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2016 DIGILAW 425 (UTT)

Shibbu Alias Shiv Prasad v. Geetanjali Chaudhary

2016-08-03

U.C.DHYANI

body2016
JUDGMENT : U.C. Dhyani, J. By means of present writ petition, the petitioner seeks following relief, among others: “(i) To set-aside the judgment and order dated 17.11.2015 passed by learned 3rd Additional District Judge Dehradun in Rent Control Appeal no. 57 of 2013 “Shri Shibbu @ Shiv Prasad vs. Smt. Geetanjali Chaudhary” and judgment and order dated 05.4.2013 passed by learned Civil Judge (S.D.) Dehradun/prescribed authority in P.A. Case no. 17/2010 “Geetanjali Chaudhary vs. Bishna devi and others” and further to dismiss the release application filed by the respondent.” 2. At the very outset, it will be useful to reproduce Order 41 Rule 17 CPC, as follows: “17. Dismissal of appeal for appellant’s default- (1) Where the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. Hearing appeal ex parte- (2) Where the appellant appears and the respondent does not appear the appeal shall be heard ex parte.” 3. Landlord/respondent filed an application under section 21 (1) (a) of U.P. Act no. 13 of 1972 for eviction of the tenant/petitioner from a house. 4. The same was allowed by learned Prescribed Authority vide order dated 05.4.2013. Aggrieved against the same, Rent Control Appeal under section 22 of U.P. Act no. 13 of 1972 was filed by the tenant. On 17.11.2015, although learned counsel for the respondent was present, but, none appeared for the appellant. 5. It is the submission of learned counsel for the petitioner that neither appellant nor his counsel was present on 17.11.2015, when learned Court below proceeded to decide the Rent Control Appeal on merits. It is the submission of learned counsel for the petitioner that the same is not permissible under Order 41 Rule 17 CPC. 6. Section 34 of The Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 provides that the Appellate Authority, for the purposes of any appeal under this Act, shall have the same powers as are vested in the Civil Court under the Code of Civil Procedure. Under the Rule Making Powers, The Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules have been framed. Rule 22 deals with the power to dismiss an application, appeal or revision for default and to restore it for sufficient cause. 7. Under the Rule Making Powers, The Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules have been framed. Rule 22 deals with the power to dismiss an application, appeal or revision for default and to restore it for sufficient cause. 7. It therefore, follows that Lower Appellate Court while hearing Rent Control Appeal ought not to have decided the appeal on merits, in the absence of the appellant. Order 41 Rule 17 CPC only gives a discretionary power to the Appellate Court to dismiss the appeal, when the appellant does not appear when the appeal is called on for hearing. 8. This Court has, therefore, no option, but to set aside the order dated 17.11.2015, which has been passed on merits in the absence of the appellant. 9. Writ petition is, accordingly, allowed at the threshold. Learned Lower Appellate Court is directed to proceed further with RCA in accordance with law. 10. Since present writ petition has been decided without notice to the respondent, therefore, liberty is granted to her to move for recall of this order, if she feels aggrieved against the same.