Smt. Sonadevi and Another vs The Deputy Director of Consolidation and Others

R.M. Sahai, J.—On 30th April, 1970 objection filed by Petitioner was dismissed in default for non-appearance of Petitioner No. 1 and for withdrawal of her objection by Petitioner No. 2. Against this order Petitioner No. 1 filed an application for restoration alleging that she as well Petitioner No. 2 did not have the knowledge of proceedings and that Petitioner No. 2 did not withdraw. The application was allowed on 8-5-1973 by Consolidation Officer and the ex-parte order was recalled. Against this order opposite party No. 3 filed revision which was allowed and it was held that as Petitioners had knowledge there was no occasion for consolidation officer to recall the ex parte order.

It is true that finding recorded by Deputy Director of Consolidation is a finding of fact and may be supported by evidence on record but there are circumstances which indicate that Petitioners did not have knowledge of the proceedings. Apart from it, it is conducive in the interest of justice that dispute between parties should be decided on merits. In Ramji Das v. Mohan Singh 1978 ARC 496 it was held that ''where an ex-parte decree is set aside by the Court which granted it then higher Court should not exercise its discretion to set aside the decree and restore the exparte order''. Applying this principle laid down by Supreme Court the discretion exercised by Deputy Director of Consolidation cannot be said to be in accordance with law.

In the result this petition succeeds and is allowed. The order of the Deputy Director of Consolidation is quashed. The Consolidation Officer is directed to decide the case afresh in accordance with law. Parties shall bear their own costs.