J.P.Chaturvedi, J. - (1.) THIS is a revision against the order of the learned Second Temporary Civil and Sessions Judge, Saharanpur, dated 22nd March, 1973, dismissing the appeal of the applicant in default.
(2.) THE facts giving rise to this revision are that one Nandu moved an application for proceedings under Section 145, Code of Criminal Procedure in respect of plot Mo. 123 situate in village Mirzapur Garant, Police Station Beharigarh, district Saharanpur against Ram Swarup and others. The property was ordered to be released by S.D.M., Deoband, where the proceedings were pending on 26 -12 -1969. Possession was delivered to applicant Nandu on 26 - -5 - -1970. The allegations were that the applicants Ram Swamp, Ratan, Dharampal and Ghasi took unauthorised possession over the plot and threw away the articles of Nandu disregarding the order of the Court and thereby committed an offence under Section 188, IPC. The applicants filed objections. The trial Court was of the view that an offence had been committed under Section 188, IPC and it ordered that a complaint be made for prosecution of the applicants under Section 188, IPC. Aggrieved against this order, Ram Swarup and others filed an appeal in the Court of learned Sessions Judge, Saharanpur who transferred it to the Court of Second Temporary Civil and Sessions Judge, Saharanpur for disposal. On 22nd of March, 1973, the learned Sessions Judge passed the following order : Case called out at 11.15. The Appellant and his counsel absent. State by Sri Jagdish Kumar. The Appellant is absent. I have perused the record and do not find any thing to differ from the finding of the learned Magistrate Appeal is hereby dismissed in default. In the Code of Criminal Procedure, there is no provision under which the appeal could be dismissed for default of the Appellant. The lower appellate Court could only dispose of the appeal on merits after considering the evidence before it. The lower Court has not done so. He has not disposed of the case after assessing the evidence on record and it has dismissed the appeal only for default of the applicants from appearance. The order is patently illegal. The revision is, therefore, allowed and the order of the lower Court dismissing the appeal for default of the applicant is set aside. The lower appellate Court is directed to dispose of the appeal after hearing the applicant. In case the applicant failed to appear after due notice, the lower appellate Court shall dispose of the appeal on merits.;