G. N. SABHAHIT, J. ( 1 ) THIS appeal by the plaintiff is directed against the judgment and decree dated 17 2 1975 passed by the Civil Judge, mandya, in RA No. 74 of. 1974 on his file dismissing the appeal with costs. ( 2 ) THE sole point that is; arged before me by the learned counsel for the appellant in the above second appeal is that the learned Civil Judge had no jurisdiction to pass a judgment on merits when the appellant and his counsel were absent on the date of hearing. ( 3 ) OR. 41, R. 17 (1) of CPC reads :"dismissal of appeal for appellant's default: - Where on the day fixed, or on 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. By Amendment Act of 1976. an Expiation. is added to this rule which reads : explanation :-Nothing in this sub-rule shall be construed as empowering the Court to dismiss ihe appeal on the merits:. The Explanation being the result of the judicial view taken consistently in this behalf, the Court had no jurisdiction to hear and dismiss on merits, an appeal when the the appellant and his counsel were absent, even prior to the insertion of the Explanation. Hence, it is obvious that the judgment pa ,ed by the Civil judge, on merits in the absence of the appllant and his councile is one without jurisdiction. The appeal should have heen merely dismissed for default. (Vide; Emnwnual Siman Peters v. Alice Peters (1) and Shantilal Chandrashankar v. Bai Basi (2 ). ( 4 ) IT is all the more interesting and significant to note that before the judgment was pronounced on 7 2 1975, an application was submitted by the Appellant before the first appellate Court on 12- 2- 1975 for an opportunity being given to him to argue the matter. Strangely enough, that application is dismissed on 17-2-1975 and the judgment is pronounced, which is clearly wrong and illegal. ( 5 ) IN the result, the appeal is allowed. Strangely enough, that application is dismissed on 17-2-1975 and the judgment is pronounced, which is clearly wrong and illegal. ( 5 ) IN the result, the appeal is allowed. The judgment and decree of the first appellate Court are set aside and the appeal is sent back to the first appellate Court with a direction that the first appellate Court shall now give an opportunity to the appellant and the respondent for arguing the matter a fresh and then proceed to judgment in accordance with law and in the light of obsevatins need above. ( 6 ) THE parties are directed to be present before the first appilete Court on 25- 11- 1982 to take further instructions. ( 7 ) SEND hf. rk the concered records to to the first appellate Court forthwith. ( 8 ) THERE shall be noorderr as to costs in this appeal in the peculiar fact: of this case. --- *** --- .