JUDGMENT 1. - Heard on the restoration application.Learned Counsel submits that petition was listed at No. 46 in the cause list on 9.8.2012, but due to fault of his office clerk, it was mentioned at item no. 138 in the list prepared for the counsel. He could not appear at time of hearing and petition was decided on merit. In view of the aforesaid, writ petition may be restored to its original number and be heard again. He has given reference of various judgments of Hon'ble Apex Court and of this court to show that even a restoration application is maintainable against final judgment. 2. Learned counsel for non-petitioner opposed the prayer for restoration. It is submitted that writ petition was not dismissed in default, but has been decided on its merit thus restoration application is not maintainable. If petitioner is at all aggrieved by the judgment, he could have maintained review petition or preferred a special appeal before Division Bench. I have considered the submissions made by the parties. 3. The reason for non-appearance has been given in the application. It was due to fault of office clerk of learned counsel that writ petition was referred at item no. 138 in the list separately prepared for counsel's convenience, whereas it was listed at no. 46. The counsel could not appear at the time when case was called, accordingly restoration application has been filed. 4. The issue for my consideration is as to whether restoration application is maintainable if writ petition has been decided on its merit though in absence of counsel for petitioner. 5. Learned Counsel for petitioner has cited various judgments of Hon'ble Supreme Court and of this court. The first judgment is in the case of Sarwan Singh v. Kishan Singh reported in (2007) 13 SCC 574 . Therein, referring to Order 41, Rule 19 and Section 151 of Code of Civil Procedure, 1908, it was held that appeal dismissed on merits can be restored. I find discussion of the issue at Paras 4 & 6, which are quoted here-asunder: "4. An application in terms of Order 41, Rule 19 of the Code of Civil Procedure, 1908 (in short the 'Code') read with Section 151 of the Code was filed to restore the appeal for deciding the same on merits. I find discussion of the issue at Paras 4 & 6, which are quoted here-asunder: "4. An application in terms of Order 41, Rule 19 of the Code of Civil Procedure, 1908 (in short the 'Code') read with Section 151 of the Code was filed to restore the appeal for deciding the same on merits. It was indicated in the application for restoration as to why there was non-appearance on the date fixed. In the application it was categorically stated that the matter was listed at item No. 260 before the learned Single Judge. When the matter was called learned Counsel for the appellant was arguing another matter before a Bench of Hon'ble the Chief Justice. In the case at hand respondents were yet to put appearance. So the assisting counsel was instructed to attend the Court to note the next date. By the time the assisting counsel reached the Court, the matter had already been taken up and dismissed for want of prosecution. It is submitted that the High Court did not take note of the aforesaid factual aspects and on the contrary dismissed the application for restoration on the ground that the matter was decided on merits. 6. As rightly contended by learned Counsel for the appellant the reason for non appearance when the matter was taken up had been indicated. There is no dispute that the factual scenario as projected by the appellant was the correct one. Mere fact that the appeal was dismissed on merits could not have been a ground to refuse restoration. Accordingly, we set aside the impugned order of the High Court and direct restoration of the Second Appeal." 6. Perusal of Para 4 reveals that an application was filed in terms of Order 41, Rule 19 of the Code of Civil Procedure read with Section 151. Therein, restoration application was dismissed without considering argument and due to decision of appeal on merit. If provisions of Order 41, Rule 17 and 19 are looked into, appeal has to be heard in the presence of parties for its decision on merit but it is not a mandate for a writ petition. It is settled law that procedural law of Civil Procedure Code are not strictly applicable to the writ jurisdiction. Under the provisions of CPC, the appeal should not be decided on merit, if party is not present. It is settled law that procedural law of Civil Procedure Code are not strictly applicable to the writ jurisdiction. Under the provisions of CPC, the appeal should not be decided on merit, if party is not present. However, no such mandate exists for writ jurisdiction or under High Court Rules. In the instant case, appeal has not been dismissed on merit, but a writ petition. 7. The second judgment referred by counsel for petitioner is in the case of Ghanshyarn Dass Gupta v. Makhan Lal reported in (2012) 8 SCC 745 . Perusal of judgment shows it was in reference to Order 41, Rule 17 (1) and Explanation thereto. The Hon'ble Apex Court referring to provisions, more specifically Order 41, Rule 17 (1), which mandates that if on the day fixed for hearing, appellant does not appear, court may take an order that appeal be dismissed. The Explanation appended however prohibits court to dismiss appeal on its merit. Paras 6 to 9 of the said judgment are quoted hereunder for ready reference: "6. We are, in this case, called upon to consider whether the High Court was justified in deciding the appeal on merits in the absence of any representation on behalf of the Appellant, in view of Explanation to Order 41, Rule 17 (1) Code of Civil Procedure. The said provision is given below for easy reference: Rule 17. Dismissal of appeal for Appellant's default.- (1) 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 take an order that the appeal be dismissed. Explanation- Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits. 7. Rule 17(1) of Order 41 deals with the dismissal of appeal for Appellant's default. The above mentioned provision, even without explanation, if literally read, would clearly indicate that if the Appellant does not appear when the appeal is called for hearing, the court has to dismiss the appeal. The provision does not postulate a situation where, the appeal has to be decided on merits, because possibility of allowing of the appeal is also there, if the Appellant has a good case on merits; even if no body had appeared for the Appellant. 8. The provision does not postulate a situation where, the appeal has to be decided on merits, because possibility of allowing of the appeal is also there, if the Appellant has a good case on merits; even if no body had appeared for the Appellant. 8. Prior to 1976, conflicting views were expressed by different High Courts in the country as to the purport and meaning of Sub-rule (1) of Rule 17 Order 41 Code of Civil Procedure. Some High Courts had taken the view that it was open to the appellate court to consider the appeal on merits, even though there was no appearance on behalf of the Appellant at the time of hearing. Some High Courts had taken the view that the High Court cannot decide the matter on merits, but could only dismiss the appeal for Appellant's default. Conflicting views raised by the various High Courts gave rise to more litigation. The Legislature, therefore, in its wisdom, felt that it should clarify the position beyond doubt. Consequently, Explanation to Sub-rule (1) of Rule 17 Order 41 Code of Civil Procedure was added by Act 104 of 1976, making it explicit that nothing in Sub-rule (1) of Rule 17 Order 41 Code of Civil Procedure should be construed as empowering the appellate court to dismiss the appeal on merits where the Appellant remained absent or left un-represented on the day fixed for hearing the appeal. The reason for introduction of such an explanation is due to the fact that it gives an opportunity to the Appellant to convince the appellate court that there was sufficient cause for non-appearance. Such an opportunity is lost, if the courts decide the appeal on merits in absence of the counsel for the Appellant. 9. We may, in this connection, refer to a judgment of this Court in Abdur Rahman and Ors. v. Athifa Begum , wherein the scope of Explanation to Rule 17(1)of Order 41 Civil Procedure Code came up for consideration. While interpreting the said provision, this Court took the view that the High Court could not go into the merits of the case if there was no appearance on behalf of the Appellant. We also endorse that view." 8. Perusal of Explanation appended to Order 41, Rule 17 (1) shows a bar to decide appeal on merits in absence. While interpreting the said provision, this Court took the view that the High Court could not go into the merits of the case if there was no appearance on behalf of the Appellant. We also endorse that view." 8. Perusal of Explanation appended to Order 41, Rule 17 (1) shows a bar to decide appeal on merits in absence. The outcome of the aforesaid provision is that if appellant is not present at the time of hearing of appeal, it can be dismissed in default, but not on merit. Learned Counsel for petitioner could not show similar provision applicable to the writ jurisdiction.The next judgment referred by learned counsel for petitioner is of Larger Bench. It is in a case where there was difference of opinion between two Hon'ble Judges as to whether a restoration application can be accepted, if appeal has been decided on merit. Initially three Judges Bench was constituted however considering it to be a conflicting order, matter was referred to third Hon'ble Judge. Therein, restoration of appeal decided on merit was held to be maintainable. If Paras 4 to 6 of the said judgment are looked into, then it comes again in reference to Order 41, Rule 17 , 19 and 21 of CPC. 9. It is no doubt that under the provisions of CPC, appeal cannot be decided on merits in absence of appellant. It can however be dismissal in default.Considering aforesaid bar, the judgments referred to above were given, whereas, no such bar exists for deciding a writ petition. It is to be noted that a bar can be imposed under rules to restrain a court to act in a particular manner. However, if a bar does not exist then it cannot be taken implied for a jurisdiction which is not under CPC. It is settled law that strict rule of Civil Procedure Code are not applicable to the writ jurisdiction. 10. Learned Counsel for petitioner made a reference of judgment of this Court in the case of Ramsingh v. State of Rajasthan & Ors., reported in AIR 1969 Rajasthan 41. Therein, it was held that provision of Civil Procedure Code may not directly apply but it can apply if not in conflict with Rajasthan High Court Rules. Therein, issue was regarding application of Order 9, Rule 9 CPC. Therein, it was held that provision of Civil Procedure Code may not directly apply but it can apply if not in conflict with Rajasthan High Court Rules. Therein, issue was regarding application of Order 9, Rule 9 CPC. Perusal of Division Bench judgment reveals that Article 226 has conferred an extraordinary jurisdiction on the High Court and the jurisdiction is governed by rules, the court has framed. The provisions of Civil Procedure Code will not be attracted to special jurisdiction, more so when Section 4(1) of Civil Procedure Code provides that in absence of any provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force. Taking note of the aforesaid, it becomes clear that provisions of Civil Procedure Code cannot be applied in general but looking to the facts of that case, Order 9, Rule 9 was suitably applied. 11. Last judgment is in the case of Ghulam Qadir & Ors. v. Sikander & Ors, reported in AIR 1981 J. & K. 30. Perusal of judgment shows nothing, but interpretation of the provisions of Order 41, Rule 17 (1) and other provisions. It has already been dealt with by me while dealing with the judgment of the Hon'ble Supreme Court on the same issue. 12. Perusal of the judgments cited by learned counsel for petitioner shows that those were in reference to appeals decided on merit in absence of counsel and not for writ petition. Therein, jurisdiction of the appellate court was considered in reference of Order 41, Rule 17 (1), 19 & 21. It was specifically noted that Explanation added to Rule 17(1) bars dismissal of appeal on merit in absence of counsel. No such bar exists under High Court Rules for deciding writ petition. If counsel is not present, court is not prohibited to decide writ on its merit. In view of the above, none of the judgments referred by learned Counsel for petitioner apply so as to restore writ petition decided on its merit in absence of counsel for petitioner. The provision applicable to appeal cannot be applied to a writ petition even if provisions of Civil Procedure Code are made applicable. 13. In view of the above, none of the judgments referred by learned Counsel for petitioner apply so as to restore writ petition decided on its merit in absence of counsel for petitioner. The provision applicable to appeal cannot be applied to a writ petition even if provisions of Civil Procedure Code are made applicable. 13. The question would be as to whether general principles of Civil Procedure Code should apply to writ jurisdiction or not. It is settled law that provisions of Civil Procedure Code are not applicable in general to writ jurisdiction under Article 226 of the Constitution of India. It is by procedural law laid down by court under High Court Rules. Where procedure is not provided, provisions of Civil Procedure Code can be applied on principle and not rigidly. In the instant case, there is no bar to decide writ petition ex-parte or in absence of counsel. The rigid rule of Civil Procedure Code prohibiting disposal of appeal on merit in absence of counsel cannot be implied. If rigid rules of C.P.C., causing bar for decision of appeal on merit are applied to writ petition, it will virtually be re-writing High Court Rules. Since such rule does not exist, writ petition can be decided on merit, if counsel of either party is not present and even if provisions of Civil Procedure Code are applied, it would be for appeal and not on writ jurisdiction. 14. In view of the above, I am unable to accept argument of learned counsel for petitioner to show maintainability of restoration application in the matter where writ petition has been decided on merit. At this stage, learned Counsel for petitioner referred another judgment of Hon'ble Supreme Court in the case of Grindlays Bank v. Central Govt. Industrial Tribunal, reported in AIR 1981 SC 606 . 15. Perusal of judgment again refers for setting aside an ex parte award in reference of Rule 22 of Industrial (sic Disputes) Rules. It is necessary to indicate that Rule 22 provides setting aside of ex parte order, whereas no such provision exists under High Court Rules. Taking note of Rule 22, Hon'ble Apex Court came to the conclusion that ex-parte award can be set aside and in that eventuality, it will not amount to review. A distinction is made between review on merit and procedural review. Taking note of Rule 22, Hon'ble Apex Court came to the conclusion that ex-parte award can be set aside and in that eventuality, it will not amount to review. A distinction is made between review on merit and procedural review. The setting aside of ex-parte award is considered to be procedural review permissible under law. I find aforesaid judgment to be inapplicable to the present case. Firstly, there is no rule to provide revocation of ex-parte judgment of this court. In absence of such rule, specific rule provided in Industrial Disputes Rules cannot be imported. The judgment supra was on facts and rules applicable thus cannot be applied in general. It is no doubt a reference of principles of natural justice has been given but aforesaid principle cannot be expanded for a defaulter who was not present while case was called for hearing. The principles of natural justice envisage an opportunity of hearing which was provided to the petitioner herein. The principles of natural justice needs a fair opportunity of hearing and does not prohibit a court to decide the matter if somebody's defaults in putting appearance when case was called for hearing. 16. In view of the above, even the last judgment referred by the learned Counsel for petitioner does not provide any assistance for restoration of writ petition decided on its merit. 17. Learned Counsel has given reason for absence. It is no doubt that clerk may have defaulted in preparing list of learned counsel by showing case at item no. 138 though listed at item no. 46 in the cause list. It justifies reason for absence, but if court is not having power to restore a writ petition decided on its merit, aforesaid reasons given by counsel cannot be applied. 18. The matter was argued even on various issues in reference to merit of the case. 1 find that those issues can be raised by maintaining a review petition but not by way of restoration application. 19. Accordingly and for the reasons given above, restoration application is dismissed as is not maintainable. However, it will not preclude and affect right of petitioner to maintain review petition, if issues exist to call for review of the judgment.Misc. Restoration Application dismissed. *******