1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH: NAGPUR WRIT PETITION NO. 4224/2008 [Digambar A Shinde ..vs.. Sub Divisional Officer Pusad ] ===================================== CORAM: S.R. DONGAONKAR, J. DATE:23.2.2009 . Heard Mrs. Shesh, Advocate for petitioner and Shri Narwade, Advocate for respondent no.3,4,7,11 & 12 and Shri Jaiswal, A.G.P. for respondent no. 1 & 2. None present for the other respondents though served. The petitioner is challenging the order passed by the S.D.O. Pusad dated 22.7.2005 in Revenue case No.-TEN-1/59(30)/2000-2001 of Dahagaon tahsil Umred reads thus: “Order Heard the counsel for parties. Short Argument was taken. In this matter previously two times the order was passed by the then Sub Divisional Officer and present Sub Divisional Officer, Pusad, therefore again it is not proper to pass the order of Restoration. The appellant has liberty to move the appropriate Forum. Hence application dismissed.” 2] It may be stated that the petitioner had filed appeal before the S.D.O. appeal No.1/59. On 17.1.2004 the learned S.D.O. found that the 2 parties are not interested in prosecuting the appeal, so he dismissed the same. Later on the petitioner filed an application for recalling that order and continuing with the appeal. That. application was filed on 26.2.2004. Thereafter, the learned S.D.O. passed the order dated 22.7.2005, extracted above. 3] The learned counsel for the petitioner contends that the S.D.O. in appeal under section 107 has no power to dismiss the appeal for default for appearance of the appellant. She is required to decide the appeal on merits even in his absence.. He relies on the decision of this court reported in 1971 Mh.L.J. 28 – Wasudeo ..vs.. Govindsing wherein it has been held thus: “The appellate authority, hearing an appeal against the orders of the Tahsidlar under section 107 of the Bombay Tenancy and Agricultural Lands Act, 1958 has no power to dismiss the appeal for default of appearance of the appellant, though such a power is conferred on Tahsidlar under section 102 of the Tenancy Act read with section 16 of the Mamlatdars' Courts Act and on the Maharashtra Revenue Tribunal under section 111 of the Tenancy Act read with rule 19 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Bombay Revenue Tribunal Procedure Rules, 1959. The decision has to be given on the merits of the case, whether the parties appear or not.” 3 4] Learned counsel for the respondent has supported the order of S.D.O. impugned in this petition. 5] Taking over all view of the matter and considering the fact that now parties are ready and willing to appear before the S.D.O. for hearing of the appeal and in view of the provisions of section 107 of the Bombay Tenancy & Agricultural Lands (Vidarbha Region) Tenancy Act, 1958, particularly sub section 5 reads thus: “107(5) After hearing the parties, if they appear, the Collector may confirm, vary or reverse the order appealed against or may direct such further investigation to be made, or such additional evidence to be taken as he may think necessary; or may himself take such additional evidence or may remand the case for disposal with such directions as he may think fit. The Collector shall also have power to award costs.” I feel it necessary to remit back; the matter for fresh consideration on merits by the S.D.O. Pusad. 6] In these circumstances, the impugned order is quashed and set aside. Parties are directed appear before S.D.O. Pusad on 20.4.2009 at 11.00 a.m. S.D.O. Pusad then shall hear the matter as early as possible on any later date fixed by him and shall decide the same on merits at the earliest in any case within a period of one month after hearing the parties. Petition stands disposed of in the aforesaid terms. 4 No order as to costs. JUDGE smp.