Court No. - 44
Case :- WRIT - B No. - 1025 of 2019 Petitioner :- Manta @ Manik Chand And 9 Others Respondent :- Deputy Director Of Consolidation And 8 Others Counsel for Petitioner :- Mahesh Narain Singh,M.N. Singh Counsel for Respondent :- C.S.C.
Hon'ble Rajiv Joshi,J.
Heard Sri M.N. Singh, learned counsel for the petitioners and learned Standing counsel for the State-respondents.
The present writ petition has been filed challenging the order dated 7.2.2019 passed by the Deputy Director of Consolidation in Restoration No. 932/807 filed under Section 48 of U.P. Consolidation of Holdings Act (in short 'Act').
The facts as reflect from the record that the objection field by the petitioners under Section 9-A (2) of the Act was allowed by the Consolidation Officer vide order dated 30.10.1989, in which sale-deed executed in favour of the petitioners dated 30.7.1954 was approved. Against the said order, appeal was field by Kharpat (father of respondent nos. 2 to 4) which was dismissed in default on 3.1.1991, thereafter, restoration application was filed before the Settlement Officer Consolidation which too was dismissed in default vide order dated 4.12.1996, again the second restoration application was filed on 28.8.1998 which was dismissed on 24.7.2003, in the meantime, father of respondent nos. 2 to 4 Kharpat filed a revision challenging the order dated 3.1.1991 and 4.12.1996 whereby his appeal was dismissed in default and first restoration application was dismissed in default.
Against that order, revision was filed by Kharpat, was dismissed in default vide order dated 1.4.1999. In the meantime, father of respondent nos. 2 to 4 Kharat died and respondent nos. 2 to 4 were substituted his legal heirs and they filed an application for recalling the order dated 1.4.1999 which has been recalled vide impugned order and revision was restored to its original number fixing date for hearing. The order dated 7.2.2019 passed by the Deputy Director of Consolidation is impugned in the writ petition.
Contention of learned counsel for the petitioner is that the second restoration application was rejected on 24.7.2003 but the order rejecting his second restoration application passed by the Settlement Officer Consolidation has not been challenged in the revision and the order dated 3.1.1991 dismissing the appeal in default as well as order dated 4.12.1996 dismissing restoration application in default were merged in the order dated 24.7.2003 and therefore, the revision without challenging the order dated 24.7.2003 is not at all maintainable and the respondent no.1 has committed illegality while allowing the restoration application and restore the revision to its original number.
I have considered the submission so raised by the counsel for the petitioner and perused the record.
The doctrine of merger is not applicable, in case the restoration application is dismissed for want of prosecution, even if, I assume that the revision against the order dismissing in default and the restoration application dismissing it for want of prosecution is not maintainable, but the revision has not yet been decided on merits and it is open to the petitioner to raise such plea before the revisional authority with regard to the maintainability of the revision. By the impugned order only the restoration application was allowed restoring the revision to its original number. The petitioner had a remedy to raise such plea before the revisional authority on merits.
I do not find any illegality or infirmity in the order impugned. The writ petition lacks merit and is accordingly dismissed. No order as to costs.
Order Date :- 29.4.2019 Akbar