- (1.) In response to notice under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960, the Petitioner filed an objection and opposed the notice. The Prescribed Authority framed the necessary issues, and after the evidence had begun, the Petitioner absented herself. Consequently, on 10-12-1975, the Prescribed Authority considered the objection on merits and passed an order declaring 9.92 acres of irrigated land as surplus with the Petitioner. The Petitioner moved an application for setting aside the order. On 24-3-1975, the Prescribed Authority rejected the application on the ground that there was no sufficient cause for non-appearance. Aggrieved by this order, the Petitioner appealed. The learned III Additional District Judge, Basti, held that no appeal lay, as the order fell neither under Section 11(2) nor under Section 12 of the Act and dismissed the appeal. Hence this petition under Article 226 of the Constitution. Section 37 of the Act provides: 37. Any officer or authority holding an enquiry or hearing an objection under this Act, shall, in so far as it may be applicable, have all the powers and privileges of a civil court, and follow the procedure laid down in the Code of Civil Procedure, 1908, for the trial and disposal of suits relating to immovable property.
(2.) By virtue of this section the provisions of Order XVII Rule 2 Code of Civil Procedure are applicable to the hearing and disposal of an objection under Section 12 of the Act. Order XVII Rule 2 reads thus: 2. Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit. This rule vests the court with jurisdiction either to proceed under Order IX or to make such order as it thinks fit. The words "make such order as it thinks fit" enable the Court to decide a suit on merits, if the Defendant fails to appear after the evidence has begun. In the present case, the evidence had begun when the Petitioner absented herself. The Prescribed Authority considered and decided the objection on the available material, therefore, the order dated 10-12-1975 of the Prescribed Authority was a decision on merits under Section 12(1) of the Act, against which an appeal lay under Section 13 of the Act. No application under Order IX Rule 13 to set aside the order could lie. Accordingly, the application filed by the Petitioner was clearly incompetent. In this view, the order of the authorities below dismissing the application is essentially a good order, although the way they have approached it may not be commendable in law. The Petitioner's remedy lay in filing an appeal under Section 13 of the Act.
(3.) The result, therefore, is that this petition fails. It is dismissed accordingly. It shall, however, be open to the Petitioner to pursue her remedy by way of an appeal under Section 13 of the Act, if so advised. There will be no order as to costs.;