A.P.SAHI,J. - (1.) HEARD Sri Yanendra Pandey, learned counsel for the petitioner, Sri M.N. Singh, learned counsel for respondent no. 2, learned standing counsel and perused the material on record.
(2.) THIS petition questions the legality of the order passed by the Deputy Director of Consolidation, Varanasi (in short "the DDC"), whereby he has rejected the application moved on behalf of the petitioner for restitution of the judgement of the Consolidation Officer dated 30th July 1994, on the ground that the entire evidence, which was available on record has been scanned by the appellate authority (Settlement Officer, Consolidation) and therefore applying the principles of merger, the DDC has arrived at the conclusion that loss of the judgement of the Consolidation Officer will in no way impede the proceedings. Sri Yanendra Pandey, learned counsel for the petitioner has submitted that the aforesaid approach of the DDC is erroneous in as much as the findings and the reasons recorded in the order of the Consolidation Officer had to be necessarily gone into before any decision could be taken and that since judgement was not available on record, the appellate authority committed grave error by proceeding to decide the appeal and ought to have remanded the matter for a fresh trial. He, further, submits that the DDC has also errred by rejecting the application for restitution and the order impugned causes serious prejudice to the petitioner.
(3.) SRI M.N. Singh, who has put in appearance on behalf of the contesting respondents urged that that the loss of the judgement of the Consolidation Officer was the doing of the petitioner's son Rajendra, who was subjected to proceedings in a criminal case. Sri Singh has, further, submitted that in view of the law laid down in the case of Ram Khelawan v Deputy Director of Consolidation reported in 1987 RD page 350, the question of reconstruction of the judgement does not arise as it is admitted between the parties that neither the judgement nor the copy thereof is available.;