Roshan Sharma vs Dwarka Dass

Daya Krishan Mahajan, J.—This is a petition for revision against the order of the Appellate authority refusing to restore the appeal which had been dismissed by it for default of appearance either of the Appellant or of his counsel.

The only contention urged before me is that the Appellate authority could not dismiss the appeal in default but had to decide it on the merits irrespective of the fact whether the party or his counsel were present or not. In support of this contention the learned Counsel relies a Division Bench decision of the Rajasthan High Court (Jaipur Bench) in Om Parkash v. Bansidhar AIR 1962 Raj. 130. This decision no doubt, supports the contention but it may be noted that the provision which fell for determination before the Rajasthan High Court is somewhat different from the provision of the Punjab Act. In the Rajasthan Act, Section 12, which deals with appeals reads thus:

(1) Any person aggrieved by an order of the Controller may within fifteen days from the date of such order, appeal therefrom to such authority as the Government may from time to time appoint in that behalf.

(2) The Appellate Authority shall then send for the record of the case from the Controller and after perusing it and if necessary, after making such further enquiry as it thinks fit either itself or through the Controller, shall decide the appeal.

So far as the Punjab Act is concerned, the parallel provision is in Section 15(1)(b) and 15(3). These provisions are in the following terms:

15(1)(b): "Any person aggrieved by an order passed by the Controller may, within fifteen days from the date of such order or such longer period as the Appellate authority may allow for reasons to be recorded in writing, prefer an appeal in writing to the Appellate authority having jurisdiction. In computing the period of fifteen days the time taken to obtain a certified copy of the order appealed against shall be excluded."

15(3): "The Appellate authority shall decide the appeal after sending for the records of the case from the Controller and after giving the parties an opportunity of being heard and if necessary, after making such further inquiry as it thinks fit either personally or through the Controller."

This provision is word for word the same as in Section 12(1)(b) and 12(3) of the Madras Buildings (Lease and Rent Control) Act, XV of 1946. While interpreting this provision Rajamanner, C.J. sitting with Somasundaram, J., held In Re: K. Radhakrishnan, , that "when neither the Appellant nor his advocate appeared to show how the Rent Controller erred and it was not shown that the decision of the Rent Controller was in any way erroneous, the Appellate authority has no other course but to dismiss the appeal. The dismissal of the appeal in such circumstances is nevertheless a decision of the appeal." I am in respectful agreement with the Madras decision. The provisions of the Rajasthan Act are different from the provisions of the Punjab Act and therefore, the Rajasthan decision will have no applicability to the Punjab Statute. That being so, this petition fails and is dismissed. There will, however, be no order as to costs.

The Petitioner is granted two months'' period to vacate the property provided he has carried out the order of Shamsher Bahadur, J., dated 19th November, 1965.