A. Banerji, J. - (1.) This writ petition is directed against the orders passed by the Second Additional District Judge, Allahabad dated 1-12-1975. The first order was passed in an appeal against an order of allotment. The Second order was passed dismissing the restoration application made by the petitioner. The third order directed the Reader to complete the order sheet of 1-12-1975. It is contended on behalf of the petitioner that the respondent No. 1 had adopted a procedure which was illegal and had resulted in a manifest error of law.
(2.) It is necessary to state a few facts relevant for the purpose of deciding this writ petition. The petitioner claimed that he was a tenant of the house in dispute owned by the respondent No. 2. He claimed that he was a tenant of the building since the year 1966. He applied for the allotment of the house. A notice was issued to the landlady respondent No. 2. The Rent Control Inspector submitted a report. By in order dated the 10th of January, 1975 the Rent Control and Eviction Officer had allotted the premises in dispute in favour of the petitioner. Thereupon the landlady filed an appeal before the District Judge. On the 26th October, 1975 the landlady made an application praying for admitting additional documentary evidence. This application was allowed the same day. Thereafter the case was listed on 1st December, 1975. On that date the learned counsel for the petitioner did not appear before the appellate Authority and ultimately after hearing the counsel for the landlady the appeal was allowed. The Additional District Judge held that the building was one which did not come within the purview of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. He therefore, held that there could be no order of allotment of the premises. A part from the above finding the Appellate Authority also held that the notice issued by the Rent Control and Eviction Officer prior to the allotment of the house was not served in accordance with the mode of service provided in Rule 28 of the Rules made under the aforesaid Act. There was neither any tender of notice personally or on an adult member of the family nor was the notice served by affixation. However, in view of the finding that the building did not come with in the purview of Act XIII of 1972 the order of allotment passed by the Rent Control and Eviction Officer was set aside. Thereupon the petitioner had moved an application for setting aside of the above order and restoring the appeal to be decided on merits. In the application it was stated that the petitioner had made a request to the Court that his counsel was busy arguing an appeal and had asked for time, but by the time the counsel came to the Court the judgment had been delivered by the respondent No. 1 allowing the appeal. It was further stated that the correct facts had not been stated to the Court and the papers (presumably the additional evidence) related to a different house. It was also stated in the affidavit of the petitioner that it was not borne out from the order sheet that the case was fixed for 1st December, 1975. This application was disposed of by an order dated 13th December, 1975 when the Court held that the petitioner was present in Court but his counsel did not appear in spite of waiting for an hour. Even in the application the counsel appeared after 25 minutes. The Court observed that the petitioner's counsel did not appear intentionally on the date of hearing. The Court further held that the decision on the merits made on the 1st of December, 1975 was correct and he was not prepared to interfere. A further order had been passed on the 15th December,1975 wherein the Court refuted the argument that no date had been fixed for arguments in the case on the 1st of December, 1975. The Court referred to the order sheet of the case as well as the diaries kept by the Court and the Reader that the 1st December, 1975 was fixed for hearing of the case. The Court, hower, observed that the Hindi order sheet had been written on 1st December, 1975. The Reader was directed to complete the order sheet of 1st December, 1975. After it had been completed the Second Additional District Judge had put his signature on the order sheet dated 15th December, 1975.
(3.) Learned counsel for the petitioner contended that the restoration application should have been allowed as the order on the appeal was passed during the absence of the learned counsel for the petitioner. It was urged that the absence of a counsel who was busy in another Court was a sufficient ground for setting aside the order. It appears that the petitioner has not been telling the truth. The application for restoration he stated that he had gone to the Appellate Authority and had asked for time as his counsel was busy arguing a civil appeal before the Civil Judge. In the writ petition he has come out with entirely a different story. He has stated that on 1st of December, 1975 he happened to be in the District Court in connection with his other criminal and revenue cases. There he saw the respondent No. 2 outside the court of respondent No. 1. He had looked into the Court to find if his counsel was there. Finding that the counsel was not there he immediately went to call his counsel to see if there was some proceeding in the Court. The counsel was busy in the Court of Munsif, West. As soon as he bacame free and went to the Court of respondent No. 1 the appeal in the meantime had been allowed. The petitioner had also filed an affidavit in a Civil Revision No. 2230 of 1975 in this Court against the order dated 1st December, 1975. In that affidavit he had stated that the appeal came up for hearing before the Second Additional District Judge on 1st December, 1975. At that time his counsel was busy in another court. The petitioner went to inform his counsel about the hearing in the appeal before the respondent and as soon as he came within a few munutes the appeal in the meantime had been allowed in favour of the respondent No. 2. It is, therefore, apparent that the petitioner has not struck to his story originally taken and has been changing the same. The allegations made in the writ petition appear to have been probably inserted in order to take up the plea that he was not aware of the date fixed for the hearing of the appeal on 1st of December, 1975. It is clear from the affidavit in support of the restoration application as well as in the civil revision that he was aware of the date 1st of' December, 1 475. This fact cannot also be denied that the date 1st of December, 1975 was fixed on the 24th October, 1975. The order sheet of the 24th October, 1975 has not been challenged nor has it been alleged to be wrong. All that is stated is that there was no signature of the counsel or the petitioner on the margin of the order sheet. The record of this case had been sent for and I have perused the order sheet. There is not a single endorsement anywhere about the noting of the date by the counsel or the party concerned. It is also apparent that the additional evidence was permitted to be brought on the record by an order dated 24th October, 1975. The counsel for the petitioner Shri V.C. Srivastava was present on that day according to the order sheet. This fact too has not been denied. Thus the petitioner was aware of the additional evidence being taken on record. The order sheet of the 21th October, 1975 further shows that the petitioner was granted an opportunity to file his evidence in rebuttal within fifteen days. No such evidence had been filed. It is, therefore, entirely wrong to state that these papers were taken behind the back of the petitioner and did not pertain to the house in dispute. The contention of the learned counsel for the petitioner that the Court passed an order on papers surreptitiously is wholly without any basis The order sheet of 24th October, 1975 establishes that the 1st of December, 1975 was fixed for the heating of the appeal. The petitioner, therefore, was aware of the date fixed in the appeal. The respondent No. 1 has stated in his order that the petitioner was present in court but his counsel was nit. The petitioner does not appear to have made any reply to the arguments in the appeal. If the petitioner was aware of the date fixed in the appeal and was present in court then it cannot be said that the appellate Authority was in error in not setting aside the order dated 1st December, 1975 and in not restoring the appeal. In my opinion, the order refusing to restore the appeal cannot be termed to be manifestly erroneous nor can it be said to contain an error apparent on the face of the record so as to interfere with the order.;