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Judgment
Rajiv Sharma, J.
Heard learned Counsel for the parties.
Counsel for the petitioners submits that on initiation of consolidation proceedings, petitioners filed objections under Section 9A(2) of the U. P. Consolidation of Holdings Act indicating therein that the plot No. 132/1 is an ''abadi'' land which has incorrectly been shown as ''banjar''. After obtaining reports, the Consolidation Officer by the order dated 4.12.1969 allowed the objections and directed for recording the same as ''abadi''.
According to the counsel for the petitioners, in 1977, one Kailash Yadav made a complaint to the Settlement Officer (Consolidation) on the executive side in respect of the aforesaid land. On the basis of the report of the Settlement Officer (Consolidation) the Deputy Director Consolidation vide order dated 2.2.1977 set aside the order passed by the Settlement Officer (Consolidation). When the petitioner came to know the aforesaid order, he moved an application on 15.12.1977 for setting aside the ex parte order dated 2.2.1977. This application was rejected by the Deputy Director of Consolidation vide order dated 6.6.1978.
Counsel for the petitioners contends that before passing the impugned order dated 2.2.1977, neither any notice was ever issued to the petitioner nor opportunity of hearing was ever afforded. Further, the complainant Kailash Yadav has neither filed any objections before the Consolidation Officer nor has any concern with the land in question. He further submitted that the finding recorded by the Deputy Director of Consolidation in his order dated 6.6.1978 to the effect there was an inordinate delay in making the application for setting aside the ex parte order dated 2.2.1977 is wholly misconceived and is total denial of justice.
It is a cardinal principle of law that the court should decide the case on its merits rather than on the technicalities. The said principle has been reiterated in State of U.P. & others Vs. Harish Chandra & others (1996) 9 SCC 309 and State of Bihar and others Vs. Kameshwar Prasad & another (2000) 9 SCC 94 wherein it has been emphasized that the Court should decide the case on merits rather than on technical grounds. The Court should have taken liberal view while passing the order on the application for condonation of delay. In Salem Advocates Bar Association vs. Union of India 2003 (23) LCD SC 1250 the Hon''ble Supreme Court has held as under:
"The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure, which promotes justice and prevents miscarriage has to be preferred. The rules of procedure are hand maid of justice and not its mistress."
A perusal of the impugned order dated 6.6.1978 shows that the application of the petitioners was rejected on the ground of delay. The order dated 2.2.1977 is also a telegraphic order, wherein only this much is mentioned that there is no objection to anyone and as such, reference is accepted and the entries in CH2 are deleted. No reasons have been assigned for deleting the entries in CH2. It is relevant to mention here that in the order dated 2.2.1977 only the description of the report is mentioned, but there is no mention of any fact relating to issuance of notice to the petitioner or giving time to file objections.
When the petitioners moved application for recall of the said order dated 2.2.1977, the same was rejected on the ground of delay. The Deputy Director of Consolidation committed error in not considering the pleas raised by the petitioner for recall of the order dated 2.2.1977. Admittedly, the order dated 2.2.1977 was an ex parte order and when the petitioners moved application it was onerous duty of the Deputy Director of Consolidation to have examined the record and only thereafter should have passed the order. Nothing of this sort has been done resulting in gross miscarriage of justice.
In view of the foregoing discussion, the writ petition is allowed and the impugned orders dated 2.2.1977 and 6.6.1978 passed by the Deputy Director of Consolidation are hereby quashed. It is further provided that the matter is remitted to the Deputy Director of Consolidation to decide the matter on merits, in accordance with law. He shall make an endeavour to decide it, after giving an opportunity of hearing to all the parties concerned, within six months, within a maximum period of six months, from the date of receipt of this order, as the matter is quite old.