer decided the case on 25.1.1993 rightly as the same was the date fixed before him, this argument cannot be accepted in view of the categorical finding returned by the Deputy Director of Consolidation upon a perusal of the original record. It would be relevant to note that no material has been brought on record by the petitioner, which would, even prima facie, show that the finding returned by the Deputy Director of Consolidation, after examining the original record, is in any way, either perverse or vitiated. 21. In the absence of any such material having been filed by the petitioner, the finding of the Deputy Director of Consolidation cannot be interfered with. Once this finding is accepted, the order passed by the Consolidation Officer is rendered an ex parte order and, therefore, there was complete justification for setting it aside and remanding the matter back to the Consolidation Officer for passing a fresh order after affording revisionist, opposite party in the writ petition, opportunity to adduce evidence, as also adequate opportunity of hearing. 22. 22. Under the circumstances, in my considered opinion, substantial justice has been done between the parties by the order impugned. Moreover, since the order impugned is an order of remand, in pursuance whereof, the petitioner still has every opportunity of having his say before the Consolidation Officer on the merits of his claim, the same is an additional ground why this writ petition calls for no interference. 23. In view of the foregoing discussion and since no good ground for interference has been made out, the writ petition fails and is dismissed. 24. It is however, provided that the Consolidation Officer must endeavour to decide the matter remanded to him, expeditiously, preferably within six months from the date a certified copy of this order is filed before him, and without granting any unnecessary adjournment to any of the parties.