L.Prasad, J. - (1.) This is a petition under Article 226 of the Constitution. The petitioners preferred six objections under Section 9 of the Consolidation of Holdings Act which were dismissed by the Consolidation Officer by a common judgment. They then preferred six appeals which were also dismissed by a common judgment. Thereafter they preferred six revisions. They filed copies of the orders of the Consolidation Officer and the Settlement Officer (Consolidation) along with the memo of revision in one case only and the other five revisions were filed without any such copies. When the matter came up for hearing before the Deputy Director an objection was taken on behalf of the opposite parties that the five revisions, which have filed without the copies of the orders of the Consolidation Officer and Settlement Officer (Consolidation) which should have been filed as required by rule 111 of the U.P. Consolidation of Holdings Rules, were incompetent. It was further urged that since the decision became final in five cases the same operated as res judicata in the sixth case in which the revision was competent. The Deputy Director upheld the aforesaid objection and dismissed five revisions as incompetent and the sixth one on the ground that the decision in the other five cases operated as res judicata in the sixth. It has been found by the Deputy Director that whereas the five revisions were presented on December 13, 1965 applications for copies of the orders of the Settlement Officer (Consolidation) and Consolidation Officer respectively were made on December 18, 1965 and December 19, 1965. It is in these circumstances that the present petition is filed with the prayer that the order of the Deputy Director dated February 23, 1966, six copies of which have been filed along with the petition as annexures 1 to 6, be quashed. It is further prayed that a Writ of mandamus may issue directing the Deputy Director to decide the matter on merits.
(2.) The petition is opposed by opposite party No. 2. I have heard learned counsel for the contesting parties. The first contention of the learned counsel for the petitioner is that the view taken by the Deputy Director that the decision in the five cases, revisions from which were rejected incompetent, operated as res judicata in the sixth revision, is erroneous. In support of the contention learned counsel places reliance on the case of Shanker Sahai v. Bhagwat Sahai, A.I.R. 1946 Oudh 33 . The general proposition laid down in that Full Bench case no doubt appears to support the contention but a scrutiny of the judgment shows that while indicating the exceptions to the general rule propounded by the Full Bench, the Hon'ble Judges deciding the case almost expressed themselves quite contrary to the general proposition laid down earlier. That it is so will appear from the following observations:- " There is another reason which creates an insuperable bar to the hearing of the appeal. This has been indicated in the referring order as follows:- "In the event of this appeal succeeding the decree of this court in favour of Shanker Sahai and his sons will operate to supersede the other decree in spite of the fact that it has now been conclusively determined in case No. 62 that Babu Bhagwat Sahai is the owner of the properties in dispute. Such a suppression of the decree is not possible, unless it be by an appeal from the decision or by a regular suit based on fraud, etc. The success of this appeal will, therefore, create a position for the avoidance of which the rule of res judicata has been conceived. The Collector in case No. 62 would be asked to utilise half the share of the disputed properties for the liquidation of the debts of B. Bhagwat Sahai, whereas in case No. 688 he would be required to utilise the same share for the liquidation of B. Shanker Sahai's debts. This position to say the least would create an impasse.' " It is thus abundantly clear that even according to this Full Bench decision in cases where one appeal is filed from a common judgment disposing of two suits involving common issues and no appeal is filed from the same judgment in the other suit then the appeal filed cannot be proceeded with if the decision given in it is likely to result in inconsistent decrees being passed in the two suits. That is exactly the same as saying in such circumstances one appeal is to be rejected as barred by res judicata. A reference may in this connection be made to another Full Bench case of Bhagwan Sahai v. Daryao Kunwar, 1962 A.L.J. 1153 in paragraph 9 of which it is said on page 1157:- " There is thus abundant authority for the proposition that where there are two or more suits involving common issues, then if the findings on those issues in one suit become final then if the other essentials of Section 11 are present they serve to operate as res judicata in a subsequent suit or appeal." I have thus no doubt that contention raised by the learned counsel is without any substance and the view taken by the Deputy Director cannot be said to be erroneous, much less patently erroneous, so as to call for an interference, under Article 226 of the Constitution.
(3.) The other contention raised by the learned counsel is that since under Section 48 of the U.P. Consolidation of Holdings Act the Deputy Director had suo motu power to revise the decision of subordinate consolidation authorities, he should have exercised the same in the instant case in which the revisions had been admitted and notices had been issued to the opposite parties. In support of this contention he places reliance in the case of Jagan v. Ram Kishore Pandey, 1954 A.L.J. 10 . What is said in this connection on page 12 of the report is as below:- "Generally speaking, it is not necessary for Magistrates, exercising powers under Section 85 of the Act (i.e. the U.P. Panchayat Raj Act as it then stood), to say in every order whether they would like to exercise their powers suo motu or not. But in a case of this kind, where the case has reached the stage of final hearing and the defect in the revision is discovered at that stage, it is certainly desirable that the learned Magistrate should consider whether they would act on their own motion or not in that particular case, and this consideration of theirs should appear from the order passed by them, or by the learned Munsifs as the case may be." In my view these observations cannot be interpreted to lay down a proposition of law that in every case where suo motu powers of revision are conferred by a statute the authority, while rejecting the revision after issue of notice on the ground that it is incompetent, must further state in express terms that it does not consider it fit to exercise its suo motu powers in that behalf. Moreover the language of Section 89 of the U.P. Panchayat Raj Act which corresponds to Section 85 of the Old Act is materially different from that of Section 48 of the U.P. Consolidation of Holdings Act. Then it is also pertinent to notice that a writ of certiorari issues not on the basis of what is desirable but on the basis of what is a patent error of law. So in any view of the matter the petitioner is not entitled to a writ of certiorari on the facts of the present cases. It is well settled that mandamus cannot issue to an authority for the exercise of its discretionary powers. What is in the discretion of an authority remains so and this Court cannot issue a direction to that authority for the exercise of its discretion in a particular manner. So neither there is any case for the issue of a writ of certiorari nor for the issue of a writ of mandamus. Hence the petition must fail.;