- (1.) S. N. Srivastava, J. By the impugned order dated 17-5-2001, the Assistant Settlement Officer, Consolidation recalled the order date 21st October, 1991 dismissing the Appeal in default. A revision preferred against the said order was also dismissed.
(2.) THE matter arises out of proceedings under Section 12 of the U. P. Consolidation of Holdings Act. THE Appeal filed by contesting-Opp. Party No. 3 was dismissed for non-prosecution. An application for restoration of appeal alongwith affidavit was filed for setting aside the said order dismissing the appeal in default. This application was supported by an affidavit of Suryadev. In this affidavit contesting-Opp. Party No. 3 has given details relating to cause for non-appearance on the date fixed and has also given the detailed reasons for condonation of delay. THE appellate Court while considering the restoration application has considered the affidavit and was of the opinion that the cause shown for non- appearance is sufficient and allowed the restoration application dated 27-7-1996 by setting aside the order dated 21-10-1991 dismissing the appeal in default at the cost of Rs. 50. THE affidavit in support of the application was believed by the appellate Court. THE appellate Court has considered the rival case of the parties and has also considered the fact that after filing of the appeal learned Counsel for appellant told him that after the record of the trial Court is received in the appeal he will intimate the date fixed. Since no intimation was given he could not appear. Revision was preferred by the present petitioner against the said order recalling the order dismissing the appeal in default which was dismissed on the ground that the delay in filing restoration application was already explained in the affidavit. THE Revisional Court has also held that a client cannot suffer for the fault of the Counsel. THE Revisional Court further held that the affidavit filed by the appellant was rightly believed and parties were rightly given opportunity to contest their claim on merits. It was further held by the Deputy Director of Consolidation that revisionist (petitioner herein) will not suffer any loss in case the appeal is decided on merits. Heard learned Counsel for petitioner and learned Standing Counsel and considered the arguments of learned Counsel for the petitioner as well as learned Standing Counsel. The appellate Court while restoring the suit has considered and believed the case stated in the affidavits of the parties. Revisional Court has also considered the entire case and has found sufficient cause for restoration of the case.
(3.) THE dispute arises out of the proceedings under the provisions of the U. P. Consolidation of Holdings Act. THE dispute which arises under the consolidation proceedings is a State sponsored dispute and everybody in the consolidation area, after notification, is bound to go to the consolidation authorities for protection of his rights. In such disputes created by the State on notification under Section 4 very technical view in the matter of restoration could not be taken. The Apex Court recently in a judgment reported in 2002 (1) JCLR 386 (SC) : (2002) 3 SCC 156, Devinder Pal Singh Sehgal and another v. Partap Steel Rolling Mills Pvt. Ltd. and others, considered this matter and laid down law in the matter of restoration. The Apex Court has held that "it appears that in the application for restoration, all relevant facts have been stated not only to show that the plaintiffs had sufficient cause for non-appearance on 24-8-1988 but also to show sufficient cause for condonation of delay in filing the restoration application. " The Apex Court further held that "therefore, merely because in the order of the trial Court, specifically, there is no reference to petition for condonation of delay, it cannot be said that it did not consider the same. From a bare perusal of the order, it would appear that the grounds stated in the restoration application for non- appearance on 24-8-1988 as well as delay in filing the restoration application having found favour with the trial Court, the suit has been restored, therefore, it cannot be said that the order of restoration has been passed without condoning the delay in filing the restoration application. ";