Hon’ble A.P. Sahi, J.—Heard Sri Yanendra Pandey, learned counsel for the petitioner, Sri M.N. Singh, learned counsel for respondent No. 2, learned Standing Counsel and perused the material on record.

2. This petition questions the legality of the order passed by the Deputy Director of Consolidation, Varanasi (in short “the DDC”), whereby he has rejected the application moved on behalf of the petitioner for restitution of the judgment of the Consolidation Officer dated 30th July, 1994, on the ground that the entire evidence, which was available on record has been scanned by the appellate authority (Settlement Officer, Consolidation) and therefore applying the principles of merger, the DDC has arrived at the conclusion that loss of the judgment of the Consolidation Officer will in no way impede the proceedings.

3. Sri Yanendra Pandey,learned counsel for the petitioner has submitted that the aforesaid approach of the DDC is erroneous inasmuch as the findings and the reasons recorded in the order of the Consolidation Officer had to be necessarily gone into before any decision could be taken and that since judgment was not available on record, the appellate authority committed grave error by proceeding to decide the appeal and ought to have remanded the matter for a fresh trial. He, further, submits that the DDC has also errred by rejecting the application for restitution and the order impugned causes serious prejudice to the petitioner.

4. Sri M.N. Singh, who has put in appearance on behalf of the contesting respondents urged that the loss of the judgment of the Consolidation Officer was the doing of the petitioner’s son Rajendra, who was subjected to proceedings in a criminal case. Sri Singh has, further, submitted that in view of the law laid down in the case of Ram Khelawan v. Deputy Director of Consolidation, 1987 RD 350, the question of reconstruction of the judgment does not arise as it is admitted between the parties that neither the judgment nor the copy thereof is available.

5. He, further, contends that the gist of the judgment and its operative part was very much available on the order-sheet and the same was made the foundation of the appeal filed by the petitioner. A copy of the memorandum of appeal has been placed before the Court to demonstrate the same. He, further, submitted that the entire evidence was before the appellate authority as well, and therefore no prejudice was caused to the petitioner to represent his cause before the appellate authority. He contended that this is not a case of loss of evidence as was in the case of Ram Khelawan (supra) and, therefore, there is no ground to entertain the request of the petitioner, which has been rightly declined by the DDC.

6. In Rejoinder, Sri Yanendra Pandey has urged that so far as the criminal case is concerned, there is already an order of acquittal and, therefore, there is absolutely no cause for the respondents to derive any advantage out of the said alleged incident in which the petitioner’s son was sought to be falsely implicated.

7. The crucial question in the writ petition is as to whether the DDC has rightly refused to enter into the question of reconstruction of the judgment of the Consolidation Officer and as to whether the application of the petitioner was rightly rejected or not.

8. It is evident that both the parties admit that there is no other copy of the judgment of the Consolidation Officer available anywhere. It is also admitted that the separate order of the Consolidation Officer went missing as it was forcibly snatched, the moment it was pronounced in the Court.

9. Thus it is a case where the judgment was delivered about which there is an endorsement on the order-sheet. This fact is also not disputed, that the petitioner contested the appeal and he had full opportunity and access to every evidence at the appellate stage that was available before the Consolidation Officer. The order of the appellate authority dated 3rd September, 1996 is