- (1.) R. B. Mehrotra, J. Heard learned Counsel for the petitioner as well as learned Standing Counsel.
(2.) IN the facts of the case, learned Standing Counsel has agreed that no counter affidavit need to be filed. Learned Counsel for the parties have agreed that this writ petition may be disposed of at the admission stage. Aggrieved by the order of the Prescribed Authority, passed under the U. P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the Act, the petitioner preferred an appeal in the court of the Commissioner, Gorakhpur Division, Gorakhpur. The appeal was fixed for hearing on 16-1- 1996. An application was filed on behalf of the petitioner, that since grandson of the appellant has died all of sudden, the appellant could not come to pursue his appeal and the counsel are collectively boycotting the court, therefore, a request was made by means of an application that the matter may be fixed for hearing on some other date. The said application was rejected by the Commissioner, Gorakhpur Division, Gorakhpur vide his order dated 16-1-1996 stating that the person who has moved the application does not hold any power of attorney on behalf of the appellant. Neither the appellant nor his Counsel are present, hence application is rejected. Thereafter, the Commissioner, Gorakhpur Division, Gorakhpur dismissed the ap peal on merit by order dated 1-2-1996. Aggrieved thereby the present writ petition is being filed. Section 38 of the Act provides that the appellate Court while deciding the appeal under the Act will follow the procedure for the hearing and disposal of the appeals laid down in the Code of Civil Procedure. Order XLI, Rule 17, C. P. C. provides that in absence of the parties the appeal could be dismissed only in default and not on the merits.
(3.) IN view of the aforesaid mandatory provision the impugned order was passed dismissing the appeal on merits in violation of the mandate of Order XLI, Rule 17, C. P. C. Accordingly, the aforesaid order is to be set aside. IN the cir cumstances of the case, it is directed that the petitioner's appeal be fixed for hear ing on some date with in a month on the petitioner's presentation of a certified copy of this order. Learned Counsel for the petitioner has also given undertaking that the petitioner will not seek any adjournment before the Commissioner while deciding the appeal. The appeal will be heard and decided on merits on the date fixed by the Commissioner, Gorakhpur Division, Gorakhpur in pursuance of this order. The order dated 1-2-1996 passed by the Commissioner dismissing the appeal, is hereby quashed. However, it is being made clear that in case the petitioner fails to file a certified copy of this order within fifteen days from today or violates the undertaking by his Counsel the petitioner will not ger the relief granted by this order. It is further directed that the petitioner will not be dispossessed from the surplus land till the decision of the petitioner's appeal. Certified copy of this order may be given to the learned Counsel for the parties on payment of usual charges within four days. Petition allowed. .;