A revision under S.3 of the U. P. (Temporary) Control of Rent and Eviction Act cannot be dismissed in default but must be decided on merits.

1. The main question raised in this special appeal is whether a revision under S.3 of the U. P. (Temporary) Control of Rent and Eviction Act (hereinafter referred to as the Act) can be dismissed in default. The matter relates to a certain house at Kanpur. Dr. (Smt.) Mitter is the owner of the house; and Smt. Sehgal occupied a portion of the house as Dr. (Smt.) Mifter's tenant. The landlady applied for permission under S.3 of the Act for eviction of the tenant. The Additional District Magistrate, Kanpur passed an order on 9-12-1968 granting the requisite permission to the landlady. The tenant filed a revision against the Additional District Magistrate's order granting permission. The Commissioner, Allahabad fixed the hearing of the revision at Kanpur on 19-3-1969. When the Commissioner took up the case at Kanpur on 19-3-1969, no one appeared before him on behalf or the tenant - revisionist. The Commissioner thereupon dismissed the tenant's revision in default.

2. Against the Commissioner's order dated 19-3-1969, Smt. Sehgal filed a writ petition. The writ petition has been dismissed by a single Judge of this Court. Smt. Sehgal has, therefore, filed the present special appeal.

3. The main contention of Mr. Ravi Dhavan appearing for the appellant is that the Commissioner, Allahabad could not dismiss the appellant's revision before him in default. The revision had to be decided on merits. On the other hand, Mr. K. M. Dayal appearing for respondent No. 3 has supported the view taken by the learned single Judge that it was open to the Commissioner to dismiss the appellant's revision in default.

4. In Smt. Gajrani v. Smt. Ram Rati , 1964 All LJ 75 : (AIR 1965 All 547) it was held by a Division Bench of this Court that O.41, R.17, C.P.C. permits an appellate Court to follow the procedure of R.30 and dismiss an appeal on merits even though the appellant is absent. All that was decided in Smt. Gajrani's case was that it is open to the appellate Civil Court to dispose of a civil appeal on merits in spite of the appellant's absence. The problem in the instant case is the reverse. The question for consideration here is whether a revision can be dismissed in default.

5. In G. P. Dixit v. State of U. P. , 1969 All LJ 460 it was held by Satish Chandra, J. that if a power to dismiss an application for default of appearance is deemed to be in the Rent Control Officer, the reverse power would go with it. The Rent Control Officer has the requisite authority to set aside his earlier order dismissing an application. The question that arose for consideration was whether the Rent Control Officer had the power to restore an application that had been dismissed in default. The Court was not directly concerned with the question of the competence of the Rent Control Officer to dismiss an application for default of appearance of the applicant. Moreover, the Court was concerned with the proceedings before the Rent Control Officer. In the instant case we are concerned with the proceedings before the Comissioner under sub-section (3) of S.3 of the Act.

6. In Duryodhan v. Sita Ram , 1969 All LJ 87 : (AIR 1970 All 1 (FB)) it was held by a Full Bench of this Court that the power of dismissal for non - appearance has been expressly conferred upon Election Tribunals under S.90 and S.92 of the Representation of the People Act, 1951. The Court noticed that O.9 and O.17 of Code of Civil Procedure have been made applicable to trial of election petitions. Mr. K. M. Dayal conceded that the provisions of the Code of Civil Procedure do not in terms apply to proceedings before a Commissioner u