The discretion vested in judges by statute or at common law must be exercised judicially and not arbitrarily or idiosyncratically.

B.L. Yadav, J.

What must be the precise contours of the judicial discretion exercised by the Director of Consolidation in a restoration application filed in a revision dismissed in default, is the short but significant question involved in the present writ petition filed under Articles 226 and 227 of the Constitution of India. The petitioners have prayed that the impugned order dated 25.11.1992 (Annexure 3) passed by the Director of Consolidation, Bihar, Patna (respondent no. 4) in Revision Case No. 1417 of 1962 (Jaishri Lohar & others vs. Moulvi Lohar and others) filed under Section 35 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (for short "the Act") as well as the order dated 25.8.82 passed by the Assistant Director of Consolidation (Annexure 2) in appeal and the order dated 25.8.1978 (Annexure 1) passed by Consolidation Officer be quashed by issuing a writ of certiorari.

2. The main controversy is about the revisional order dated 25.11.1992 (Annexure 3) rejecting the restoration application preferred by the petitioners. The petitioner has got a chequered history. The relationship between the petitioners and contesting respondent nos. 5 to 7 would appear from the genealogical table given under paragraph 4 of the writ petition. Both the parties are descendants of Rameshwar Lohar, common ancestor of the parties. The petitioners are descendants of Raghunandan, whereas the contesting respondents are descendants of Raghupat. The plots in dispute were situated in village Pandeypur, Parai, Maghigawan and Dhobahan, P.O., P.S. Chand, District Bhabhua. The parties have been litigating before the Civil Courts also. Inter alia the dispute was about the validity of sale deed and mortagage deed and the effect of the Civil Court decree and whether it would operate as res judicata. The petitioners preferred a Revision under section 35 of the Act, which was dismissed in default on 17.10.1987. At that time (on 17.10.1987) Mr. Gupteshwar Prasad was the counsel for the petitioners, but he died in 1987 and the petitioners could not know about the date fixed as their counsel was dead and the matter remained unattended for some time. Thereafter a restoration petition was filed and it was allowed. The petitioners again engaged Mr. Rewati Raman Saran as their counsel. Per chance he also died on 9.1.1989. The petitioners again could not know about the death of Mr. Rewati Raman Saran. Thereafter no other counsel appeared and when the Revision was listed on 11.3.1992 it was dismissed in default. A restoration petition was again filed but the same was dismissed on 25.11.1992 (Annexure 3) by the impugned order, on the ground that the earlier restoration petition was allowed in 1985, hence subsequent restoration could not be allowed.

3. The learned counsel for the parties suggested that as counter affidavit and rejoinder thereto have been filed, the petition be decided on merits.

4. Learned counsel for the petitioners urged that per chance the learned counsel engaged by the petitioners on both the occasions died. Mr. Gupteshwar Prasad, the learned counsel engaged at the time of filing of Revision, died in 1985 and when the case was listed the petitioners could not know about the date fixed as their counsel was dead, hence the revision was dismissed in default. Then restoration petition was filed and the same was allowed. Later on Mr. Rewati Raman Saran was engaged as counsel for the petitioners, but he also died before the date fixed on 11.3.1992, when the case was called out and the petitioners had no knowledge about the date fixed, hence it was dismissed in default. Then restoration petition was filed, but it was dismissed by the impugned order on the ground that as earlier restoration was allowed, hence it cannot be allowed again and again. On both the occasions the revision was dismissed on account of the circumstances beyond the control of the petitioners, and there was no laches on the part of the petitioners