IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1797 (M/S) of 2009 Jafar. …..…Petitioner. Versus State of Uttarakhand and another. …………Respondents. Hon’ble Alok Singh, J. Heard Mr. Rajendra Singh, learned counsel for the petitioner and Mr. R.C. Arya, learned Brief Holder for the State of Uttarakhand. With the consent of the Counsels appearing, present petition is being decided finally at the admission stage. Present writ petition is filed assailing the order dated 05.09.2009 passed by Revisional Court thereby dismissing the revision no. 224 / 2008 – 09 and order dated 05.02.2009 passed by Settlement Officer, Consolidation thereby dismissing the appeal and orders dated 26.08.2006 and 10.03.2008 passed by Consolidation Officer thereby dismissing the original applications and recall application. Brief facts of the present case are that petitioner moved three applications seeking mutation / declaration in his favour before Consolidation Officer. On the date of hearing neither petitioner nor his counsel was present. However, learned Consolidation Officer having recorded that neither petitioner nor his counsel is present, proceeded to decide the case on merit and dismissed the applications of the petitioner on merit vide order dated 2 26.08.2006. Thereafter, petitioner moved an application on 09.11.2006 for recalling the order saying that on the date fixed he was ill and he could not attend the court nor his counsel could attend the Court, his application dated 09.11.2006 was rejected by the learned Consolidation Officer vide impugned order dated 10.03.2008 saying order dated 26.08.2006 was passed on merit. Petitioner preferred appeal against the order rejecting the application for recall / restoration but appeal too was dismissed by the Appellate Court vide order dated 05.02.2009 observing that impugned order was passed on merit, hence, recall / restoration application was rightly rejected by learned Consolidation Officer. Thereafter, revision was filed by the petitioner and the same was also dismissed vide impugned order dated 05.09.2009. In view of the above facts, only one question need to be decided that if applicant / plaintiff is not present in the Court whether court should decide the case on merit or the court should dismiss the matter for want of prosecution? Applying the broad principles of Order 9 Rule 8 and Order 17 Rule 2 & 3 of Code of Civil Procedure, it can be held if on the date of hearing applicant / petitioner is not present, the Court has no option except to dismiss it for non prosecution, unless and until the case is of Rule 3 (a) of Order 17 is made out. In the present case, neither petitioner nor his counsel was present before the Court on the date fixed. Hence, learned Consolidation Officer committed grave error of 3 law by dismissing his application on merit in absence of the petitioner. As observed earlier trial court should dismiss the case in default instead of proceeding on merit. Trial Court further committed jurisdictional error by rejecting the recall / restoration application. If on the date fixed petitioner remained unrepresented then in the interest of justice his application for recall of ex parte order/restoration should ordinarily be allowed liberally. Learned Appellate Court and Revisional Court also committed grave illegality by dismissing the appeal and revision. In view of the observation made above, this court has no other option except to quash the impugned orders 05.09.2009, 05.02.2009, 26.08.2006 and 10.03.2008 and restore the case on the file of Consolidation Officer, Roorkee with a direction that Consolidation Officer, Roorkee shall hear the petitioner and decide his applications on merit without any unreasonable delay. Petitioner is directed to appear before Consolidation Officer on 24.11.2009. With this direction writ petition is allowed. No order as to costs. (Alok Singh, J.) 29.10.2009 SKS