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2007 DIGILAW 540 (AP)

SK. AZGARALI v. SK. NAZIR BASHA

2007-06-08

P.S.NARAYANA

body2007
( 1 ) HEARD Sri V. V. L. N. Sarma, learned counsel representing the appellant in the Second appellant and the revision petitioners in the c. R. Ps. and Sri M. Venkata Narayana, learned counsel representing the respective respondents in all these matters. ( 2 ) NOTICE before admission was ordered in all these matters and Sri M. Venkata narayana, learned counsel representing the respective respondents entered appearance. At the request of the counsel on record, the matters are being disposed of finally. ( 3 ) SRI V. V. L. N. Sarma, learned counsel representing the appellant in Second Appeal and the revision petitioners in the C. R. Ps would submit that the substantial question of law that would arise for consideration in this second Appeal is whether the judgment of the appellate court is a judgment in the eye of law and is it not necessary for the appellate court to appreciate the material on record after hearing the parties. The learned counsel also had pointed out the findings which had been recorded by the appellate Court and further pointed out that at paras 11 and 10 in the respective judgments of the appellate court, it had been recorded that no arguments had been advanced by the counsel for the appellant and the counsel also would maintain that in the light of the same and in view of the clear language of Order 41, Rule 17 of the code of Civil Procedure (for short cpc), the appellate Court could have dismissed the appeals for default but pronouncing judgment on merits cannot be sustained. The counsel also would maintain that, at any rate, instead of giving proper and reasonable opportunity to the appellant and the revision petitioner in the C. R. Ps, disposal of the matters in such a fashion cannot be sustained. ( 4 ) INCIDENTALLY, in this Second Appeal, elaborate submissions were made on the strength of the substantial question of law, which had been specified supra. In the light of the same the Second Appeal and also the c. R. Ps are hereby admitted and inasmuch as both the counsel made a request for disposal of these matters finally these matters are being disposed of finally. In the light of the same the Second Appeal and also the c. R. Ps are hereby admitted and inasmuch as both the counsel made a request for disposal of these matters finally these matters are being disposed of finally. ( 5 ) SRI M. Venkata Narayana, learned counsel representing the respective respondents in this Second Appeal and also c. R. Ps however, would maintain that the objection, which is being raised, is only a technical objection and the parties are close relatives and on merits, there are no substantive grounds to interfere. But, however, in the light of the language of order 41, Rule 17 of the CPC, the course adopted by the appellate Court, no doubt, cannot be sustained. The learned counsel also had pointed out to the oral and documentary evidence available on record and would contend that even if an order of remand to be made it would be a futile exercise. ( 6 ) HEARD the learned counsel for both parties. Perused the material available on record. ( 7 ) THE Second Appeal is preferred as against the decree and judgment made in a. S. No. 14 of 2002 on the file of the Court of the Senior Civil Judge, Kavali, dated 29-6-2005 confirming the decree and judgment made in O. S. No. 88 of 2000 on the file of the Court of the Principal Junior Civil judge, Kavali dated 27-8-2001. The suit was instituted by the respondent-plaintiff for recovery of Rs. 34,300/- basing on two promissory notes. The suit was resisted denying the allegations. On the strength of the respective pleadings of the parties, the following issues were settled: 1. Whether the suit pronote is not supported by consideration? 2. Whether the suit pronote is true and valid? 3. Whether the plaintiff is entitled for suit amount? 4. To what relief? on behalf of the respondent-plaintiff, p. Ws. 1 and 2 were examined and Exs. A-1 to A-6 were marked. On behalf of the appellant-defendant, D. W. 1 was examined. The court of first instance, on appreciation of evidence, came to the conclusion that the suit promissory notes were proved in accordance with law and accordingly decreed the suit. Aggrieved by the same, the appellant-defendant preferred this appeal and the appellate Court at para 8 framed the following point for consideration: 1. The court of first instance, on appreciation of evidence, came to the conclusion that the suit promissory notes were proved in accordance with law and accordingly decreed the suit. Aggrieved by the same, the appellant-defendant preferred this appeal and the appellate Court at para 8 framed the following point for consideration: 1. Whether the appellant is entitled for setting aside the decree and judgment, dated 27-8-2001, in O. S. No. 88 of 2000 by the Principal Junior Civil Judge/s court, Kavali or not? at para 11, the appellate Court recorded as hereunder. "no arguments were advanced by the appellant and the learned advocate for respondent argued to dismiss the appeal as there are no grounds to allow this appeal. " the learned Judge recorded certain reasons at paras 12 and 13 and ultimately dismissed the appeal with costs confirming the decree and judgment of the Court of first instance. Hence, the Second Appeal was preferred. ( 8 ) C. R. P. No. 3761 of 2005 also is preferred by the self same defendant and, no doubt, the respondent-plaintiff is different. Substantially the same grounds had been raised. Respondent-plaintiff instituted a suit O. S. No. 87 of 2000 for recovery of rs. 23,100/- and on the strength of the respective pleadings of the parties, the following issues were settled: 1. Whether the suit pronote is supported by consideration? 2. Whether the plaintiff is entitled for the suit amount? 3. To what relief? on behalf of the respondent-plaintiff, p. Ws. 1 and 2 were examined, Exs. A-1 to a-3 were marked and on behalf of the revision petitioner-defendant D. W. 1 was examined. The court of the first instance recorded reasons at paras 7 to 11 and ultimately decreed the suit. Aggrieved by the same, the matter was carried by way of appeal being a. S. No. 16 of 2002, on the file of Senior Civil judge, Kavali and the learned Judge at para 8 framed the following point for consideration: 1. Whether the appellant is entitled for setting aside the decree and judgment, dated 27-8-2001, of the Principal Junior civil Judges Court, Kavali or not? at para 11, the learned Judge recorded as herein. "no arguments were advanced by the appellants and the learned advocate for respondent argued to dismiss the appeal and there are no grounds to allow this appeal". Whether the appellant is entitled for setting aside the decree and judgment, dated 27-8-2001, of the Principal Junior civil Judges Court, Kavali or not? at para 11, the learned Judge recorded as herein. "no arguments were advanced by the appellants and the learned advocate for respondent argued to dismiss the appeal and there are no grounds to allow this appeal". The learned Judge recorded certain reasons at paras 12 and 13 and ultimately dismissed the appeal with costs confirming the decree and judgment of the Court of the first instance. ( 9 ) THE self same defendant filed c. R. P. No. 3762 of 2005 being aggrieved by the decree and judgment made in A. S. No. 15 of 2002 on the file of Senior Civil Judge, kavali confirming a decree and judgment made by the Principal Junior Civil Judge, kavali in O. S. No. 86 of 2000. The respondent-plaintiff filed the said suit for recovery of rs. 24,100/- on the strength of promissory note, dated 12-3-1998, and the suit was resisted by the appellant-defendant. The following issues were settled: 1. Whether the suit pronote is true and valid? 2. Whether the plaintiff is entitled for suit amount? 3. To what relief? on behalf of the respondents-plaintiff, p. Ws. 1 and 2 were examined, Exs. A-1 to a-3 were marked and on behalf of the defendant, D. W. 1 was examined and the court of first instance recorded reasons in detail commencing from paras 6 to 10 and ultimately decreed the suit with costs. Aggrieved by the same, the matter was carried by way of appeal A. S. No. 15 of 2002 on the file of senior Civil Judge, Kavali. The appellate court at para 7 framed the following point for consideration: 1. Whether the appellant is entitled for setting aside the decree and judgment dated 27-8-2001 in O. S. No. 86 of 2000 or not? the learned Judge at para 10 recorded as hereunder: "no arguments were advanced by the appellant and the learned advocate for respondent argued to dismiss this appeal as there are no grounds to allow this appeal". The learned Judge recorded certain reasons at paras 11 and 12 and ultimately dismissed the appeal confirming the decree and judgment of the court of first instance. Aggrieved by the same, the present C. R. P. is preferred. The learned Judge recorded certain reasons at paras 11 and 12 and ultimately dismissed the appeal confirming the decree and judgment of the court of first instance. Aggrieved by the same, the present C. R. P. is preferred. As can be seen from the reasons which had been recorded at para 11 and also para 10 as specified supra, there cannot be no doubt or controversy that no arguments had been advanced by the counsel representing the appellant. Order 41, Rule 17 of the Code of Civil Procedure dealing with dismissal of appeal for appellants default reads as hereunder. "dismissal of appeal for appellants 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: Nothing in this sub-rule shall be construed as empowering the court to dismiss the appeal on the merits. 2. Hearing appeal exparte. . . Where the appellant appears and the respondent does not appear, the appeal shall be heard exparte". In Thakursukhpal Singh v. Thakur Kalyan singh and another it was held that the appellate Court is not bound to decide an appeal on merits on the basis of the material on record when the appellant appears at the hearings but does not address the Court. It can dismiss the appeal for default. In Abdur rahman and others v. AT Hifa Begum and others while dealing with Order 41, rule 17 (1) explanation of the CPC, the Apex court held that when the appellant did not appear before the High Court, High Court cannot go into the merits of the case and high Court, therefore, transgressed its limits in taking into account all relevant aspects of the matter and holding that there was no available ground for interference with the decision of the trial Court". This court is not inclined to discuss several factual details and also the evidence available on record for the reason that the learned Judge had recorded that no arguments had been advanced on behalf of the appellant-revision petitioners in all these matters before the appellate Court. This court is not inclined to discuss several factual details and also the evidence available on record for the reason that the learned Judge had recorded that no arguments had been advanced on behalf of the appellant-revision petitioners in all these matters before the appellate Court. When that being so, instead of dismissing the appeals for default for reasons best known, it appears, the learned judge heard the counsel representing the respondent, recorded certain reasons and ultimately dismissed the appeals confirming the decrees and judgments of the Court of first instance. This course adopted by the learned Judge cannot be sustained in the light of the clear express language of order 41, Rule 17 of the C. P. C. This Court is not inclined to express any opinion relating to the other merits and demerits of the matter. Accordingly, the decrees and judgments impugned in the Second Appeal and also the c. R. Ps made by the appellate Court the learned Senior Civil Judge, Kavali are hereby set aside and the matters are remitted to the learned Judge to give opportunity to both the parties, hear the matters and decide the matters afresh in accordance with law and it is needless to say that despite this order of remand, if the appellant-revision petitioner is not co-operating with the Court, the learned judge is at liberty to proceed in these matters in accordance with law. ( 10 ) ACCORDINGLY, with the above observation, the Second Appeal and the c. R. Ps are hereby allowed to the extent indicated above. The parties are directed to bear their own costs. It is needless to say that since these are money matters, top priority to be given for disposal of the matters. .