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2004 DIGILAW 19 (AP)

Mohd. Salabath Khan v. R. Srinivas Rao

2004-01-07

P.S.NARAYANA

body2004
( 1 ) HEARD Sri P. V. Narayana Rao, learned counsel representing the appellant plaintiff, Sri M. Madhava Reddy, and Sri C. Ramesh Sagar, learned counsel representing the respective respondents. Ground-9 of the Second Appeal reads as hereunder: the substantial questions of law that arise for consideration in this second appeal are:- a. Whether III Addl. Dist. Judge is correct and entitled to decide the appeal in A. S. No. 74 of 1999 on merits by dismissing the same on merits when the appellant and his advocate were absent in view of mandatory provisions of Law in explanation to Or. 41 R. 17 (1) of C. P. C. ? b. Whether III Addl. Dist. Judge is justified in deciding the appeal in A. S. No. 74 of 199 without giving notice to the appellant before deciding A. S. No. 74 of 1999 on merits by dismissing the same on merits when the advocate for appellant filed a Memo dated 20-01-2003 reporting No instructions? c. Whether the Courts below are justified in accepting the plea of adverse possession raised by defendants in their W. S. when Ex. B4 is only an agreement of sale which is a permissible possession and title continues to vest in the appellant and that possession follows title? d. Whether it is open to both the Courts below to ignore the admissions of the defendants in W. S. and the evidence of D. W. 2 to D. W. 11 and non-consideration of the same is itself a substantial question of law and non-consideration of Ex. A1, A2, A5 to A13, 18 to 21 by the III Addl. District Judge is a substantial question of law? ( 2 ) THE factual details need not detain this Court in disposing of the second appeal in view of the admitted fact that the appellate Court had disposed of the matter on merits, though the learned Advocate representing the appellant filed a memo stating that he had no instructions from the party. The learned senior Counsel Sri P. V. Narayana Rao made an attempt to touch the merits and demerits of the matter. The learned counsel also had drawn the attention of this Court to the explanation to Order 41 Rule 17 (1) of the Code of Civil Procedure (for brevity, the Code ). The learned senior Counsel Sri P. V. Narayana Rao made an attempt to touch the merits and demerits of the matter. The learned counsel also had drawn the attention of this Court to the explanation to Order 41 Rule 17 (1) of the Code of Civil Procedure (for brevity, the Code ). The learned counsel would maintain that in such circumstances only the course left open to this Court is to remand the matter. Strong reliance was placed on a decision of the Supreme Court reported in ABDUR RAHMAN and ORS. v. ATHIFA BEGUM and ORS. 1996 (O) Supreme 753. ( 3 ) ON the contrary, Sri M. Madhava Reddy, learned counsel representing certain respondents had submitted that it is really unfortunate that there is total non-cooperation on the part of the appellant and being vexed with the said non-cooperation, the learned III Additional District Judge, Karimnagar had disposed of the matter on merits. The learned counsel also had expressed an apprehension that even if an order of remand is made by this Court, the result would be the same and again the same non cooperation would be repeated. ( 4 ) HEARD both the learned counsel. Order 41 Rule-17 (1) of the Code dealing with the dismissal of appeal for appellants default reads as hereunder: 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 the explanation to Order 41 Rule 17 (1) of the Code, says that nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits. The learned III Additional District Judge, Karimnagar had recorded that the counsel on record on appellants side filed a memo stating that he has no instructions from the party, but instead of either dismissing the matter for default or issuing notice to the party, had proceeded to decide the matter on merits by reserving the judgment. This course adopted by the learned Judge in my considered opinion cannot be sustained in the light of the proviso specified supra. The same view was expressed by the Apex Court in Andur Rahmans case (1 supra ). The other merits and demerits of the matter need not be repeated. This course adopted by the learned Judge in my considered opinion cannot be sustained in the light of the proviso specified supra. The same view was expressed by the Apex Court in Andur Rahmans case (1 supra ). The other merits and demerits of the matter need not be repeated. Since this Court has no other option except remitting the matter back in view of the facts and circumstances specified supra. ( 5 ) IN view of the same, the impugned judgment and decree made in A. S. No. 74 of 1999 on the file of the III Additional District Judge, Karimnagar are hereby set aside and the matter is remanded to the appellate Court to issue notice to both the parties and decide the matter afresh in accordance with law. It is needless to say that the appellant-plaintiff shall co-operative with the Court enabling the court to dispose of the matter on merits without adopting any delaying tactics in this regard. ( 6 ) SECOND Appeal is accordingly allowed to the extent indicated above. No order as to costs.