JUDGMENT Heard Sri Sarvesh Agarwal, learned counsel for the petitioner and Sri Sudhir Kumar, learned Brief Holder for the State – respondent. 2. By means of this writ petition, the petitioner has sought a writ to issue order or direction in the nature of certiorari quashing the impugned notice (Annexure No. 1 to the writ petition), order dated 12.5.1991 passed by the Prescribed Authority (Annexure No. 2 to the writ petition), order dated 7.6.1995 passed by the respondent no. 1 (Annexure No. 6 to the writ petition) and the order dated 29.6.1995 passed by the respondent no. 1 (Annexure No. 7 to the writ petition). 3. According to the petitioner the brief facts in short giving rise to the writ petition are that he was not issued notice under Section 4(1) of the Public Premises Act (U.P. Act 22 of 1973). The notice was confirmed by the Prescribed Authority without hearing to the petitioner on the ground that in the other case, the order for eviction was passed against one Smt. Kalawati and on the basis of the said order, the petitioner was also ordered to be evicted. 4. Aggrieved by the eviction order, the petitioner preferred appeal which was heard in the absence of the petitioner and was dismissed on 7.6.1995. The restoration application to recall the ex parte order was also dismissed on 29.6.1995. 5. Aggrieved by all the orders, the petitioner has preferred this writ petition. 6. I have heard the learned counsel for the parties and perused the material on record. 7. It reveals from the impugned order dated 29.6.1995 that the restoration application was moved within time and the application was rejected on the ground of non-appearance of the counsels of the parties. It is well settled that due to the negligence committed on the part of the counsel, the petitioner could not be penalized and there was a sufficient reason before the court to hear the case on merit because the application was filed within the time prescribed for the restoration application. 8. The Rule 10-A confers the power on the Prescribed Authority or on an appellate authority to exercise the power of the Civil Procedure Code. 9. In view of the explanation of Order 41 Rule 17 as inserted by C.P.C. Amendment of 1973 w.e.f. 1.2.1977, the Appellate Court is not empowered to dismiss the appeal on merit. 8. The Rule 10-A confers the power on the Prescribed Authority or on an appellate authority to exercise the power of the Civil Procedure Code. 9. In view of the explanation of Order 41 Rule 17 as inserted by C.P.C. Amendment of 1973 w.e.f. 1.2.1977, the Appellate Court is not empowered to dismiss the appeal on merit. I am supported in my views by the Apex Court Judgment report in JT 2008 (11) at page 397 (The Secretary of Horticulture, Chandigarh & another Vs. Raghu Raj) wherein the counsel for the parties were absent and the appeal was decided in absence of the counsel for the parties. The facts of this case are also identical to that case. The Hon’ble Apex Court has also held that the appeal could have been dismissed in default but not on merit without giving opportunity to the appellant. 10. In view of the said mandatory provision the appellate court has fell into error in deciding the appeal on merit in the absence of the appellant. Therefore the order is set aside on this ground alone. The writ petition is liable to be allowed. 11. The writ petition is allowed. 12. The impugned order 29.6.1995 whereby the restoration/recall application for recalling the ex parte order and the order dated 7.6.1995 whereby the appeal was decided on merit in the absence of the appellant, are set aside and the appellant court is directed to decide the appeal on merit after hearing the petitioner on merit as expeditiously as possible. 13. Interim order dated 31.7.1995 stands vacated. 14. All pending applications stand disposed of accordingly.