S.U. Khan, J. - (1.) Heard learned Counsel for the parties. Learned Counsel for the landlord respondents, who has appeared through caveat, has advanced arguments without seeking time to file counter affidavit.
(2.) Release application under Section 21 of U.P. Act No. 13 of 1972 filed by landlord respondent against tenant petitioner, which was registered as Rent Case No. 16 of 2001 was allowed on 4.3.2004 by Prescribed Authority/A.C.M.M. IV, Kanpur Nagar. Against the said order tenant petitioner filed Rent Appeal No. 25 of 2004. The said appeal has been dismissed on 21.5.2007 by A.D.J., Court No. 1, Kanpur Nagar, hence this writ petition. The Appellate Court has mentioned in its judgment at one place as follows: "I have heard the learned Counsel for the respondents on 18.5.2007 as none appeared on behalf of the appellant and the case was fixed for judgment for today, i.e. 21.5.2007 with the observation that in the meantime, the appellant may place arguments either today or tomorrow."
(3.) If on the date fixed for hearing of the appeal, appellant does not appear, then the Court has got no jurisdiction to dismiss the appeal on merit. The Appellate Court has dismissed the appeal on merit. It could dismiss the appeal only in default. Learned Counsel for the respondents has argued that on 17.5.2007 in the presence of appellant, 18.5.2007 was fixed as the next date on the said date tenant did not appear. I am not inclined to decide this question in detail for he reason that impugned order has to be set aside on the ground that appeal has been dismissed on merit in the absence of appellant, which was not permissible. Moreover, learned Counsel for the petitioner states that as the judgment is on merit, hence his client though that restoration application would not be maintainable. Even though restoration application was quite maintainable, however permitting the petitioner to file restoration application would further delay the proceedings.;