D.K. Seth, J. - (1.) CASE No. 243 of 1979 initiated under Section 5 U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972, was allowed ex -parte against the petitioner, being the opposite party therein, by an order dated 21.3.1979. On the allegation that the said order was obtained by manipulating the summons the application for setting aside ex -parte order was made by the petitioner. By an order dated 23.3.1984 the said application was rejected on the ground that sufficient cause was not shown for non -appearance. Against the said order an Appeal, being Civil Appeal No. 175 of 1984 was preferred under Section 9 of the said Act. By order dated 5.8.1985 the said appeal was dismissed on the ground that the order appealed against the order was not an order passed by the Prescribed Authority under Section 5 of the said Act, as contemplated in Section 9 thereof. Sri G.N. Verma, learned counsel for the petitioner contends that the order which was passed in exercise of Section 5 of the Act can be recalled only in exercise of the powers conferred on him under that section and not otherwise. There is no other provision under which the same would be governed. Therefore, dismissal of the appeal on the said ground is incompetent.
(2.) SRI Chhotey Lal, learned Standing Counsel submits that notices were duly served. Therefore there is no infirmity in the order dated 23.3.1984. Therefore, it is not necessary to enter into the question of validity of the order dated 5.8.1985. After having heard Sri G.N. Verma and Sri Chhotey Lal, learned counsel for the parties it appears that the application for setting aside the order dated 21.3.1979 was made in the same proceeding, being Case No. 243 of 1979. Therefore, the impugned order dated 23.3.1984 was passed in a proceeding under Section 5 of the said Act, being Case No. 243 of 1979. There is no other provision in the Act for entertaining the application for setting aside ex -pane order. In any event it is an application for setting aside the same order in the same proceeding, which is being proceeded with under Section 5 of the said Act. If the said application is allowed then the order under Section 5 of the said Act is set aside. In case it is not then the same order is allowed to stand. Therefore, it cannot be said that this is not an order under Section 5 of the said Act. Section 9 of the said Act prescribes that appeal shall lie from every order of the Estate Officer made in respect of any public premises under Section 5 to the appellate officer. Therefore, all orders passed under Section 5 of the Act are appealable. Thus 'every order' would include the order passed in the proceeding under Section 5 of the said Act, refusing to set aside ex -parte order, passed under that section. There is no other section which confers jurisdiction on the Prescribed Authority to pass order in respect of ex -parte order passed under Section 5 of the said Act. Therefore by no stretch of imagination it can be said that the said order is an order other than the order passed under Section 5 of the said Act.
(3.) IN that view of the matter the order dated 5.8.1985 can not be sustained and, as such, is hereby set aside. The appellate authority is hereby directed to re -hear the appeal on merits. The respondents shall be emitted to take question of limitation, if available, as contended by the learned Standing Counsel. Since long time, in the meantime, has passed, it is expected that the said appeal should be disposed of as expeditiously as possible, preferably within a period of three months from the date a certified copy of this order is produced before the appellate authority. The petitioner shall produce a certified copy of this order before the appellate authority within 12th July 1996 from date. In default this order shall stand recalled and the order of the appellate authority shall stand affirmed. Let a copy of this order be given to the learned counsel for the petitioner on payment of usual charges within a week.;