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Mahendra Singh vs Board of Revenue, U.P., Allahabad and others

Allahabad High Court · Decided on 25 September 2008 · Citation: (2008) 09 AHC CK 0115

HON’BLE JUDGES
Rajes Kumar, J
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6 paragraphs · 333 words

Rajes Kumar, J.—Heard Sri Dinesh Rai, learned Counsel for the petitioner, learned Standing Counsel appears on behalf of respondent Nos. 1 and 2 and Sri V.K. Singh appears on behalf of respondent No. 3.

2.

By means of the present petition, the petitioner is challenging the order of the Member, Board of Revenue dated 26th August, 2008 by which restoration application has been rejected.

3.

It appears that date of hearing was fixed 18.7.2008 and the second appeal was decided ex parte in absence of the petitioner''s Counsel. The petitioner moved restoration application along with affidavit stating therein that inadvertently the date of hearing could not be noted and, therefore, the Counsel for the petitioner could not appear on the date fixed. The Member, Board of Revenue without any valid reason rejected the application.

4.

Having heard the learned Counsel for the parties, I have perused the impugned order dated 26th August, 2008.

5.

In the case of Mahendra Rathore v. Omkar Singh and others AIR 2002 SC 505 the Apex Court held that in the matter of restoration pragmatic and justice oriented view should be taken and not pedantic view. The petitioner contended that inadvertently the date of hearing could not be noted, which was supported by an affidavit, there is no reason to disbelieve the contention of the learned Counsel for the petitioner. In this view of the matter, restoration application is liable to be allowed.

6.

In the result, writ petition is allowed. The order dated 26th May, 2008 is set aside. Restoration application is allowed and further exparte order dated 4.8.2008 passed by the Member, Board of Revenue in Second Appeal No. 39 of 20072008, Mahendra Singh v. State of U.P. and others, is recalled and the aforesaid Second Appeal is restored to its original number. Petitioner may file certified copy of the order within two weeks and the Member, Board of Revenue is directed to decide the Second Appeal expeditiously, preferably within a period of two months thereafter.