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Judgment
Rajes Kumar, J.—Heard Sri Prakash Chandra, learned Counsel for the petitioner and learned Standing Counsel appears on behalf of respondent Nos. 1 to 3 and Sri Santosh Srivastava, learned Counsel appears on behalf of respondent No. 4.
Learned Counsel for the petitioner submitted that the impugned order, by which the restoration application of the petitioner has been rejected is patently illegal. He submitted that the petitioner filed restoration application on the ground that the notice dated 6.6.2007 fixing the date of hearing on 11.6.2007 has not been served upon the petitioner. He further submitted that the alleged thumb impression of the petitioner was forged. Therefore, the restoration application should be allowed.
In my view, Court below has taken pedantic view while in the matter of recalling application, justice oriented, approach and pragmatic view should be taken as held by the Apex Court in the case of Mahendra Rathore v. Omkar Singh and others AIR 2002 SC 505.
In the present case petitioner has denied the service of the notice dated 6.6.2007 and has stated that her thumb impression on the notice was forged. No evidence has been adduced to the contrary. It is settled principle of law that the burden lies on the person, who is affecting the service of the notice to prove the proper service.
In this view of the matter, on the facts and circumstances of the case, in my view the restoration application is liable to be allowed and the same is accordingly, allowed.
In the result, writ petition is allowed. Order dated 1.9.2008 is set aside the restoration application is allowed and the order dated 4.7.2007 passed by Deputy Director of Consolidation, Muzaffarnagar is recalled. Deputy Director of Consolidation is directed to decide revision No. 191, Harikishan v. Malkhan and others, afresh expeditiously preferably within a period of two months from the date of presentation of the certified copy of the order strictly in accordance to law, which the petitioner undertakes to file within a period of two weeks.