Judgment :- 1. The defendant is the appellant. This second appeal was admitted and notice issued on the ten questions formulated in the memorandum of second appeal. The first question relates to the jurisdiction of the appellate Court to dismiss as appeal on merits when the appellant does not appear when the appeal is called for hearing. This question is based on the new Explanation to R.17,0.41 CPC. There was a conflict of judicial opinion on the question whether an appellate Court can dispose of the appeal on merits under 0.41 R.17 CPC. The object of the Explanation is to resolve this conflict. 2. In the suit, the plaintiff prayed for recovery of the 'B' schedule property, 3/4 cents in extent, after removal of the hut therein and for an injunction in respect of the 'A' schedule property. The defence in the suit was that the property was in the possession of the defendant and his predecessors from time immemorial that the land was Government poromboke, that the defendant was a trespasser and that he could not be evicted. 3. The trial Court decreed the suit in part, declining the relief for damages and costs. The defendant was directed to dismantle and remove the shed and water tank put up by him in the 'B' schedule. An appeal was filed by the defendant against this decree. There was a cross appeal by the plaintiff praying for a decree for damages for use and occupation and costs. The appeal was posted to 29-3-1979 for final hearing by an order dated 23-3-1979. It was adjourned to 3-4-1979. On 3-4-1979 the appellant prayed for time till 4-4-1979. The appeal was posted to 4-4-1979. It is seen from Para.6 of the judgment that on 4-4-1979 the appellant's counsel submitted that his file was missing and that he would find out the file or reconstitute the same and argue the case on 6-4-1979. The appeal was accordingly posted to 6-4-1979. On 6-4-1979 the appeal was called during the roll call. A representation was made for and on behalf of the appellant's counsel that he was engaged in the High Court and that he would appear before the Court by 12.15. The case was again called at 12.45 Neither the appellant nor his counsel was present. The respondent's counsel was present and he was heard. The appeal was posted for judgment to 7-4-1979. The case was again called at 12.45 Neither the appellant nor his counsel was present. The respondent's counsel was present and he was heard. The appeal was posted for judgment to 7-4-1979. On 7-4-1979 the appeal was dismissed and the cross-appeal was partly allowed. 4. It is seen that the counsel for the appellant filed I A. No. 2126 of 1979 for a review of the order passed by the learned Subordinate Judge on 6-4-1979 posting the case for judgment on 7-4-1979 The said application is seen filed on 7-4-1979. The application was under Order IX R.9 and S.151 CPC. This application was dismissed on 2-8-1979 on the ground that the appeal itself was disposed of on 7-4-1979 and since there was no application for review of the appellate judgment the application to review the order dated 6-4-1979 was not maintainable. I may in passing observe that the affidavit in support of the application for review of the order dated 6-4-1979 was sworn to by the appellant's counsel himself. I have before me a typed copy of the order dismissing the review petition wherein it is stated that the Advocate for the appellant reached the Court only at 2.30 P. M. by which time the appeal was posted for judgment. 5. I do not find anything improper in what the learned Subordinate Judge has done. The subordinate judiciary has to dispose of cases in accordance with the directions of the High Court. There is a list system prevalent in this State for the subordinate judiciary to adhere to. If appeals listed for hearing are not disposed of in time, the judge will have to offer explanation to its higher authorities; if the explanation is unsatisfactory he can incur their wrath also. From the proceedings it is clear that sufficient indulgence was shown by the judge to the appellant's counsel to prepare and argue the appeal. 6. That takes us to the question whether the dismissal of the appeal on merits was in violation of 0.41 R.17 CPC. I may at once reject this argument in this case since there was a cross-appeal also to be heard on that day. Counsel for the cross-appellant was present while the respondent's counsel was not. The cross-appeal could be heard even though the respondent was not present. I may at once reject this argument in this case since there was a cross-appeal also to be heard on that day. Counsel for the cross-appellant was present while the respondent's counsel was not. The cross-appeal could be heard even though the respondent was not present. While hearing the cross-appeal, the learned judge had to consider all the facts of the case and it was after hearing the appeal in full that the judgment was pronounced. Therefore, even if it is to be assumed that the Explanation to 0.41 R.17 prohibits the dismissal of the appeal on merits when the appellant is absent, the said prohibition cannot apply in this case. Even so, I shall consider the submission based on the Explanation to R.17,0.41 CPC. 7. The 1976 amendment to the Code of Civil Procedure was enacted with the avowed object, among others, of reducing delay in pending cases. Explanation to R.17 can never be understood to have been enacted to cause further delays in proceedings in Court. The explanation contains a direction to Courts not to dismiss an appeal on merits when the appellant is absent. The idea underlying this explanation is to permit the appellant on being told of the dismissal of the appeal to take appropriate steps to get the appeal reposted on satisfying the Court why he did not appear when the appeal was called on for hearing. Now what does the expression "the appellant does not appear" occurring in R.17 mean. This expression applies only when the appeal is called on for hearing; that is, not when it is called for being postponed or for disposing of some interlocutory or incidental applications. Appearance in an appeal means effective appearance for prosecuting the appeal. Appearance by an Advocate for a party is an effective appearance. When an Advocate appears for a party when the appeal is called on for hearing or when a representation is made on his behalf at that time, there is effective appearance for the party When a request is made by the Advocate or by some one on his behalf for the matter to be passed over and the Court accedes to such a request, the Court does so as a matter of accommodation noting that the party is present through the Advocate for hearing the appeal. The Court hears the Advocate when he turns up. This situation does not attract R.17. The Court hears the Advocate when he turns up. This situation does not attract R.17. If the Advocate does not turn up, the Court is perfectly within its rights to hear the appeal on merits and pass appropriate orders. Otherwise, the Court will be helpless in getting disposal of cases listed for hearing. 8. Now to the facts of this case. Here, the appellant is represented by his counsel. The appeal came up for hearing on three occasions before 6-4-1979. On all these occasions the appeal was adjourned at the request of the appellant's counsel. On 6-4-1979 when the appeal was called on for hearing, it was reported that the appellant's counsel would appear by 12.15, which means that the appellant did appear. He did not come at the promised hour. The appellant's Advocate came only at 2 30 P. M. by which time appeal was heard. It cannot be said that the explanation inhibits a Court from disposing of the appeal on merits when the appellant's counsel contrary to the motion made by him declines to make himself available when the appeal is heard. If the submission made by the counsel is to prevail, an appeal would never be heard on merits. If the submission made by the appellant's counsel is to be accepted, then the appellate judge will be helpless and he has merely to dismiss the appeal so that an application to restore the appeal could be filed. This will be a never ending process. The explanation does not contemplate such a situation. It is enacted only to help a party who for valid reasons could not appear when the appeal was called on for hearing. To accept the submission made by the appellant's counsel would be going against the spirit of the explanation and the new amendment. 9. The remaining questions formulated in the memorandum of second appeal relate to disputed questions of fact. Both the Courts have concurrently found against the appellant on facts Even so, I shall consider the contentions in brief since notice was issued on these questions also to find out whether the appellant was in any way prejudiced by the disposal of the appeal without hearing. Plaint'A' schedule property is 9 cents in Survey Number 849. 'B' schedule property is 3/4 cents in extent. Plaint'A' schedule property is 9 cents in Survey Number 849. 'B' schedule property is 3/4 cents in extent. One A. D. Valiath obtained lease in respect of 18 cents of property in this survey number from the erstwhile Cochin State. This lease is evidenced by Ext A17. The plaint properties form part of this 18 cents. The properties of this person were partitioned as per Ext. A2.9 cents were allotted to his daughter, Anna. The plaintiff purchased 9 cents out of these properties, from Anna as per Ext. A3 of the year 1966. The plaintiff had purchased other properties also from Anna and it is seen that on the western side of the 'A' schedule property there is a patta property of Anna. She filed an application under the Land Conservancy Act for assignment of the Jenm right in respect of 'A' schedule property. According to the plaintiff, the defendant's father Antony was a kudikidappukaran in the patta land. After the death of the pattadar, the defendant's father executed Ext. A4 coolicharthu in respect of the property to the widow of the original pattadar. This document proves that the defendant's father had no right over the leasehold property comprised in Ext. A17. The application for assignment of the Jenm right was allowed by the Government as per Ext. A6 order. It is seen that the defendant filed a review application to re-consider Ext. A6 order. The application was dismissed. Ext. A7 is the order passed confirming Ext. A6 order. True, it is clear that the plaintiff is the lessee of the plaint schedule property. It is against these documents that the defendant claims that he is the kudikidappukaran in respect of the plaint A schedule property. Since A schedule property is admittedly Sircar land, the claim of kudikidappu cannot be accepted. The defendant filed Ext. A9 application for purchase of kudikidappu in respect of the patta property. Ext. A10 is the copy of notice received by the plaintiff on Ext. A9. The plaintiff filed an application under S.75 (3) of the Act for shifting of the kudikidappu. Subsequently Ext. 9 application was dismissed as per Ext. A13 order. The defendant again filed Ext. All application for purchase of kudikidappu. That also was dismissed. Ext. A10 is the copy of notice received by the plaintiff on Ext. A9. The plaintiff filed an application under S.75 (3) of the Act for shifting of the kudikidappu. Subsequently Ext. 9 application was dismissed as per Ext. A13 order. The defendant again filed Ext. All application for purchase of kudikidappu. That also was dismissed. These documents conclusively prove that he has no possession or right over the plaint schedule property and that the kudikidappu claimed can relate only to the patta property. It is idle to contend in the face of these documents that the Courts below went wrong in decreeing the suit as prayed for. The questions formulated have therefore to be answered against the appellant. There is no merit in the Second Appeal and hence I dismiss the same with costs. Dismissed.