The appellate court is not empowered to dismiss the appeal on merit in the absence of the appellant.

Heard Sri Sarvesh Agrawal, learned counsel for the petitioner and Sri Sudhir Kumar, learned Brief Holder for the State-re spondent.

2. By means of this writ petition, the petitioner has sought a writ to issue or der or direction in the nature of certiorari quashing the impugned notice (Annexure No. 1 to the writ petition), order dated 12. 5. 1991 passed by the Prescribed Authority (Annexure No. 2 to the writ petition), order dated 7. 6. 1995 passed, by the respondent no. 1 (Annexure No. 6 to the writ petition) and the order dated 29. 6. 1995 passed by the respondent no. 1 (Annexure No. 7 to the writ petition ).

3. According to the petitioner the brief facts in short giving rise to the writ petition are that he was not issued no tice under Section 4 (1) of the Public Premises Act (U. P. Act 22 of 1973 ). The notice was confirmed by the Prescribed Authority without hearing to the peti tioner on the ground that in the other case, the order for eviction was passed against one Smt. Kalawati and on the basis of the said order; the petitioner was also ordered to be evicted.

4. Aggrieved by the eviction order, the petitioner preferred appeal which was heard in the absence of the peti tioner and was dismissed on 7. 6. 1995. The restoration application to recall the ex parte order was also dismissed on 29. 6. 1995.

5. Aggrieved by all the orders, the petitioner has preferred this writ petition.

6. I have heard the learned counsel for the parties and perused the material on record.

7. It reveals from the impugned or der dated 29. 6. 1995 that the restoration application was moved within time and the application was rejected on the ground of non-appearance of the coun sels of the parties. It is well settled that due to the negligence committed on the part of the counsel, the petitioner could not be penalized and there was a suffi cient reason before the court to hear the case on merit because the application was filed within the time prescribed for the restoration application.

8. The Rule 10-A confers the power on the Prescribed Authority or on an ap pellate authority to exercise the power of the Civil Procedure Code.

9. In view of the explanation of Or der 41 Rule 17 as inserted by C. P. C. Amendment of 1973 w. e. f. 1. 2. 1977, the Appellate Court is not empowered to dis miss the appeal on merit. I am sup ported in my views by the Apex Court Judgment reported in JT 2008 (11) at page 397 (The Secretary of Horticulture, Chandigarh & another Vs. Raghu Raj) wherein the counsel for the parties were absent and the appeal was decided in absence of the counsel of the parties. The facts of this case are also identical to that case. The Honble Apex Court has also held that the appeal could have been dismissed in default but not on merit without giving opportunity to the appellant.

10. In view of the said mandatory provision the appellate court has fell into error in deciding the appeal on merit in the absence of the appellant. Therefore the order is set aside on this ground alone. The writ petition is liable to be allowed.

11. The writ petition is allowed.

12. The impugned order 29. 6. 1995 whereby the restoration/recall applica tion for recalling the ex parte order and the order dated 7. 6. 1995 whereby the appeal was decided on merit in the ab sence of the appellant, are set aside and the appellate court is directed to decide the appeal on merit after hearing the pe titioner on merit as expeditiously as pos sible.

13. Interim order dated 31. 7. 1995 stands vacated.

14. All pending applications stand disposed of accordingly.

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