MUNICIPAL COMMITTEE Vs. COLLECTOR SUB-DIVISIONAL OFFICER-CIVIL

JUDGEMENT

(1.) THE present petition has been filed against the order dated June 11, 1980, whereby the application filed by the petitioner-Committee for setting aside the order of dismissal in default of the eviction application under the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973, hereinafter called the 'act', has been dismissed.

(2.) THE petitioner-Committee moved an application before the Collector under the Act, for eviction of respondent No. 2 as he was in unauthorised occupation of some property belonging to it. Pursuant to the notice under Section 4 of the Act, respondent No. 2 appeared before the Collector and opposed the application for eviction, but the Collector, vide order dated July 22, 1975, dismissed the application in default. Against the order aforesaid, the petitioner filed an appeal before the Commissioner, Ferozepur Division, Ferozepur, who accepted the same vide his order dated January 18, 1977 and remanded the case to the Collector for a fresh decision on merits. Against this order of remand, respondent No. 2 filed Civil Writ Petition No. 1956 of 1977 in this Court averring that an appeal before the Commissioner was not competent. This petition was allowed and even the Collector's order dated July 22, 1975 was quashed on the ground that such an order was not envisaged under the Act. The case was, thereafter, remitted to the Collector once again and was again dismissed in default vide order dated July 27, 1978 and the application for restoration of this application has been dismissed vide the impugned order dated June 11, 1980. The Collector held that the application for restoration was filed by a person who had not been duly authorised to do so and that the Committee should have filed an appeal against the order of dismissal in default or a fresh application.

(3.) I have heard the learned counsel for the petitioner and find that the reasoning adopted by the Collector is not warranted by the facts and law on this point. At the time of motion hearing of the case, the counsel for the petitioner cited Ramesh Kumar v. Capt. B. S. Sandhu, (1978)80 P. L. R. 210 to the effect that for filing an application for restoration of the case, no fresh power of attorney was needed. This stand was apparently not contradicted and the case was ultimately admitted in the presence of counsel for respondent No. 2. The presumption can therefore be validly raised that Shri Parkash Chand Aggarwal, Advocate , who had filed the application for restoration was already holding a power of attorney from the petitioner in the proceedings pending before the Collector. The second point urged too, has no substance. Although, it may be true that an appeal can be filed against an order of dismissal in default, but an application under Order 9 Rule 9 of the Code of Civil Procedure, for setting aside such order would also lie as admittedly, the provisions of the Code of Civil Procedure have been made applicable to the proceedings under the Act.