S.R.Misra - (1.) THE petitioner is aggrieved by order dated 12/7/1977, dismissing his second appeal in default, and the order dated 16/12/1977, dismissing restoration application by the Board of Revenue.
(2.) SMT. Genda Rani, respondent no. 3 filed a suit for partition under section 176 of thy U. P. Zamindari Abolition and Land Reforms Act claiming half share. Petitioner contested the same. Suit was dismissed by order dated 19-9-1970 of the trial court. Respondent no. 3 filed an appeal, which was allowed. Petitioner went in second appeal, which was admitted and 12-7-77 was the next date fixed, but on that date, counsel for the petitioner could not reach and the case was dismissed in default. Restoration application was filed within 30 days from the date of passing of order in default. The same was also dismissed on two grounds, namely, the restoration application was filed after one month and it was not supported by an affidavit. It was also held that the counsel for the petitioner could not give My reason as to why the restoration application could not be filed earlier, it is this order of Board of Revenue which has been assailed in the present writ petition. Having heard learned couased for the petitioner and the respondents, and, gone through the order of the Board of Revenue, I find that the order dismissing the case in default was passed on 12-7-1977. Petitioner filed a restoration application on 9-8-1977, which was well within 30 days from the date of issuance of the order dismissing the case in default. Thus, the observation of the Board of Revenue that the application for restoration was filed beyond the period of one month, is erroneous on the face of record. So far as non-filing of affidavit is concerned, in view of admitted fact that the appeal was dismissed in default, the counsel had filed application. Board of Revenue should have given an opportunity to the petitioner to file an affidavit. Apparently there is mo mistake on the part of the petitioner but it was a mistake on the part of the counsel for the petitioner, who could not reach court at the time when the appeal was taken. On account of failure of the counsel to reach in time before court, if the appeal was dismissed in default, that may be justified if absence is deliberate. But when the restoration application was filed well within time, its dismissal cannot be justified as it takes away the right of the petitioner to fight his case on merits, for all times to come. In such matter, too technical view should not be taken and attempt must be made to give opportunity to the parties to put forth their case on merits. Such technical view can be justified only if it is proved that a party, with a malafide intention, is indulging in lingering on the proceedings. It is not open for an Authority to reject the restoration application merely on the ground that restoration was not filed on the very next day of order of dismissal of the appeal in default. This view can never be upheld.
(3.) THUS, the writ petition succeeds and is allowed. The judgment and order dated 16-12-1977 of the Board of Revenue is quashed and the case is sent back to the Board of Revenue for deciding the restoration application afresh in accordance with law and in the light of observation made above. If the Board of Revenue still feels that affidavit is necessary, it shall afford opportunity to the petitioner for filing the same, and, only thereafter, it shall pass an order. Parties shall bear their own costs. Petition allowed.;