- (1.) SHITLA Pd. Srivastava, J. Heard learned Counsel for the parties.
(2.) THE present petition has been filed by the petitioners for quashing the order dated 12-11-1981 passed by the Deputy Director of Consolidation, Mirzapur by which application for restoration was rejected. Admitted facts are that a revision has been filed by the father of the petitioners which remain pending and it was dismissed in default on 19-6-1980. An application for recall was filed by the petitioners on 28-6-1980. The application is not on record. But from a perusal of the judgment it is apparent that the grounds taken was that the revisionist (father of the petitioners) died in the first week of April, 1980, therefore, itwas stated that the order dismissing the revision in default was against a dead person and it should be recalled. A counter-affidavit was filed to the effect that the revisionist (father of the petitioners) died in February, 1980 and not in April, 1980. It was admitted fact to the parties that the revisionist (father of the petitioners) died somewhere in the year 1980 and the revision was dismissed in default on June 19, 1980 le. prior to February 1980 or April, 1980. So in view of the fact that on the date the revisionist (father of the petitioners) was not alive, therefore, the revision was dismissed against a dead person. Now the question remains as to whether the application filed by the petitioners was maintainable or not. Learned Counsel for the petitioners has urged that when the revision was filed by the father of the petitioners and he died prior to June 1980 the order passed against a dead person is nullity, therefore, the order should be quashed. Learned Coun sel for the respondent who has filed counter-affidavit has vehemently opposed the writ petition and has replied the argu ment advanced by Sri S. S. Pandey learned Counsel for the petitioners on the ground that when revision was dismissed it was open to the petitioners to have filed ap plication for substitution and setting aside the abatement and if no application was filed the petitioners have no right to chal lenge the same. His further submission is that the revision has already been abated and no substitution application has been filed within the prescribed period and as such the revision was not pending. His submissions that the petitioners have not appeared before the revisional authority they had not informed the Court regarding the death of their father, therefore, the application was not maintainable and the order passed by the Deputy Director of Consolidation is nullity and it should be quashed exercising power under Article 226 of the Constitution of India. His fur ther submission is that it was the duty of the petitioners to have informed the Court that his father has died and they should have applied for substitution. But with a view to linger on the matter they had adopted delaying tactic without applying for the substitution and abatement ap plications. In reply to the argument ad vanced by Sri Faujdar Rai, learned Coun sel for the respondent, Sri Pandey learned Counsel for the petitioner has submitted that in view of the fact that the father of the petitioners died earlier to the date of dis missal of the revision in default the order is apparently against a dead person, there fore, the application filed by the petitioner is maintainable and it should have b. een allowed. Learned Counsel for the petitioners has not pointed out any aver ments in the writ petition in reply to the averments of the counter- affidavit that no substitution application was filed. His sub mission was that the substitution applica tion was filed. I have heard learned Counsel for the parties and perused the judgment of the Deputy Director of Consolidation, Mirzapur. As stated above, the admitted fact is that the revisionist (father of the petitioners) died prior to June, 19, 1980 when the revision was dismissed in default. The revision was dismissed against a dead person and application was filed by the so-called heirs of the dead persons and it has been dismissed. The question is as to whether any such application was main tainable for recall of the order without being any application for substitution of the heirs or not. The Consolidation of Holdings Act is a self exhaustive Act. Sec tion 41 of the Consolidation of Holdings Act says that provisions of Chapter IX and X of the U. P. Land Revenue Act are ap plicable to the proceeding under the con solidation proceeding. Relevant provisions of Section 41 of U. P. Consolida tion of Holdings Act is quoted herein-below:- "41. Application of U. P. Land Revenue Act, 1901.-Unless otherwise expressly provided by or under this Act, the provisions of Chapters IX and X of the U. P. Land Revenue Act, 1901 shall apply to all proceedings including appeal and applications under this Act. "
(3.) THE relevant provisions of Sections 200 and 201 of the Land Record Manual are quoted hereinbelow :- ''200. Hearing in absence of party.-When ever any party to such proceeding neglects to attend on the day specified in the summons or on any day to which the case may have been postponed, the Court may dismiss the case for default or may hear and determine it exparte. " 201. No appeal from orders passed exparte or by default.-No appeal shall lie from an order passed under Section 200 exparte or by default. " Re-hearing on proof of good cause for non-appearance.-Bat in all such cases, if the party against whom judgment has been given appears either in person or by agent (if a plaintiff within fifteen days from the date of such order, and if a defendant, within fifteen days after such order has been communicated to him, or after any process for enforcing the judgment has been executed or at any earlier period), and shows good cause for his non-appearance, and satisfies the officer making the order that there has been a failure of justice, such officer may, upon such terms as to costs or otherwise as he thinks proper revive the case and alter or rescind the order according to the justice of the case. Order not to be altered without summons to adverse party.-Provided that no such order shall be reversed or altered without previously summoning the party in whose favour judgment has been given to appear and be heard in sup port of it. " A bare perusal of Section 200 shows that whenever any party to such proceedings neglects to attend on the day specified in the summons or on any day to which the case may have been postponed, the Court may dismiss the case for default or may hear and determine it exparte.;