ORDER T.S. Misra, J. - This petition under Article 226 of the Constitution is directed against the order dated 9th February, 1978 passed by the Prescribed Authority. Lucknow under the U.P. Act No. 22 of 1972 and the order dated 21st November 1978 passed by the District Judge, Lucknow. 2. The Nagar Mahapalika, Lucknow filed an application against Bankey Lal Gupta opposite party No. 4 and K.K. Mehdiretta, the petitioner, for their eviction from Flat No. 9-C. Bagh Mirza, Jumma Colony, Lucknow. That application was opposed and a written statement was filed by Bankey Lal Gupta as well as the present petitioner. The Prescribed Authority held that Bankey Lal Gupta had vacated the premises and had wrongly delivered its possession to the present petitioner who was in unauthorised occupation thereof; hence an order for eviction was passed. The present petitioner filed an appeal against the said order in the court of District Judge under Section 9 of the U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972. From a perusal of the judgment of the learned District Judge, Lucknow dated 21st November, 1978, whereby the appeal was dismissed, it appears that on the last date of hearing i.e. on 21st November, 1978 the appellant, who is the present petitioner, was absent and his counsel had left an application for adjournment stating that he had pain in a part of his body. That application for adjournment was strongly opposed by the counsel for the Nagar Mahapalika and as nobody turned up on behalf of the appellant when the case was taken up, the application for adjournment was rejected and the appeal was heard. The learned District Judge considered the appeal on merits and found no force in it. The appeal was therefore, dismissed with costs and the stay order was vacated. Aggrieved, K.K. Mehdiretta filed the instant petition. The Nagar Mahapalika resisted the petition and has filed a counter-affidavit. A rejoinder-affidavit has also been filed. 3. I have heard the learned counsel for the parties and have gone through the judgments of the Prescribed Authority as also of the District Judge. In my view the order of the learned District Judge will have to be set aside and the case has to go back to him for reconsideration in accordance with law. 3. I have heard the learned counsel for the parties and have gone through the judgments of the Prescribed Authority as also of the District Judge. In my view the order of the learned District Judge will have to be set aside and the case has to go back to him for reconsideration in accordance with law. As pointed out earlier, when the appeal came up for hearing before the learned District Judge on 21st November, 1978 the appellant was absent. His counsel was also not present when the appeal was taken up for hearing. The counsel had already moved an application for adjournment of the appeal on the ground that he had pain in his body. The learned District Judge observed that the counsel for the appellant had on earlier dates as well moved applications for adjournment on the same ground and as the application was strongly opposed by the counsel for the Nagar Mahapalika and as no one was present to press the application when it was taken up, it was rejected. The learned District Judge proceeded to hear the appeal on merits. In my view, the learned District Judge had no jurisdiction in the circumstances set out here in above to decide the appeal on merits. When the appellant was absent and his counsel was also absent, the only course open to the learned District Judge was to dismiss the appeal in default. Rule 10 of the U.P. Public Premises (Eviction of Unauthorised Occupants) Rules, 1973 provides, inter alia, that the appellate officer shall, for the purposes of hearing any appeal under the aforesaid Act, have the same powers as are vested in the civil court under the Code of Civil Procedure, 1908 amongst others in respect of the following matter namely;- "the power to dismiss an application or appeal for default and to restore it for sufficient cause." Rule 17 of Order XLI of the Code of Civil Procedure provides that where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the court may make an order that the appeal may be dismissed. Explanation to sub-r (1) of Rule 17 of Order XLI, inserted by the C.P.C. (Amendment) Act, 1976 provides that nothing in sub-rule (1) of Rule 17 of Order XLI shall be construed as empowering the court to dismiss the appeal on the merits. So, in view of the aforesaid provisions contained in the Explanation to sub-rule (1) of Rule 17 of Order XLI, the appellate court below had no power to dismiss the appeal on the merits where the appellant did not appear when the appeal was called on for hearing. The learned District Judge, however, in the case in hand has, instead of dismissing the appeal for appellants default, dismissed the appeal on the merits. That order was therefore, without jurisdiction. 4. As the order of the learned District Judge is being quashed on the short point stated hereinabove, I refrain from making any comments on the merits of the pleas raised by respective parties in the case. In fact those pleas shall be considered by the appellate court below. 5. For the reasons in the foregoing, the order of the District Judge dated 21st November, 1978 passed in M.C.A. No. 120 of 1978, K.K. Mehdiretta v. Nagar Mahapalika is quashed and the District Judge is directed to decide the appeal in accordance with law. The petitioner and the opposite parties 3 and 4 are directed to appear before the District Judge, Lucknow on 1st February, 1981. The petitioner shall file a certified copy of this order before the District Judge, Opposite Party No. 3 may also file a certified copy of this order before the District Judge. In the circumstances the parties shall bear their own costs.