IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION No. 430 of 2008 (M/S) Jagdish Raj S/o Sri Bhagat Ram, R/o Village Dhoradam Nazimabad, Tehsil Kichha, District Udham Singh Nagar. ……Petitioner. Versus State of Uttarakhand and three others. ..Respondents. Mr. S.S. Yadav, Advocate for the petitioner. Mr. K.P. Upadhyay, Addl. C.S.C. for the respondent Nos. 1 to 3. Date: - 29-03-2010 Hon’ble B.S. Verma J. Heard learned counsel for the parties and perused the record. By means of this writ petition, the petitioner has sought a writ in the nature of certiorari for quashing the order dated 18-01-2008 (Annexure No.3 to the writ petition) and order dated 29-08-2007 (Annexure No.2 to the writ petition) whereby the agreement of the petitioner was cancelled by the District Supply Officer, Udham Singh Nagar. The appeal preferred against the order of the District Supply Officer-respondent No.2 that was also dismissed by the learned Commissioner, Kumaon Division on 18-01-2008. Learned counsel for the petitioner has contended that on the date of hearing, the appellant-petitioner was not present in the Court, therefore, the only course open to the learned Commissioner, Kumaon Division was to dismiss the appeal in default as per provisions of Order 41 Rule 17 2 Explanation of the Code of Civil Procedure and the appellate authority was not empowered to dismiss the appeal on merits. At the outset it may be mention that although power is being exercised by the learned Commissioner but so far procedure part is concern, the provision of C.P.C. would be applicable. Since no separate procedure has been provided in Government Order for deciding the appeal. It is pertinent to mention here that in the instant case since the petitioner (appellant before the learned Commissioner) was not represented before the appellate court on the date of hearing therefore, the provisions of Order 41 Rule 17 (1) of the Code of Civil Procedure were applicable. The only prayer course open to the appellate court was to dismiss the appeal for default of the appellant. Relevant extract of Order 41 Rule 17 (1) of the C.P.C. reads as under:- “17. Dismissal of appeal for appellant’s default- (1) Where on the day fixed, or any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. Explanation- Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits” I am fortified in my view by the Apex Court verdict in the case of Abdur Rahman and others Vs. Athifa Begum and others [(1996) 6 Supreme Court Cases, page 62] wherein while dealing with the provisions of Order 41 Rule 17(1) Explanation of the C.P.C., it has been observed in that case that “Here, the High Court has recorded that all 3 relevant aspects of the matter have been taken into account in order to holder that there was no available ground for interference with the decision of the trial court. This was an exercise against which the High Court should have been well advised not to indulge in at the stage or (sic of) Order 41 Rule 17 C.P.C. The Explanation to Order 41 Rule 17(1) CPC says that nothing in this sub-rule shall be construed as empowering the court to dismiss the appeal on the merits. The High Court having transgressed that limit, we have therefore no option but to allow the appeal, set aside the impugned and order of the High Court and put the matter back to its file for fresh disposal in accordance with law.” In view of the discussion above, I hold that the learned Commissioner, Kumaon Division, Nainital was not justified in deciding the appeal No. 57/2006-2007, Jagdish Raj Vs. State and another on merits in the absence of the appellant-petitioner. The writ petition deserves to be allowed on this ground alone. The writ petition is allowed. The impugned orders dated 18-01-2008 and 29-08-2007 are hereby set aside. The matter is remanded to the Commissioner, Kumaon Division, Nainital for deciding the appeal afresh on merits expeditiously as far as possible, after hearing the parties in accordance with law. Petitioner is directed to appear before the learned Commissioner, Kumaon Division, Nainital on 13-04-2010. All pending applications stand disposed of accordingly. (B.S. Verma, J.) 29-03-2010 MK