- (1.) SUDHIR Narain, J. This writ peti tion is directed against the order dated 8-1-1999 passed by respondent No. 1 rejecting the application of the petitioners to recall the order dated 3-11-1998 whereby the appeal has been dismissed in default.
(2.) THE facts of the case in brief are that landlord-respondents filed application in the year 1987 under Section 21 (l) (a) of U. P. Act No. 13 of 1972 on the allegations that they are residing in one room accom modation and there are large number of members in their family. THE Prescribed Authority found that the need of landlord is genuine and released the disputed ac commodation in their favour on 17-7-1990. THE petitioners preferred appeal in the year 1990 which remained pending for 8 years. On 30-11-1998, the date of hear ing, the appeal was dismissed in default. THE petitioners filed application to recall the said order on the ground that the ap pellant was not present in the Court and when the case was called out, the appellant had gone to toilet and in the meantime the appeal was dismissed in default. THE Court took into consideration the past conduct of the appellant and the fact that the ap peal was pending for 8 years, rejected the application for restoration. I have heard Shri S. K. Gupta, learned Counsel for the petitioner and Shri B. M. Singh, learned Counsel for con testing respondents. The learned Counsel for respondents made statement that he does not propose to file counter-affidavit and the case may be decided on merit on this stage. The learned Counsel for the petitioners contended that the petitioners had filed application along with affidavit in which no counter has been filed even then it has been rejected. The appellate authority has rejected the application taking into consideration the past con duct.
(3.) CONSIDERING the facts and cir cumstances of the case and in the interest of justice, the petitioners are entitled to have opportunity of hearing in the appeal. Accordingly, the writ petition is allowed and the order dated 8-1-1999 is hereby quashed. The restoration application is allowed subject to the payment of Rs. 5,000 as costs payable by the petitioners to the landlord-respondent Nos. 3 and 4 by 17th February, 1999. The amount shall be deposited before respondent No. 1. The appeal shall be listed for hear ing before respondent No. 1 on 22nd February, 1999. The learned Counsel for the petitioners undertakes that no ad journment will be sought. W. P. allowed. .;