IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.358 of 2011 Date of decision : November 3, 2011 Biasan Devi …Petitioner. Versus Baldev Singh and others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. For the Petitioner : Mr. Pawan Gautam, Advocate. For the Respondent : Mr. Inder Sharma, Advocate, for respondents No.1 & 2. Mr. Ramesh Thakur, Assistant Advocate General, for respondent No.3. Mr. Bhim Raj Sharma, Advocate, for respondents No.4 & 5. Surjit Singh, Judge(Oral) Petitioner had filed an appeal against an order of Sub Divisional Collector, before the Divisional Commissioner, which was registered as Appeal No.185 of 2005. The appeal was taken up for hearing on 14th June, 2011, when none of the parties appeared. Divisional Commissioner then passed order Annexure P-1, dismissing the appeal. Order reads that though the parties were not present, record was gone through by the Commissioner himself and he found no merit in the appeal. Consequently, it was dismissed. Whether reporters of the local papers may be allowed to see the judgment? …2… 2. Petitioner’s plea is that he had been supplied copy of another order, when he made an application for supply of the copy of the order, on coming to know that the appeal had been dismissed on 14th June, 2011 and that that copy is Annexure P-2. As per this order, Annexure P-2, appeal had been dismissed in default, without touching the merits. 3. Petitioner alleges that he moved an application, on getting copy Annexure P-2, for setting aside order of dismissal of appeal in default of appearance of the parties. That application is Annexure P-3. Divisional Commissioner refused to entertain this application, saying that the appeal had been dismissed, on merits, vide Annexure P-1. According to the petitioner, order Annexure P-1 was passed lateron, but it was ante- dated. 4. I have heard learned counsel for the petitioner as also the learned counsel representing the respondents and gone through the record. 5. Record from the Office of Divisional Commissioner has also been summoned. In the record, there is only one order, copy of which is Annexure P-1. There is no order similar to Annexure P-2. Also, Annexure P-2 is not a certified copy and, therefore, it cannot be said if this copy was supplied to the petitioner, on his making an application. However, it does appear that Annexure P- …3… 2 is also signed by the same very person, by whom order copy Annexure P-1 is signed. Furthermore, this order Annexure P-2 also bears the seal impression of the Divisional Commissioner. These facts prove that what the petitioner is saying may not be incorrect. 6. In any case, both the orders have been passed in the absence of the parties. Order Annexure P-1 also records that none of the parties was present, when the matter was called. When the order has been passed, in the absence of the parties, the same can be said to have been passed following the principles, underlying Orders 9 and 17 of the Code of Civil Procedure. No doubt, the principles, underlying Order 17 Rule 3 of the Code, authorizes the Court or the authority to decide the case on merits, in the absence of the parties, but in the present case, the order does not touch the merits of the case. Divisional Commissioner has not given any reason, in his order Annexure P-1, for dismissing the appeal. What he has said is that he has perused the record and finds that no proper evidence had been recorded, with respect to the plea of Will and so the order passed by the Sub Divisional Collector, remanding the case to the Assistant Collector, calls for no interference. Divisional Commissioner having not indicated in his order as to what was the impropriety in recording the evidence, relating to …4… Will, the order cannot be said to have been passed on merits. 7. For the foregoing reasons, present petition is allowed and the order of dismissal of appeal is set aside. Divisional Commissioner is directed to decide the appeal, on merits, after hearing the parties. Pending application also stands disposed of. November 3, 2011(sd) ( Surjit Singh ), J