S.U. Khan, J. - 1. Heard Sri S.C. Tripathi, learned Counsel for the petitioner and learned standing Counsel for the respondents. 2. This writ petition is directed against order passed by the authority/court below setting aside an order through which application of respondent No.2 Construction Division, Kanpur filed against the petitioner under Section 4/7 of U.P. Public Premises Eviction of unauthorised occupation Act 1972, hereinafter, referred to as 'the Act' was dismissed in default. Initially application under Section 4/7 of the Act was filed against the petitioner on 6.11.1979 copy of the application is Annexure 1 to the writ petition. The allegation against the petitioner was that he had encroached upon road side land/Patari abutting G.T. Road admeasuring 357 sq. meter. The illegal occupation was alleged since or about 04.03.1973. Damages were also claimed. 3. Petitioner claims his title over the land in dispute since the time of his ancestors. In para 4 of the writ petition it is mentioned that petitioner has been Pradhan of the village where land in dispute is situate for 20 years. It has been alleged in para 5(9) of the writ petition (added through amendment) that the petitioner has got his residential house over the disputed land. 4. The proceedings which were initiated through Annexure 1 were dismissed in default of the applicant respondent No.2 on 22.5.1986 copy of the said order is Annexure 6 to the writ petition. The said order was passed by Prescribed authority/S.D.O. Bilhaur District Kanpur Dehat on the ground that no one had appeared on behalf of the applicant. 5. It appears that proceedings were reinitiated Petitioner raised objection of jurisdiction by filing application on 26.12.1990 copy of which is Annexure 8 to the writ petitioner which was filed in case No.19/3. However, the case was again dismissed in default on 31.3.1992 copy of the said order is Annexure 9 to the writ petition. Number of case is 1/5/2 of 1991-92. 6. On 31.10.1992 the case was again dismissed in default. Thereafter, restoration application was filed for setting aside the order dated 31.10.1992 which was allowed on 11.11.1992 by Prescribed authority/Additional S.D.O. Kanpur Dehat. Thereafter, petitioner filed an application on 15.04.1993 seeking setting aside of the order dated 11.11.1992 true copy of which is Annexure 11 to the writ petition. 6. On 31.10.1992 the case was again dismissed in default. Thereafter, restoration application was filed for setting aside the order dated 31.10.1992 which was allowed on 11.11.1992 by Prescribed authority/Additional S.D.O. Kanpur Dehat. Thereafter, petitioner filed an application on 15.04.1993 seeking setting aside of the order dated 11.11.1992 true copy of which is Annexure 11 to the writ petition. The said application was rejected on 30.04.1993 by Prescribed authority/Assistant Collector, Kanpur Dehat on the ground that it had no jurisdiction. 7. Through this writ petition orders dated 11.11.1992 and 30.04.1993 have been challenged. 8. No question of transfer of proceedings is involved in this case. Learned Counsel for the petitioner has argued that under Rule 6 of Rules framed under the Act only District Judge can transfer the proceedings from one Prescribed authority to another prescribed authority. However, no such question is involved in this writ petition. 9. S.D.O. due to his utter ignorance of law has complicated an otherwise simple matter of restoration. Under somewhat similar circumstances in writ petition No. 46121 of 1999, Laxmi Shanker and others v. Collector Varanasi and others, decided on 6.7.2011 (Reported in 2011 All. CJ 1716). I have held as follows: "Actually the fault is not of the D.MJ Collector, who is Executive Officer. Executive Officers cannot be expected to perform the duties of a Doctor or Engineer as neither they are qualified nor trained in the said discipline. Similarly they can also not be expected to perform judicial duties." 10. This executive officers do not even know the fundamental principle of Procedural law that no order shall be passed without hearing the other side. First the Additional S.D.O. Bilhaur Kanpur Dehat passed the restoration order on 11.11.1992 without mentioning as to whether notice on restoration application had been served on the other side or not or whether the other side was present or not or whether notice was necessary to be sent or not. He committed a second blunder by refusing to look into the matter when application was filed by the petitioner and held through the order dated 30.04.1993 that it would be beyond jurisdiction and unjust. 11. As far as order dated 30.04.1993 is concerned it is utterly illegal and it clearly amounts to refusal to exercise jurisdiction vested in the Prescribed authority. 12. However, after such a long time it is not necessary to remand the matter. 11. As far as order dated 30.04.1993 is concerned it is utterly illegal and it clearly amounts to refusal to exercise jurisdiction vested in the Prescribed authority. 12. However, after such a long time it is not necessary to remand the matter. When earlier previous case was dismissed in default on 22.5.1986 through Annexure 6, presence of the petitioner opposite party was noticed. However, in the dismissal order of the second case dated 31.10.1992 copy of which is Annexure 9 to the writ petition and which is impugned in this writ petition it is mentioned that both the parties were absent. Insuch a situation even under C.P.C. it was not essential to hear the defendant. Order 9 Rule 3 C.P.C. provides that where neither party appears, the Court may dismiss the suit, however in such situation it is not necessary to-issue notice and hear the defendant in the restoration ' application which may subsequently be filed by the plaintiff under Order 9 Rule 4 C.P.C. vide Longlife Carpet Industries Gorakhpur and others v. Smt. Kesar Jahan, AIR 1988 ALL 55 D.B.). Accordingly, even though while passing order of restoration dated 11.11.1992 petitioner was not heard, still, the said order can not be set aside. The reason is that in case of restoration filed for setting aside an order of dismissal in default of both the parties it is not utmost essential to issue notice and hear the defendant/opposite party. However, after restoration, notice of the date to the defendant/opposite party is essential. 13. The contention that after dismissal of the first application on 22.5.1986 Annexure 6 to the writ petition fresh application could not be filed can not be accepted. Under order 9 Rule 9 C.P.C. where a suit is dismissed in default of plaintiff but in the presence of defendant plaintiff is precluded from bringing a fresh suit in respect of same cause of action. However, the Supreme Court has held that the said principle does not apply to other proceedings e.g. proceedings under Consumer Protection Act vide New India Assurance Company Ltd. v. R. Srinivasa, AIR 2000 S.C. 941 =2000 All. CJ 1457) unless it amounts to harassment. 14. Accordingly, impugned order is upheld even though on different grounds i.e. that it was not necessary to issue notice or hear the petitioner as on 31.10.1992 the main application had been dismissed in absence of both the parties. 15. CJ 1457) unless it amounts to harassment. 14. Accordingly, impugned order is upheld even though on different grounds i.e. that it was not necessary to issue notice or hear the petitioner as on 31.10.1992 the main application had been dismissed in absence of both the parties. 15. Writ petition is dismissed. Both the parties are directed to appear before the Prescribed authority on 25.08.2011. The prescribed authority shall decide the matter very expeditiously.