- (1.)THE admitted facts of the case are that the petitioner was the allottee of evacuee land comprised in Survey No.112 measuring 16 kanals 1 Maria situate in village Thandi Kassi, Tehsil Rajouri which was de -notified by the Additional Custodian, Rajouri by order dated 23 -2 -1982. This order de -notifying the land was challenged in appeal by the petitioner which the Custodian General dismissed by order dated 28 -3 -1985. A review petition of Revision filed under Section 30 -A of the Evacuee (Administration of Property) Act (for short Evacuee Act) that came to be dismissed by the Special Tribunal on 3 -2 -1989.
(2.)THE order of Tribunal has been challenged primarily on the ground that the Tribunal failed to exercise jurisdiction in as much as the failure on the part of the Custodian General to decide the appeal in accordance with the provisions of O.XLT.17, as applicable to the proceedings under the Evacuee (Administration of Property) Act have been ignored. Mr. Bakshi appearing for the Petitioner argued that the Tribunal has failed to notice the mandate of Rule 278 (Rules framed under Evacuee Act).
(3.)MR . Sheikh having tried to justify this on the ground that the appeal could be decided on merits in absence of the appellant. He further contended that the Custodian General erred in deciding the appeal on merits, the petitioner has been heard before the petition of review was dismissed.
The question involved is whether the issues raised in the appeal could be raised in Review. Before it is answered let us examine Rule 27 of the Rules framed under Evacuee Act. Rule 27 Sub Rule 4 of the Rules made under the Evacuee (Administration of Property) Act reads as under: -

"except as otherwise expressly provided in the Act or in these Rules, the procedure laid down in O.XLT of CPC, so far as applicable, apply to the hearing and the disposal of appeals under the Act."

There is an authoritative pronouncement of this Court. In Ghulam Qadir and others Vs. Sikander and others (AIR 1981 J&K 31) where Kotwal, J as his Lordship then while speaking for the Bench after examining the entire case law laid on the subject held that:

"13. a court has no power to dismiss an appeal on merits when the appellant is not present in the court either personally or through his counsel. The court can either adjourn it, or dismiss it for default of appellants appearance. Where in such circumstances the court incidentally dismiss the appeal on merits, its order shall be deemed to the one passed by it under Rule 17 (1)".
This being the law on the point involved the Tribunal erred in dismissing the revision. So the Custodian General could have dismissed the appeal in default as provided in O.XLI Rule 17 of the Code of Civil Procedure. He refused to correct the illegality in the Petition of review which was dismissed. The Special Tribunal also failed to exercise the jurisdiction vested in it under Section 30 -A of the Evacuee Act in correcting the illegality committed by the Appellate Authority under the Evacuee Act.