- (1.) THE two questions canvassed on behalf of the petitioners is the legality of setting aside of an order, although ex parte, by the Deputy Director Consolidation, on grounds, which, on the finding did not make out sufficient cause for the absence of the opposite parties on the date of hearing. And infirmity in the order, thereafter, passed on merits without adverting to the material evidence on record consisting of oral evidence etc. on adverse possession, the plea on which the claim by the opposite party was founded before the Consolidation Officer.
(2.) TO substantiate the first argument reliance was placed on S. 201 of U. P. Land Revenue Act which by Legislative incorporation applies to proceedings under U. P. Consolidation of Holding Act. Its applicability to proceedings in revision under S. 48 of the Act is no more in doubt (see 1969 All WR (HC) 592, Ram Charan v. Deputy Director Consolidation), S. 201 of the U. P. Land Revenue Act reads as under: " S. 201 - No appeal shall lie from an order passed under S. 200 ex parte or by default. 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: 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" . Good cause for non-appearance coupled with failure of justice confer jurisdiction on the authority to recall an order passed in absence of the party on an application filed within 15 days of the communication of the order. But in absence of good cause even failure of justice by itself does not furnish any ground for setting aside of the order. The word " and" is significant. In the context in which it has been used it cannot be read as ' or' . The Deputy Director Consolidation while disposing of application for setting aside ex parte order recorded following findings :- " The restoration applications are within time for having been filed on the 15th day of the order. The allegations set forth in the applications do not apparently appear to be correct for their absence on 16- 2-72 but since the order is an ex parte one and these applications are in time I do not get involved in attaching any importance in the allegations . . . . . . . . . . set aside the order dated 16-2-72 . . . . . . . I allow these applications." The order is in the teeth of provisions contained in S. 201 of the U. P. Land Revenue Act. Even otherwise the basic concept of setting aside an ex parte order is associated with absence of the defaulting party on the date of hearing either due to lack of knowledge or failure to appear for sufficient cause. In this case the Deputy Director Consolidation recorded the finding, on absence, against the opposite party and restored the case only on the ground that the opposite party was not heard. In doing so he exceeded his jurisdiction as he appeared to have set aside the order on compassionate ground which is alien to a court of law.
(3.) THE order restoring the revision was thus against the law, yet, it set aside an order, passed, without hearing the opposite party. But as it is conducive and more amenable to sense of justice that the right of parties should be decided after hearing I refrain from quashing the order. It is well settled that notwithstanding the right of getting an illegal or without jurisdiction order quashed the remedy is discretionary. (AIR 1966 SC 828, Venkateshwara Rao v. Govt. of Andhra Pradesh and 1957 All LJ 193 : (AIR 1957 All 276) Pooran Singh v. Addl Commr., Agra. The vulnerability of the order passed thereafter on merits has been successfully exposed on two counts - the faulty approach on ' Sajhi' and misunderstanding of the scope of S. 210 of U. P. Z. A. Act. The opposite parties were objectors before the Consolidation Officer, against the basic year entry of Bhumidhar in favour of petitioner and based their claim solely on adverse possession. On the other hand petitioners apart from basing their title on ancestral tenancy and possession have tried to knock out the entire case of the opposite parties by producing Sajhinama executed by them at different point of time and thus claiming the nature of possession to be permissive at its inception.;