- (1.) THIS petition has been filed for setting aside the order dated 30.5.2007 passed in S.A.R. Appeal No. 53 R -15/03 -04 by the Deputy Commissioner, Ranchi and further a direction to the Deputy Commissioner, Ranchi to consider and dispose of the said appeal within stipulated period.
(2.) IN substance, an appeal was preferred by the petitioner before the Deputy Commissioner and during the course of hearing, the petitioner did not appear before the court and the learned Deputy Commissioner observed on 30th May, 2007 that the appellant is not present and the respondent is present in the case. The absence of the petitioner shows that he is not interested with the appeal and the respondents contended that the appeal may be dismissed and the appeal was dismissed by the Deputy Commissioner, Ranchi. Being aggrieved by the said order, the petitioner preferred this Writ Petition. Learned counsel appearing for the State contended that the petition has been dismissed on the ground of absence of the petitioner and the petition is not maintainable in view of the provisions contained in Section 265(3) which specifically provides that, until rules are made under sub -section (1) and subject to those rules when made and to the other provisions of Civil Procedure Code shall also apply to all suits, appeals and proceedings before the Deputy Commissioner under this Act and, to all appeal from the decisions passed in such suits or proceedings. By virtue of Order 9 rule 9 of the Civil Procedure Code, the provisions of restoration of suit dismissed in default, has been provided. Learned counsel for the State further contended that the present appeal has arisen against the order passed by the Scheduled Area Regulation Officer under Section 71A of Chotanagpur Tenancy Act. It is further contended that the State Government has not framed any rules under Section 265(3) of the said Act. The provisions of the C.P.C. are applicable in view of the Section 265(3) of the Chotanagpur Tenancy Act. The learned counsel for the petitioner could not demonstrate that any rule has been framed by the State Government and the provisions of the Civil Procedure Code have been excluded. In absence of the rules, the proceeding of suits and appeals must be governed by the provision contained in Civil Procedure Code, as is evident from Section 265 of the Act If the appeal is dismissed in default, the restoration application is definitely maintainable before the Deputy Commissioner, who had disposed of the said appeal in absence of the appellant. Now it is to be determined whether the order passed by the Deputy Commissioner is an ex parte order or it is an order on merit.
(3.) FROM perusal of the order, it revealed that the order has been passed in absence of the petitioner/appellant and it has not been passed on merit. It cannot be concluded that this order has been passed on merit and this will be treated to be an order of dismissal in default of the parties.;