JUDGMENT Janardan Sahai, J.
1. Mahadeo Singh and Kalika Singh were brothers. The petitioners Bhanu Pratap Singh, Sarvesh Kumar Singh and Nirvesh Kumar Singh in Writ Petition No. 31102 of 2000 are descendants of Mahadeo Singh. The contesting respondent Nos. 2 and 3 Shiv Charan Singh and Moti Lal Singh are sons of Kalika Singh. The respondent No. 4 Smt. Saraswati Devi is the widow of Mahadeo Singh. The case of Bhanu Pratap Singh and others is that chak No. 64 was partitioned for 1/3rd share each of Mahadeo Singh, Kalika Singh and Smt. Saraswati Devi by order of the Consolidation Officer dated 25.5.1970 in Case No. 6698 but the said order was not given effect to and it was only on a reference prepared on the application of Mahadeo Singh that an order dated 8.1.1973 in Case No. 1639 was passed by the Consolidation Officer, Allahabad, giving effect to the order dated 25.5.1970, aforesaid. Shiv Charan Singh and Moti Lal Singh filed revision against the order dated 8.1.1973 after about 19 years against the order dated 8.1.1973 in Case No. 1629. The revision was filed with an application under Section 5 of the Limitation Act for condoning the delay. In the affidavit of Shiv Charan Singh it is stated that the order dated 8.1.1973 is farzi. The Deputy Director of Consolidation by his order dated 7.12.1999 allowed the revision of Shiv Charan Singh on the ground that the order dated 8.1.1973 was passed under Section 42A of U. P. Consolidation of Holdings Act whereunder only a clerical mistake could have been corrected whereas by that order only 2 plots out of 8 plots were partitioned for which the Consolidation Officer had not jurisdiction. During the pendency of the revision Mahadeo Singh died. The petitioner's case is that the order of Deputy Director of Consolidation dated 7.12.1999 was an ex parte one as no orders for substituting the heirs of Mahadeo Singh were passed nor notice was given to them. An application was filed by the petitioners for setting aside the order dated 7.12.1999 and praying that orders be passed on the substitution application which had been filed by Shiv Charan Singh and others. The Deputy Director of Consolidation by order dated 21.6.2000 rejected this application on the ground that he had no power of review, The orders dated 7.12.1999 and 21.6.2000 of the Deputy Director of Consolidation are challenged in Writ Petition No. 31102 of 2000 filed by Bhanu Pratap Singh and others. The order dated 7,12.1999 has been challenged by Srnt. Saraswati Devi in Writ Petition No. 31100 of 2000. As common questions of fact and law are involved, both the petitions are being disposed of by this order.
2. I have heard Shri Sankatha Rai, learned counsel for the petitioners Bhanu Pratap Singh and others in Writ Petition No. 31102 of 2000 and for Smt. Saraswati Devi in Writ Petition No. 31100 of 2000 and Shri Swaraj Prakash, learned counsel for contesting respondents Shiv Charan Singh and Moti Lal Singh in both the writ petitions.
3. Three submissions have been made by Shri Sankatha Rai, learned counsel for petitioners. One that no orders were passed on the application under Section 5 of the Limitation Act and the Deputy Director of Consolidation had no jurisdiction to decide the revision on merits without condoning the delay. Second, that although an application was filed by Shiv Charan Singh and Moti Lal Singh for substituting Bhanu Pratap Singh and others in place of deceased Mahadeo Singh, no orders were passed on that application nor Bhanu Pratap Singh and others had any notice and the order in the revision was ex parte and against a dead person, Mahadeo Singh. Third, that the application for setting aside the order of Deputy Director of Consolidation was really a restoration application and not an application in review and was, therefore, maintainable.
4. I shall take up the third contention first. The copy of the application for setting aside the order dated 7.12.1999 has been filed as Annexure-8 to the writ petition. It is stated in that application that the substitution application filed by Shiv Charan was not disposed of and the revision was decided on 7.12.1999 without affording opportunity of hearing and that the heirs of the deceased were not aware of the proceedings and the order of Deputy Director of Consolidation is a nullity. In paragraph No. 5 of the application, it is stated that the petitioners were not heard at all and the order is ex parte and that the substitution application was not disposed of. The prayer in the application is to set aside the order dated 7.12.1999 and to pass orders on the substitution application. The contents of the application disclose that it is really an application for restoration on the ground that the petitioners in the petition of Bhanu Pratap Singh and others had no knowledge and were not heard. The view taken by the Deputy Director of Consolidation by his impugned order dated 21.6.2000 that the application was not maintainable being an application for review is erroneous in law and this order of the Deputy Director of Consolidation is liable to be set aside on this ground itself.
5. In the counter-affidavit of Shiv Charan Singh and Moti Lal Singh filed in the Writ Petition No. 31102 of 2000 of Bhanu Pratap Singh and others, it is stated in paragraph 13 that on 8.7.1997 the Deputy Director of Consolidation ordered for summoning the record and the revision was decided after the records had come. Relying upon this averments, it is submitted by Shri Swaraj Prakash, learned counsel for respondents Shiv Charan Singh and Moti Lal Singh that the Deputy Director of Consolidation had exercised suo motu power in the revision and failure to pass any order on the application for condoning the delay was not material. He placed reliance upon the Full Bench decision in Rama Kant Singh v. Deputy Director of Consolidation, U. P., Lucknow Camp at Varanasi and Ors.. 1974 ALJ 834.
6. The Full Bench held that after the record has been called for by the Deputy Director of Consolidation under Section 48 of U. P. Consolidation of Holdings Act, the Deputy Director of Consolidation should examine the record and decide whether it was a fit case for exercise of revisional jurisdiction suo motu and such opinion would also have to be formed even where an application in revision is defective having been made beyond the prescribed period of limitation or for non-impleadment of necessary parties. If the Deputy Director of Consolidation finds that the case requires further hearing, he shall give notice to all necessary parties whether they had been impleaded in the revision or not and after giving them reasonable opportunity of hearing, pass such orders as he thinks fit. It was also laid down that if the application in revision is not defective and is maintainable, the exercise of revisional Jurisdiction shall be at the instance of the parties and not suo motu.
7. The question, therefore, for decision in this case is whether the power in the revision was suo motu exercised by the Deputy Director of Consolidation and if so, whether notice was given to Bhanu Pratap Singh and others and whether they were heard. In the counter-affidavit of Shiv Charan Singh to which reference has been made above, it is stated in paragraph No. 14 that Mahadeo Singh, father of Bhanu Pratap Singh had opposed the revision application and after his death, a substitution application was filed and the legal heirs appeared in Court. It was denied that legal heirs of Mahadeo were not served. Reference is made to Annexure-9 of the writ petition, which is a copy of the order sheet. The order sheet dated 20.11.1999 indicates that the parties were permitted to file written arguments if they so desired by 3.12.1999. In this paragraph, it is further stated that two written arguments were filed-one on behalf of legal heirs of Mahadeo Singh described as 'Likhit Kathan Dwara Uttarwadigan Nimnalikhit Hai', copy of which has been enclosed as Annexure-2 to the counter-affidavit and another written argument which is described as 'Likhit Kathan Uttarwadigan No. 2'. However, it is stated that written arguments filed on behalf of petitioners Bhanu Pratap Singh and others were deliberately not signed by them. In paragraph 15, it is stated that after considering the written arguments of the parties, the Deputy Director of Consolidation decided the revision.
8. The averments in paragraph No. 14 of the counter-affidavit have been replied to in paragraph No. 11 of the rejoinder-affidavit. Therein it is stated that Mahadeo Singh died on 27.7.1998 and that respondents Shiv Charan Singh and Moti Lal, filed a substitution application on 8.7.1999 for substituting Bhanu Pratap Singh, Sarvesh Kumar Singh and Nirvesh Kumar Singh as his heirs. A copy of the substitution application is on the record as Annexure-8 to the writ petition. About the written arguments. it is stated that they were filed by Shri R. S. Yadav, advocate on behalf of Smt. Saraswati Devi and that after the death of Mahadeo Singh on 27.7.1998, the vakalatnama executed by him in favour of Shri R. S. Yadav ceased to be effective and no fresh vakalatnama was filed by the petitioners-heirs of Mahadeo Singh in favour of R. S. Yadav and the written arguments filed by R. S. Yadav were on behalf of Smt. Saraswati Devi.
9. There is no material on the record to show that any notice was issued to Bhanu Pratap Singh and others or that they were substituted or that they had engaged any counsel. The facts further reveal that apart from the written arguments, which are said to have been filed on behalf of opposite parties, there is nothing to indicate that the petitioners-heirs of Mahadeo Singh were parties or were heard or represented in the revision. The expression 'Likhit Kathan Dwara Uttarwadigan' cannot be attributed with any degree of certainty to the petitioners who were not impleaded as opposite parties in the revision at all. No order for substituting them is shown to have been passed nor there is any material to show that notice was sent to the petitioners or that they had engaged Shri R. S. Yadav as their counsel there being no vakalatnama on their behalf. From the order sheet, it does not appear that any notice was issued on the substitution application or service was found to have been effected. Merely on the basis of two sets of written arguments to which reference has been made in the counter-affidavit and the reference in the order of Deputy Director of Consolidation that the 'parties' were heard-an expression which could well be a reference to Shiv Charan Singh and others and Smt. Saraswati, it cannot be inferred that Bhanu Pratap Singh and others were represented or were heard. In the circumstances, the order passed in the revision would have to be set side irrespective of the fact whether the Deputy Director of Consolidation has exercised suo motu power or not for it has been laid down in the Full Bench decision of Kama Kant Singh (supra) that if the record is examined, the Deputy Director of Consolidation even if he intends to exercise suo motu power, must before interfering, issue notice to the affected parties. Further in the absence of any order on the substitution application, the Revision would be deemed to have been decided against a dead person and for this reason too, the order dated 7.12.1999 cannot be sustained. The decision in Rahmani Khatoon v. Harkoo Gope, AIR 1981 SC 1450, in which the distinction between the concept of abatement under Section 4 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act and that in the C.P.C. has been noticed relied upon by the respondents, is not applicable to the facts of the present case as the issue in the present case is the effect of non-substitution of the heirs.
10. The effect of not passing orders on the application for condoning the delay may also be examined from another aspect. The revision was filed after the lapse of 19 years. It was accompanied by an application under Section 5 of the Limitation Act. It is an admitted position that no orders were passed on that application. It has been held by the Full Bench in Rama Kant Singh that if the revision is not defective, suo motu power cannot be exercised. In the Full Bench case, a necessary party was not impleaded and as such, the revision was defective and could only be treated as an information to the Court and in the circumstances, the Deputy Director of Consolidation having summoned the record could be treated to have exercised suo motu power in the revision. Where, however, application under Section 5 of the Limitation Act is filed, as in the present case, it cannot be said that the application in revision is merely an information for if the Court condones the delay, the revision would cease to be a defective one and as has been held by the Full Bench, if the revision is not defective, suo motu power cannot be exercised. In case an application under Section 5 of the Limitation Act is filed, the proper course is to pass orders on that application before exercising suo motu power. In case delay is condoned, there would be no occasion to exercise suo motu power as the revision would cease to be defective in which case suo motu power cannot be exercised. In case, however, delay is not condoned, it would be open to the Deputy Director of Consolidation to exercise suo motu power. If a contrary view is taken that suo motu powers can be exercised while an application under Section 5 of the Limitation Act is pending, an anomalous situation could be created that while the Deputy Director may, on examining the record suo motu without hearing the affected parties, have come to the finding that the order challenged does not call for interference, he would still have to decide the application under Section 5 of the Limitation Act and if he condones the delay, would have to hear the party coming in revision upon the merits of the order challenged in the revision which at a previous stage, the Deputy Director has in exercise of suo motu powers, affirmed. The proper course, therefore, is that in a case where an application under Section 5 has been filed, the Deputy Director of Consolidation should dispose of that application first. If the Deputy Director of Consolidation does not do so, it would be an irregularity of procedure. However, if the parties have been heard and substantial justice done, the Court may not find it a fit case for interference in exercise of extraordinary powers under Article 226 of the Constitution but that its quite a different principle which has no application here. In the present case, the order has been passed against a dead person and assuming that suo motu power has been exercised but that being without hearing the affected parties-the heirs of Mahadeo, it is necessary to quash the order of the Deputy Director of Consolidation, dated 7.12.1999 also. It is settled by the Full Bench that if the Court decides not to exercise revisional power suo motu, it is not necessary for it to hear the affected parties. It is only in case the Court decides to exercise suo motu power after examining the record that it shall give notice to all the necessary parties irrespective of the fact whether they were or were not impleaded in the application. If after examining the record, the Deputy Director of Consolidation is satisfied that the order challenged is correct, it would not be necessary for him to hear the applicants in the revision and he can straightaway dismiss the revision.
11. The Apex Court in Ram Kali Devi (Smt.) v. Manager, Punjab National Bank, Shamshabad and Ors., 1998 (4) AWC 138 (SC) : JT 1998 (8) SCC 529, has held that the merits of the case cannot be looked into without condoning the delay. In that case, the High Court has condoned the delay in filing the appeal but had not given any reason and the Supreme Court, in the circumstances, set aside the order of the High Court.
12. In the result, both the writ petitions are allowed. The orders of the Deputy Director of Consolidation, dated 7.12.1999 and 21,6.2000 in the writ petition of Bhanu Pratap Singh and others and the order dated 7.12.1999 in the writ petition of Saraswati Devi are quashed. The Deputy Director of Consolidation shall decide the revision afresh in accordance with law.