MANOJ KUMAR GUPTA,J. - (1.) The instant petition has been filed seeking issuance of a writ of prohibition prohibiting the Settlement Officer Consolidation, Jaunpur from proceeding with the hearing of appeal no.1707/3086 Kanta v. Nikku and others filed before him under Section 11(1) of the U.P. Consolidation of Holdings Act, 1953(1). The objection filed by the petitioner under Section 9- A(2) of the Act for partition of joint holding of khata no.235 was allowed by the Consolidation Officer by an ex parte order dated 30.5.2016. Aggrieved thereby, Kanta, the second respondent filed an appeal under Section 11(1) of the Act before the Settlement Officer Consolidation, Jaunpur. The petitioner contends that the appeal filed by the second respondent under Section 11(1) of the Act is not maintainable in view of provisions of Section 41 of the Act read with Section 201 of the U.P. Land Revenue Act, 1901(2). It is urged that under Section 201, which is attracted to the present proceedings in view of Section 41 of the Act, specifically prohibit an appeal being filed against an ex parte order. The remedy available to such a party is to file a restoration application before the same authority which has passed the ex parte order. (1) The Act. (2) Land Revenue Act.
(2.) Section 41 of the Act provides as under :- 41. Application of U.P. Land Revenue Act, 1901.- Unless otherwise expressly provided by or 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.
(3.) Thus, Section 41 of the Act makes applicable the provisions of Ch. IX and X of the Land Revenue Act to all proceedings including appeal and application under the Act unless a contrary provision is expressly provided by or under the Act. Sections 200 and 201 of the Land Revenue Act contained in Ch IX reads thus :- "200. Hearing in absence of party.- Whenever any party to such proceeding neglects to attend on the day specified in the summons or on any day to which the case may have been postponed, the court may dismiss the case for default or may hear and determine it ex parte. 201. No appeal from orders passed ex parte or by default.- No appeal shall lie from an order passed under Section 200 ex parte or by default. Rehearing on proof of good cause for non-appearance.- But in all such cases, if the party against whom judgment has been given appears either in person or by agent (if a plaintiff, within fifteen days from the date of such order, and if a defendant, within fifteen 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: Order not be altered without summons to adverse party.- Provided that no such order shall be reversed or altered without previously summoning the party in whose favour judgment has been given to appear and be heard in support of it.";