S.N. Srivastava, J. - (1.) THE dispute in the instant petition lies in a short compass. Both father and son are embroiled in litigative dispute in which Petitioner who is the son instituted a case in the Court of Consolidation Officer, Gyanpur, Varanasi for recording of his name in the revenue records over the plots comprising in Khatauni Nos. 47, 48, 50, 60 and 62 as co -tenure holder along with his father. The father who is arrayed as Respondent No. 3 in the instant petition, preferred objection. The matter culminated in decision, which leaned in favour of the Petitioner. Distraught by the order, the father filed ostensibly a time -barred application for recall on the ground that the decision was rendered ex parte in the case. The Consolidation Officer, in turn, condoned the delay in filing restoration application and restored the case to be heard on merits. The order passed by the Consolidation Officer aggrieved the Petitioner who preferred revision. However, the Deputy Director of Consolidation declined to interfere with the order and aggrieved by the order, the Petitioner has preferred the instant petition.
(2.) THE Petitioner groused that the Respondent No. 3 is employing dilatory tactics to wear out the Petitioner and that he had full knowledge of the proceeding and had actively participated and still he deployed the ground that the order was ex parte to temporise on expeditious decision. It is transparently clear that both the parties are inclined to fight pitched battle to the last ditch in order to checkmate each other. The learned Counsel for the Petitioner raised the plea that the opposite party No. 3 did not file any appeal within 21 days before the Settlement Officer of Consolidation and subsequently preferred recall application on facetious ground of the order being ex parte. He further submitted that the appeal having not been preferred within 21 days before the Settlement Officer of Consolidation, the order passed by the Consolidation Officer had attained finality and recall/restoration application could not have been entertained and was not maintainable. He also submitted that the order restoring the case to its original number for hearing on merits is not sanctified by any authority of law and cannot be sustained in law.
(3.) IT bears no repudiation that any person aggrieved by an order passed by Consolidation Officer may prefer appeal under Section 11 (1) of the U.P. C. H. Act or he may also file an application to recall the order on ground of it being ex parte order or the same having been passed behind his back, as the case may be. In connection with this, Section 11 (1) of the U.P. C. H. Act may be referred to which envisages that any party to the proceedings under Section 9A of the U.P. Consolidation of Holdings Act aggrieved by an order of the Assistant Consolidation Officer or the Consolidation Officer under that section, may, within 21 days of the date of the order, file an appeal before the Settlement Officer of Consolidation, who shall, after affording opportunity of being heard to the parties concerned, give his decision thereon which, except as otherwise provided by or under this Act, shall be final and not be questioned in any court of law. Section 41 of the U.P. Consolidation of Holdings Act, envisages that unless otherwise expressly provided 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. Section 201 of the U.P. Land Revenue Act provides that if the party against whom judgment has been given, appears either in person or by agent (if a Plaintiff, within 15 days from the date of such order, and if a Defendant, within 15 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. In the above perspective, it transpires that party concerned aggrieved by the order passed by the Consolidation Officer may prefer an appeal and in case he considers that the order was passed in absentia without affording opportunity of being heard to him or that he was not a party to the proceedings, he may file restoration application. In so far as applicability of Indian Limitation Act is concerned, I may refer to Section 53A of the U.P. Consolidation of Holdings Act which makes it clear that Section 5 of the Indian Limitation Act will also apply in case of delay in filing of such application.;