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2005 DIGILAW 484 (KAR)

Malleshi v. Mallayya

2005-07-26

V.G.SABHAHIT

body2005
JUDGMENT V.G. Sabhahit, J.—These two appeals arise out of the common judgment passed by the Court of Civil Judge (Sr.dn.) Aland in RA. Nos. 65/2003 and 66/2003 dated 5.2.2004 dismissing both the appeals and confirming the judgment and decree passed by the Court of Civil Judge (Jr.Dn.) Aland in O.S. Nos. 137/94 and 162/93. 2. The essential facts of the case leading upto these appeals with reference to the rank of the parties before the Trial Court are as follows: O.S. No. 137/94 was filed for the relief of declaration that plaintiff is the absolute owner in possession of the land Rearing No. 58/3 measuring 38 guntas as per the description given in the schedule situated in Kawalga village and for cancellation of the decree passed in O.S. No. 155/93 dated 28.6.1994 by declaring that the suit decreed is null and void and for relief of perpetual injunction. The suit was resisted by the defendants. 3. O.S. No. 162/93 was filed by the same plaintiff in O.S. No. 137/94 in respect of Sy. No. 58/3 measuring 38 guntas seeking for a declaration that plaintiff is the absolute owner in possession of the land in Sy. No. 58/3 and for injunction against the defendants. The suit was also resisted by the defendants. 4. The Trial Court framed appropriate issues and after trial decreed the suits by answering the issues in favour of the plaintiff by judgment dated 4.12.1999. Being aggrieved by the said judgment and decree, the defendants preferred RA. Nos. 65/2003 and 66/ 2003 and the Court of Civil Judge (Sr. dn.) Aland by judgment dated 5.2.2004 dismissed the appeals and confirmed the judgment and decree passed by the Trial Court and being aggrieved by the said judgment and decree dated 5.2.2004 these two appeals are filed and appeals are admitted on 21.7.2005 for consideration of the following substantial question of law: "Whether the judgment and decree passed by the First Appellate Court considering the appeal on merits in the absence of the appellant, after hearing the Counsel for the respondent is perverse and arbitrary?" 5. I have heard the learned Counsel appearing for the parties on the above said substantial question of law and perused the proceedings before the first appellate and the judgment passed by the First Appellate Court. 6. It is clear from the judgment passed by the First Appellate Court in RA. Nos. I have heard the learned Counsel appearing for the parties on the above said substantial question of law and perused the proceedings before the first appellate and the judgment passed by the First Appellate Court. 6. It is clear from the judgment passed by the First Appellate Court in RA. Nos. 65/2003 and 66/2003 dated 5.2.2004 impugned in these appeals that the appeals have been filed before the Court of Civil Judge (Sr. dn.) Gulbarga and after establishment of the Court of Civil Judge (Sr.dn.) Aland, the said two appeals have been transferred to the Court of Civil Judge (Sr. Dn.) Aland and it is clear from the material on record that the observations made in the judgment itself that after transfer notice was duly issued to the appellants in both the appeals and the respondents-appellants Counsel refused to receive notice but appellant No. 2 received notice and remained absent. However, the First Appellate Court proceeded to hear counsel appearing for the respondent and pass the judgment on merits. It is well settled in view of the pro visions of Order 41 Rule 17 of CPC., that when the counsel appearing for the appellants or the appellants are not present and the counsel for the respondent is present, the only course open to the Appellate Court is to dismiss the appeal for non-prosecution and the Appellate Court should not consider the appeal on merits after hearing the counsel for the respondent as order 41 Rule 17(1) of CPC., reads as follows: "Dismissal of appeal for appellant's default: 1) 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". Explanation- 7. It is only when the appellant appears and the respondent does not appear, the appeal shall be heard exparte. Wherefore, it is clear that no more reasons are required to set aside the judgment and decree passed by the First Appellate Court on merits in the absence of counsel appearing for the appellants or the appellants and on the basis of the argument of the counsel appearing for the respondents. Accordingly, I answer the substantial question of law in the affirmative and pass the following order: 8. The appeals are allowed. Accordingly, I answer the substantial question of law in the affirmative and pass the following order: 8. The appeals are allowed. The judgment and decree passed by the Court of Civil Judge (Sr.Dn.) Aland, in RA. Nos. 65/2003 and 66/2003 dated 5.2.2004 is set aside and the appeals RA. 65/2003 and RA. 66/2003 are restored to the file of Civil Judge (Sr.Dn.) Aland. The parties are directed to appear before the First Appellate Court on 5.9.2005 without need of issuing any fresh notice by the Court and seek further instructions and the First Appellate Court shall dispose of the appeals, in accordance with law.