JUDGMENT

Mr. Vikas Bahl, J. (Oral)

This is a civil writ petition filed under Articles 226/227 of the Constitution of India for issuance of a writ in the nature of certiorari for quashing of order dated 09.12.2022 (Annexure P-4) passed by the Financial Commissioner, Punjab, whereby the revision petition under Section 16 of the PUNJAB REVENUE ACT against the orders passed by the Collector, Gurdaspur and the Assistant Collector II Grade, Gurdaspur has been dismissed on merits in the absence of the counsel.

2. Learned counsel for the petitioner has submitted that the petitioner had filed ROR no.143 of 2022 against the orders dated 13.12.2021, 20.08.2015 and 01.10.2014 and the case was listed on 02.09.2022 and on the said date, the matter could not be taken up and the case was adjourned to 09.12.2022. It is submitted that on 02.09.2022, learned counsel for the petitioner was present but on account of heavy Board, the matter could not be taken up. It is further submitted that on 09.12.2022 learned counsel for the petitioner could not appear before the Financial Commissioner on account of personal difficulty and the Financial Commissioner instead of either adjourning the matter or dismissing the same for non-prosecution, has dismissed the case on merits. It is stated that as per provisions of Order 41, Rule 17 (1) of CPC, it has been provided that in the absence of counsel for the appellant, the Court has power to pass an order of dismissal but the explanation specifically provides that the said power would not empower the Court to dismiss the appeal on merits. Learned counsel for the petitioner has relied upon the judgment of the Hon'ble Supreme Court in case titled as "Abdur Rahman and others v. Athifa Begum and others" reported as (1996) 6 SCC 62 to contend that at best, in case of non-appearance of the counsel, the appellate Court can dismiss the same for non-prosecution and should not decide the case on merits. It is argued that the proposition of law as propounded by the above said judgment would also apply to the cases pending before the revenue authorities including the Financial Commissioner. It is submitted that since the counsel was not present when the matter was dismissed, thus, the case of the petitioner could not be fully put forth before the Financial Commissioner and has prayed that the impugned order dated 09.12.2022 be set aside and ROR no.143 of 2022 be heard afresh.

3. Notices were issued to respondents no.6 and 7 on three occasions and as per the report of the Registry, on the third occasion, the same were received back with the report that respondents no.6 and 7 were not available at the time of service and notices have been affixed on their house gate. It is submitted that inspite of the same, no one has appeared on behalf of respondents no.6 and 7. Learned counsel for the petitioner has pointed out that the revision petition has been dismissed in limine without notice to respondents no.6 and 7 and thus, prayed that the matter be remanded to the Financial Commissioner for reconsideration.

4. Learned counsel for the State has submitted that in the present case, the dispute is between privates parties and the State is not a contesting party.

5. This Court has heard learned counsel for the parties and perused the paper book.

6. Order 41, Rule 17 (1) of the CPC reads as under:-

"17. Dismissal of appeal for appellant's default.--

(1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.

[Explanation.--Nothing in this sub-rule shall