ORDER R.M. Sahai, J.
1. Facts giving rise to this petition are not material but the short and important question that arises for consideration is whether the Deputy Director Consolidation was justified in deciding the petitioner's revision ex parte. An application for restoration filed on the same day failed on the ground that it amounted to review of the order which was not provided under law.
2. Objection filed by the petitioners claiming to be sole tenure-holders of the Khata in dispute was allowed by the Consolidation Officer. The opposite party (since deceased) succeeded in appeal against which the revision filed by the petitioners was decided ex parte on 2-7-1970 on the ground that the court cannot wait indefinitely.
3. The reason for non-appearance of the counsel as stated in paragraph 4 of the writ petition was illness of his wife to whom he had taken to a Doctor. This allegation is not admitted in the counter-affidavit but it is substantiated by the application for restoration, filed on the same day, copy of which has been filed as annexure 'D' to the petition.
4. There is no reason to doubt that the counsel was prevented from appearing due to a reason which was bona fide. Power to decide a case ex parte is provided to courts and tribunals to put a check on negligence and abuse by a party and not to clothe authorities to curtail the cherished right of hearing. There is no whisper either in the order or counter-affidavit that the petitioner was in any manner negligent or careless. In order to safeguard his interest and assist the court in arriving at a correct decision the petitioner did whatever was possible by handing his case to a counsel to plead for him. If such a person could not reach when the case was called for reasons which were bona fide, can the petitioner be fastened with the penalty of non-hearing? By deciding the case ex parte due to absence of lawyer the court penalised the petitioner for no fault of his. By the nature of duty and extensive powers that the Legislature in its wisdom has thought fit to confer on these authorities, who have been appointed as the final court for deciding the right of parties, the exercise of power should be with responsibility and care. The bulk of the agricultural litigant with smaller holding and scanty means may not be able to approach this court. Higher the court greater the responsibility. The anxiety should be to decide and do justice rather than to dispose of a case.
5. The default, if any, in this case was of the counsel. The Deputy Director Consolidation failed to distinguish between the absence or neglect of party and the delay in reaching of a counsel. The matter is a flimsy ground for proceeding ex parte unless the court comes to the conclusion that the counsel is deliberately avoiding coming to the court. Even in such cases it would be reasonable to give an opportunity to engage another lawyer. And the extreme step of passing an ex parte order should be undertaken only as a last resort.
6. Section 41 of U. P. Consolidation of Holdings Act applies to Chapters IX and X of the U. P. Land Revenue Act unless expressly provided otherwise. Sections 200 and 201 of the U. P. Land Revenue Act fall under Chapter IX. Section 200 confers the power to decide ex parte and Section 201 gives the right for getting the order set aside on showing good cause for non-appearance. The application for restoration was thus maintainable as there is nothing contrary to this in Consolidation of Holdings Act.
7. The use of the word 'negligent' in Section 200 is not without meaning. There is no such word either in Order VIII Rule 6 or Order VIII Rule 8 of the Civil P. C. The mere fact that there was delay in calling the counsel or the counsel was delayed did not amount to negligence in appearance of party. Admittedly the petitioner was present. There is no finding that he or the counsel was delaying the hearing of the revision. Even assuming for a moment that these provisions did not apply the Deputy Director Consolidation had an inherent right to set aside the ex parte order. The function of the court is to advance justice and not to throttle it. Without going into the allegation made in the petition that the Deputy Director Consolidation threatened to turn out the Clerk of the counsel from the court room there could be no justification to dismiss the restoration application as not maintainable. Once the reason for non-appearance was brought to the notice of the court there was no fetter on its power from setting aside the ex parte order and granting an opportunity of hearing to the petitioner. The Deputy Director Consolidation instead of preventing miscarriage of justice took shelter behind procedural stiffness which as pointed out above was not there.
8. For reasons stated above the order passed by the Deputy Director Consolidation dated 2nd July 1970 deciding the revision ex parte filed as Annexure-C and the order dated 2nd Nov. 1970 dismissing the application for restoration filed as Annexure-E to the Writ Petition are quashed. The Deputy Director Consolidation is further directed to decide the revision afresh in accordance with law.
9. In the circumstances of the case the parties shall bear their own costs.