ORDER Anjani Kumar, J.
1. This writ petition under Article 226 of the Constitution of India filed by the petitioner-tenant questions the order dated 16th September, 2004, passed by the appellate authority under Section 22 of the U. P. Act No. 13 of 1972 (in short the 'Act'), copy whereof is annexed as Annexure-9 to the writ petition, whereby the appeal filed by the petitioner-tenant against the order of the prescribed authority dated 29th July, 2003, copy whereof is annexed as Annexure-2 to the writ petition, has been dismissed.
2. In brief, the facts leading to the filing of the present writ petition are that the respondent-landlord filed an application under Section 21(1) (a) of the Act. The notice of the aforesaid application under Section 21(1) (a) of the Act was issued by the prescribed authority to the petitioner-tenant and the service of the said notice was held sufficient by the prescribed authority and according to the order passed by the prescribed authority the tenant has not appeared despite the service of the notice on the tenant. The prescribed authority therefore proceeded exparte against the petitioner-tenant vide its order dated 29th July, 2003 and allowed the application filed by the landlord and directed the release of the accommodation in question in favour of the landlord.
3. The petitioner-tenant filed an application before the prescribed authority for setting aside the aforesaid exparte order dated 29th July, 2003, passed by the prescribed authority with the allegation that the tenant came to know of the passing of the aforesaid exparte order from the neighbour Anil Kumar Mittal on 15th September, 2003, thereupon the tenant contacted his counsel on 16th September, 2003, who could inspect the file of the records only on 18th September, 2003 and thereafter he filed an application for setting aside the exparte order on the ground that he had never been served with the notice of the application, referred to above and he could have no knowledge of the pendency of the proceedings. The tenant therefore prayed in his application that the ex-parte order dated 29th July, 2003 may be recalled/set aside and the matter may be heard after affording opportunity to the tenant on merits. The prescribed authority rejected the aforesaid application vide its order dated 28th July, 2004, holding that the applicant, has not been able to give satisfactory explanation as to how he could get the information from Anil Kumar Mittal. The prescribed authority also find that the notice issued by the prescribed authority has been refused by the tenant and that has been found to be sufficient service, therefore the prescribed authority did not accept the explanation given by the petitioner-tenant and rejected the application for setting aside the exparte order dated 29th July, 2003.
4. Aggrieved thereby, the petitioner-tenant preferred an appeal before the lower appellate court under Section 22 of the Act. The appellate authority vide its order dated 16th September, 2004, have found that the findings arrived at by the prescribed authority on the question of sufficiency of service of notice on the tenant does not suffer from any error and affirmed the findings arrived at by the prescribed authority to this aspect of the matter and dismissed the appeal preferred by the petitioner-tenant, thus, this writ petition.
5. Learned counsel appearing on behalf of the petitioner-tenant at the outset submitted that in view of the law laid down by the Apex Court on the question that the case should be decided as far as possible on merits and not on mere technicalities. He relies upon a decision in 1978 ARC 496. I am in full agreement with the aforesaid view expressed by the Apex Court that the matter of the nature as the present case should primarily be decided on merits. In these circumstances as also in the interest of justice I hereby quashed the orders passed by the prescribed authority as well as by the lower appellate authority and remand the matter to the prescribed authority to be decided afresh on the merits of the case after affording an opportunity of hearing to the petitioner-tenant.
6. In the result, this writ petition succeeds and is allowed. The order dated 29th July, 2003 passed by the prescribed authority and the order dated 16th September, 2004, passed by the lower appellate authority. Annexures-2 and 9 to the writ petition are quashed. The matter is remanded back to the prescribed authority with a direction to decide the same on merits after affording opportunity to the tenant expeditiously. The parties are directed to appear before the prescribed authority as undertaken by their respective counsel before him on or before 15th December, 2004.