- (1.) D. K. Seth, J. In this case, the petitioner's appeal was dismissed in default by order dated 23rd March, 1988 passed by the Divisional Commis sioner, Jhansi in Appeal No. 3/3 of 1986-87. Against the said order, after obtaining the certified copy on 2nd May, 1988, he moved a writ petition being writ petition No. 11261 of 1988 on which an interim order was granted on 25th August, 1988 restraining the respondents from executing any lease or passing any order of allotment with regard to the land in dispute. Ultimately the said writ petition No. 11261 of 1988 was disposed of by order dated 21st September, 1994 whereby the order dated 23rd March, 1988 was set aside and the appellate authority was directed to hear the appeal afresh after affording opportunity to the petitioners (Annexure '5' to the writ petition ). Thereafter, the petitioner had produced the copy of the said order and prayed for hearing of his appeal. The appellate authority by order dated 29th September, 1995 had rejected the prayer of the petitioners by a reasoned order passed in Appeal No. 3/3/8 of 1994-96. It is against this order the present writ petition has been moved.
(2.) A perusal of the said order shows that the learned Advocate for the petitioners had made an application on 2nd April, 1988 and in support of the said application, an affidavit was filed by Ayodhya Prasad, an agent, affirmed on 22nd April, 1988. The order, dated 23rd March, 1988 was recalled by order dated 19th June, 1988. Thereafter the appeal was dismissed ex parte on 14th of February, 1992. Therefore, there was no appeal pending to be decided pursuant to the order dated 21st September, 1994 passed in Writ Petition No. 11261 of 1988. The learned counsel for the petitioners submits that the petitioners had been pursuing their remedy in the said writ petition No. 11261 of 1988. They had never instructed their learned Advocate to file any application for restoration. Neither the peti tioners hid ever met the learned counsel. Even after the order dated 25th August, 1988 was passed, the same was communicated through some other lawyer. It is common knowledge that had the petitioner!, been informed that the order dated 23rd March, 1988 was recalled in that event, they would not have pursued the writ petition an4 would not have allowed the matter to be dismissed ex parte. It appears that there must have been some communication gap due to which such an unfortunate situation has been brought into being. Even then the respondents were made parties to writ petition No. 11261 of 1988 and were represented by the learned Standing Counsel. It was never pointed out during the course of the hearing of the said case neither by filing counter-affidavit or by submitting from the Bar that the impugned order had already been recalled and proceedings had terminated ex parte. The respondents also cannot claim advantage of their stand. Had they disclosed the same, in that event, it would not have been necessary for this Court to pass order in the said writ petition. Despite such situation which was not disclosed by the respondents, the above order dated 21st September, 1994 having been passed by this Court, the same cannot be ignored so long the same exists. The implication of the said order cannot be avoided by showing mere technicalities. The real remedy open to the respondents was, as soon it was communicated to them, to apply for modification of the said order in view of the existing situation. They cannot take the orders passed by this Court lightly. The respondents being Government authorities, it was incumbent on them to approach this Court and apply for modification of this order so passed by bringing into its information the facts which they could have brought in by way of counter-affidavit or by instructions through the learned Standing Counsel. The respondents were equally negligent. In such circumstances, it would be desirable that the orders passed by this Court should have been given a meaningful and effective respect. Since the respondents have not taken appropriate steps, it was no more open to them so long the order subsists to speak otherwise. A minimum courtesy is expected from the authorities who are bound by the said order. The respondents having been made parties to the proceedings having not taken the said defence, they are precluded from raising the same and are estopped from challenging the order passed against them which they could have avoided by filing counter-affidavit or through instructions. Therefore, it is not open to them without applying even for modification to frustrate the same.
(3.) THEREFORE, I am of the view that the order dated 29th September, 1995, as it appears on the face of it, in the background mentioned above, cannot be sustained and is hereby quashed. The order dated 14th February, 1992 by which the concerned appeal was decided ex parte is also hereby quashed. The appellate authority is hereby directed to proceed with the appeal being No. 3/3 of 1986-87 in the light of the observations made in the order dated 21st September, 1994 passed in writ petition No. 11261 of 1988. This writ petition is thus allowed. There will be no order as to costs. Petition allowed. .;