B.L. Yadav, J. - (1.) THIS petition Under Article 226 of the Constitution of India is directed against the order dated 15th December, 1978 (Annexure -5 to the petition), passed by the Board of Revenue in exercise of its revisional jurisdiction Under Section 219 of the U.P. Land Revenue Act, 1901, (for short the Act), arising out of the proceedings Under Section 28 of the Act for correction of map. This petition was earlier disposed of by me by order dated 8 -10 -84. But thereafter a restoration application was filed alleging that Sri H.S. Joshi was the counsel for the Petitioners and as he was dead on the relevant date and nobody appeared to press the petition when the petition was listed for final hearing, and even if somebody represented him that cannot be said to be a proper representation and in the result the case of the Petitioners could not be argued effectively and they were deprived of the opportunity of hearing. Accordingly a prayer was made that the order dated 8 -10 -84 may be recalled and the petition may be restored to its original number and heard on merits.
(2.) THE restoration was filed on the allegations that the case was decided against the Petitioners without hearing them. It was accordingly alleged that even though the writ petition was disposed of, the Petitioners could not be heard as they were handicapped and principles of natural justice were violated. These averments have been refuted by the contesting Respondents. But the fact remains that Sri H.S. Joshi, an Advocate of this Court represented the Petitioner and he is no more. The Petitioners allege that their arguments were not heard as he was dead on the date of hearing. Under these circumstances, it is within the judicial discretion of this Court either to allow restoration application or not. The word " discretion " very often comes to be considered. It is better to have the connotation of word " discretion " as explained by Coke in Keighley's Case, (1609) 10 CO Rep 13 9a, it means " a science or understanding to discern between falsity and truth, between right and wrong, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to their wills and private affections.
(3.) THE concept of judicial discretion has been explained by Lord Mansfield " to import a duty to be fair, candid and unprejudicial ; not arbitrary, capricious or biased; much less warped by resentment, or personal dislikes " See Rooke's case, (1598) 5 CO Rep 99 b. Further in other cases the judicial discretion was explained as 'according to the rules of reason and justice, not according to private opinion according to law and not humour". The discretion was to be " not arbitrary, vague and fanciful, but legal and regular ". See Sherp v. Wakefield, (1891) AC 173 ; Ward v. James, (1966) 1 QB 273, 293.;