JUDGMENT V. K. Mehrotra, J,—Petitioner C. Baljee was a lessee in Grand Hotel, Simla, initially for a period of one year with effect from April 15, 1965. The lease was renewable from time to time. There was some dispute between the parties in respect of the right of the petitioner to continue in possession of the leased premises. We are really not concerned with the facts in this aspect for disposal of the present writ petition. Suffice it to say that the lessee was evicted sometimes in the year 1976. 2. The Estate Officer (respondent No. 2) after notice to the petitioner under section 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, (for short, "the Act") ultimately determined a sum of Rs 1,31,416 as payable by the petitioner as damages under various heads. This w s by an order o\ December 10, 1981 (Annexure-PG). Section 9 of the Act provides for an appeal against an order passed by the Estate Officer, it lies to an appellate Officer, who, in terms of that section, shall be the District Judge* of the district or such other judicial officer of not less than ten years standing as the District Judge may designate in this behalf. The appeal which the petitioner filed was dismissed in default by the District Judge, Simla, on October 25, 1982. The petitioner made an application for recalling that order. That application was also dismissed on July 20, 1983. Copies of these orders have been appended as Annexures PH and PI to the petition. The present writ petition was instituted in this Court on August 2, 198*. In it, the petitioner has assailed the order of the Estate Officer dated December 10, 1981, demanding a sum of Rs, 1,31,416 as damages on its merits on various grounds He has also assailed the order of the District Judge dismissing the appeal in default as well as the order rejecting the prayer for setting aside the order of dismissal of the appeal, by the District Judge. Since we are not inclined to go into the legality and propriety of the order of the Estate Officer in the present writ petition, we did not permit the learned Counsel for the petitioner to make submissions on the merits of the assessment and demand of damages from the petitioner. Since we are not inclined to go into the legality and propriety of the order of the Estate Officer in the present writ petition, we did not permit the learned Counsel for the petitioner to make submissions on the merits of the assessment and demand of damages from the petitioner. We only permitted him to make his submission in respect of the order dismissing the appeal in default and the one by which the prayer to recall that order was rejected by the District Judge. 3. The first submission, which Shri Chhabil Dass made on behalf of the petitioner, was that as an appellate officer the District Judge was acting as a persona designata. He could not dismiss the appeal in default and was bound to go into the merits thereof on the material on record even though the appellant or his counsel may not have been present when the appeal was called on for hearing. Shri Chhabil Dass urged, relying upon the decision of a Division Bench of the Gujarat High Court in Shah Hiralal Virchand and another v.Patel Vithalbhai Vaghjibhai and others, AIR 1961 Guj 189 that, inasmuch as the Code of Civil Procedure did not apply to proceedings under the Act, the District Judge could not dismiss the appeal in default. The Gujarat decision was in respect of the provisions of the Bombay Public Trusts Act, 1950. Section 70 thereof contains the provision for appeal to the Charity Commissioner. Section 73, according to the Bench which decided the case, contemplated, by implication, that the whole of the C. P. C. was not applicable to proceedings before the officers under the Act and it applied to certain specific matters That being the position, the view taken was that Order XLI Rule 17, C P. C enabling the appellate authority to dismiss an appeal in default was not applicable in proceedings before the Charity Commissioner. 4. 4. Support for the submission that the District Judge, while acting as the appellate officer under section 9, was a persona designata was sought by Shri Chhabil Dass from some decisions In Harigovind Sharma v. Divisional Engineer Railway Administration South Eastern Railway, Bilaspur and another, AIR 1966 MP 7, a single Judge of the Madhya Pradesh High Court had ruled that the District Judge acted as a persona designata while deciding an appeal under section 9 (4) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958. We find, however, that later in Ayodhya Prasad v. Union of India and another, AIR 1983 MP 39, another single Judge of the same High Court, while dealing with an order of the District Judge under section 9 of the 1971 Act, took the view that the Court of the District Judge, being a court subordinate to the High Court, the order passed by him was amenable to revision under section 115, C. P. C. In regard to the decision in Harigovind the learned Judge observed (in paragraph 4) that: " a single Bench of this Court in Harigovind v. South Eastern Railway, AIR 1966 P 7, had held that District Judge acts as persona designata But since then much water has flown on this question and the correctness of this* decision is quite doubtful " 5. In Nanak Chand Lachhman Dass v. Estate Officer-cum-Executive Engineer, Madhopur and another, AIR 1969 P & H 304, a single Judge of the Punjab and Haryana High Court was dealing with the provisions of the 1958 Act. The Additional District Judge, Gurdaspur, acting as Appellate Officer under section 9 of that Act, had made a reference under section 113, C. P, C. for determination of the question whether section 5 of the Act was void or not. What was observed by the learned single Judge was that: " Under section 9 of the Act the Appellate Officer is not a Court but is a persona designata as has been held in a Full Bench judgment of this Court in M/s. Pitmans Shorthand Academy v. M/s. B. Lila Ram and Sons etc., ILR (1949) EP 606 : AIR 1950 EP 181 (FB). The reference under section 113 of the Code of Civil Procedure can only be made by a Court and, therefore, this reference by him is not competent." 6. The reference under section 113 of the Code of Civil Procedure can only be made by a Court and, therefore, this reference by him is not competent." 6. The Full Bench in M/s. Pitmans Shorthand, AIR 1950 East Punj 181, which was dealing with the question whether the order of the District Judge, acting as the Appellate Authority under section 15 of the Punjab Urban Rent Restriction Act, 1947, was subject to the revisional jurisdiction of the High Court under section 115 C. P. C. or not, took the view that the District Judge acted as & persona designata. Speaking through Khosla, J. the Bench said that many of the attributes of the Court of law were not to be found in the Controller or the Appellate Authority under the Act and the intention of the legislature was to appoint persona designata to perform specific duties and further that these persons should not be governed under the ordinary rule of procedure nor would their decision be subject to appeal or revision in accordance with law. As such, the appellate authority was not a court of law subordinate to the High Court within the meaning of section 115, C. P. C. 7. In N. P. Berry v Delhi Transport Corporation and another, ILR (1979) I Del 159, a Division Bench of the Delhi High Court, speaking through Deshpande C J, opined that the District Judge, acting as the appellate officer under section 9, did not Act as a Court. As such, an order passed by him could not be questioned in a petition under Article 227 of the Constitution. 8. In Central Talkies Ltd., Kanpur v. Dwarka Prasad, AIR 1961 SC 606, the question which was under consideration was whether the District Magistrate, mentioned in section 3 of the U. P. (Temporary) Control of Rent and Eviction Act (3 of 1947) was a persona designata. The Supreme Court answered the question in the negative. It said (in paragraph 9) that: "the argument that the District Magistrate was a persona designate cannot be accepted. A persona designata is "a person who is pointed out or described as an individual, as opposed to a person ascertained as a member of a class, or as filling a particular character. "(See Osborns Concise Law Dictionary, 4th Edn., p. 253). A persona designata is "a person who is pointed out or described as an individual, as opposed to a person ascertained as a member of a class, or as filling a particular character. "(See Osborns Concise Law Dictionary, 4th Edn., p. 253). In the words of Schwabe, C. J in Parthasardhi Naidu v. Koteswara Rao, ILR 47 Mad 369 i AIR 1924 Mad 5ol (FB), persona designata are "persons selected to act in their private capacity and not in their capacity as Judges". The same consideration applies also to a well-known officer like the District Magistrate named by virtue of his office, and whose powers the Additional District Magistrate can also exercise and who can create other officers equal to himself for the purposes of the Eviction Act .. 9. We feel that the principle aforesaid, accepted by the Supreme Court, applies with equal vigour to the case of a District Judge while acting as an appellate officer under section 9. We may read section 9 (I) at this stage. "9. Appeals.—(I) An appeal shall lie from every order of the estate officer made in respect of any public premises under section 5 or section 5-B or section 7 to an appellate officer who shall be the District Judge of the district in which the public premises are situate or such other judicial officer in that district of not less than tea years standing as the District Judge may designate in this behalf”. 10. The District Judge has been ascertained as a member of a class filling a particular character. He can create other officers equal to himself for the purpose of section 9. He is not a persona designata. 11. Coming now to the question whether the District Judge could have dismissed an appeal in default. We find that section 9 (1) or, for that matter, any other provision in the Act, does not put a fetter on the powers of the appellate officer in regard to the decision which be can take in an appeal filed under section 9 (1). Section 9 (4) says that appeal shall be disposed of by the appellate officer as expeditiously as possible. Section 10 gives finality to an order passed by the appellate officer. Section 9 (4) says that appeal shall be disposed of by the appellate officer as expeditiously as possible. Section 10 gives finality to an order passed by the appellate officer. Rule 9 of the Public Premises (Eviction of Unauthorised Occupants) Rules, 1971, framed in exercise of the powers under section 18 of the Act, says that an appeal preferred under section 9 shall be in writing, setting forth concisely the grounds of objection to the order appealed against, and shall be accompanied by a copy of the order. And, that: "On receipt of the appeal and after calling for and perusing the record ef the proceedings before the estate officer the appellate officer shall appoint a time and place for the hearing of the appeal and shall give notice thereof to the estate officer against whose orders the appeal is preferred, to the appellant and to the head of the department or authority in administrative control of the premises." 12. It is implicit in these provisions that the appellate officer is to take a decision in the matter on the basis of the material on record after giving notice to the appellant and to the officer against whose order the appeal is preferred as well as to the head of the department or authority in administrative control of the premises. If, after such notice has been duly given by the appellate officer, either the appellant or the head of the department or authority in administrative control of the premises in question, does not choose to appear before the appellate officer there is no obligation cast upon the said officer to go into the merits of the matter on his own, unless he chooses to do so. Where, the appellant does not put forward his submissions before the appellate officer, no obligation can be cast upon the officer to go into the merits of the appeal on his own (See Thakur Sukhpal Singh v Thakur Kalyan Singh and another, AIR 1963 SC 146, Ex-fade, acceptance of the principle, in the absence of any indication in the Act or the Rules to that effect, that the appellate officer must decide the. appeal on merits irrespective of the absence of the appellant or his counsel is fraught with dangerous portent for the appellant. appeal on merits irrespective of the absence of the appellant or his counsel is fraught with dangerous portent for the appellant. It is bound to prejudice him in case the appeal were to be heard afresh after setting aside the order passed by the appellate officer on merits without hearing him in case the appellant was to be beard again on the merits of his case. We are in respectful agreement with the observations of a Division Bench of the Delhi High Court in Dr K. R K. Talwar v. Union of India and another, AIR 1977 Del 189, wherein, speaking through Deshpande, J,, as he then was, it was said (at page 192) that ; " Moreover, the appellant whose appeal is dismissed for default has the legal remedy of getting the appeal restored so that it may be heard on merits. Should the appeal be decided on merits in the absence of the appellant, the question of the appeal being restored for being heard and decided on merits will not arise. If the appellate court has decided the appeal on merits without the appellant, then it will considerably prejudice the appellant, if he wants the same to be heard again in his presence and surely the appeal cannot be decided twice on merits. We are, therefore, of the view that section 9 did not require the appellate officer to decide the appeal on merits and the appellate officer was fully competent to dismiss it for default...... .. " 13. We hold that it was not incumbent upon the appellate officer to have considered the appeal and to have decided it on merits even in the absence of the petitioner-appellant or his Counsel and that it was not open to him to have dismissed it for default. 14. The question then is whether the order of the District Judge dated July 20, 1983, (Annexure-PI) refusing to recall* his earlier order dated October 25, 1982, dismissing the appeal in default and rejecting the application for restoration made on behalf of the petitioner on October 26, 1982, deserves interference by this Court in its extra-ordinary jurisdiction under Article 226 of the Constitution. Normally, an order of this nature, which is discretionary in nature, does not merit interference, particularly under Article 226 of the Constitution. Normally, an order of this nature, which is discretionary in nature, does not merit interference, particularly under Article 226 of the Constitution. But, discretionary order under challenge should be found to have been passed on the basis of judicial exercise of that discretion. If it is found that it is not so, the Court may, in appropriate cases, interfere with it. 15. In the present case the learned District Judge bad, while passing the order dismissing the appeal for default, said 3 "25-10-1982 Present. None for the appellant. Called twice, D. A. for the respondent. The appeal is dismissed in default and be consigned to R. R." 16. In the application that was made by the petitioner for recalling the order aforesaid it was said that the Counsel for the appellant had gone to the other block of the Court building to enquire about the case and when she came back, she was informed that the case was called and dismissed. Also, that the applicant had engaged Shri K. D. Sood as senior Counsel who had instructed Miss Asha Pandit to argue his appeal in the Court of the District Judge and further that Miss Asha Pandit was ready to argue the case when the appeal was dismissed for default. It was said that the appellant did not attend the Court that day as he was not in a position to do so and had been told by his Counsel that his appearance was not necessary because only an affidavit was to be filed in the case on that date. 17. The averments so made were supported by an affidavit of the petitioner as also an affidavit of the Counsel, Miss Asha Pandit. The learned District Judge, as is clear from his order of July 20, 1983, (Annexure-Pl) considered the evidence led before him and came to the conclusion that the version put forward by Miss Asha Pandit for her absence when the appeal was called for hearing was not acceptable. In fact, according to the learned District Judge, though only the Vakalatnama dated December 26, 1981, of Miss Asha Pandit was there on the record on behalf of the appellant, Shri K. D. Sood had appeared twice and one Shri M. M. Vaid had been appearing on behalf of the appellant on each and every hearing in the appeal. In fact, according to the learned District Judge, though only the Vakalatnama dated December 26, 1981, of Miss Asha Pandit was there on the record on behalf of the appellant, Shri K. D. Sood had appeared twice and one Shri M. M. Vaid had been appearing on behalf of the appellant on each and every hearing in the appeal. Miss Asha Pandit had not appeared on his behalf even once. We are not inclined to go into the correctness of these findings though Shri Chhabil Dass invited us to do so with some persistence* We accept these findings without any serious probe. 18. The question is whether the petition deserves to be dismissed on the view aforesaid. We feel, that it does not. Our reason is this i The learned District Judge has not referred to any lapse on the part of the petitioner (appellant before him) at all in the matter. Admittedly, there were Counsel, appearing for the petitioner, in the appeal from time to time. There is nothing in the order of the learned District Judge suggesting thai the petitioner was required to appear before him in connection with any steps to be taken in the case. The learned Judge has not disbelieved the petitioners version that he was told by his Counsel not to come to Court that day since only an affidavit had to be filed on his behalf which the Counsel would do. The petitioner, in this circumstances, could legitimately expect the learned District Judge to have gone into the aspect whether any lapse could be attributed to him for non-appearance when the appeal was called on for hearing on October 25, 1982. 19. In Rafiq and another v. Munshilal and another, AIR 1981 SC 1400, the Supreme Court has emphasised that after engaging a lawyer, a party may remain confident that the lawyer would look after his interest. When, therefore, the party had done everything in his power to effectively participate in the appeal or the proceedings he could assume that his lawyer would appear in the matter when it is taken up. Further, that a party who had done everything in his power should not suffer because of the default of his advocate. This aspect of the matter assumes greater importance in proceed ings where parties generally appear through their advocates. 20. Further, that a party who had done everything in his power should not suffer because of the default of his advocate. This aspect of the matter assumes greater importance in proceed ings where parties generally appear through their advocates. 20. In the present case the learned District Judge has not gone into this aspect which, according to the Supreme Court, is of utmost importance. Unlike the case of Dr. K. R. K. Talwar before the Delhi High Court (AIR 1977 Del 189), in which Dr. Talwar was himself appearing in the proceedings before the appellate officer, the present petitioner had engaged Counsel to represent him in the appeal filed by him against the order of the Estate Officer dated December IO? 1981 be order of the Estate Officer saddles the petitioner with huge financial liability. May be, on facts, the petitioner is not liable for it in its entirety. May be, he is. The appellate officer is yet to 0 into the merits of the case. The effect of the order dismissing the appeal in default is, undoubtedly, highly prejudicial to the petitioner. The learned District Judge has not found any default on the part of the petitioner himself while considering the question whether the order passed by him on October 2t9 1982, should be recalled or not. In these peculiar circumstances we feel that the learned District Judge should be asked to go into the question whether the order dismissing *he appeal of the petitioner in default deserved to be recalled and the appeal heard on merits, afresh. 21. We allow the writ petition only to the extent that the order of the learned District Judge dated July 20, 1983 (Annexure-PI) dismissing the application of the petitioner for recalling the order of dismissal of his appeal for default and restoring it for healing afresh on merits is quashed. The learned District Judge shall decide the application of the petitioner dated October 26, 1982 afresh, on the material already on the record of the case, after notice to the parties. 22. Both the parties shall bear their own costs of this petition. Writ petition allowed. -