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TMI Blog2014 (4) TMI 1271X X X X Extracts X X X X X X X X Extracts X X X X ..... ehearing of the appeal when the matter is heard in the absence of the Respondent and ex-parte decree made. In Abdur Rahman case [ 1996 (8) TMI 471 - SC ORDER] , this Court made it clear that because of non-appearance of the Appellants before the High Court, High Court could not have gone into the merits of the case in view of specific course of action that could be chartered (viz. dismissal of the appeal in default above) continued in the explanation to Order XLI Rule 17, Code of Civil Procedure and by deciding the appeal of the Appellants on merits, in his absence. It was held that the High Court had transgressed its limits in taking into account all the relevant aspects of the matter and dismissing the said appeal on merits, holding that there was no ground to interfere with the decision of the trial court. In the facts of the present case, the Respondent had filed the Suit seeking partition of two properties claiming half share each in both these properties mentioned in Schedules A and B. The trial court had decreed the Suit in respect of Schedule B property but dismissed the same qua Schedule A property. Both the parties had gone in appeal. In so far as appeal of the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levant facts: 4. One Late Shiv Pershad Jaiswal was the owner and possessor of House No. 11-2-378, Habeed Nagar, Hyderabad as well as House No. 4-114 to 117 with appurtenant land admeasuring about Ac. 2.05 guntas at Madchal, R.R. District. After his death, the Respondent herein (daughter of Shiv Pershad Jaiswal) filed the Suit, being O.S. 1287 of 1985, in City Civil Court, Hyderabad claiming 1/3rd share in the aforesaid properties which were described in Schedule A and B to the plaint. In the said Suit, she impleaded her brother and mother as the Defendants. During the pendency of the Suit, the mother died which led to the amendment in the Suit filed by the Respondent claiming 1/2 share in the aforesaid properties. Additional relief of rendition of accounts was also prayed for, as the brother (Appellant No. 1) was collecting the rent from the tenants from certain portion of the Suit properties. By way of amendment, Appellant No. 2 herein (wife of Appellant No. 1) was also impleaded in whose favour her mother had bequeathed property by executing a Will dated 6.7.1983. The Suit was contested by the Defendants by filing written statement. Number of issues and additional issues were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in the absence of their Counsel, appeal filed by them could not have been decided on merits and the only course open to the Court was to dismiss the appeal in default, as that is the only permissible course of action provider in Order XLI Rule 17 of the Code of Civil Procedure in such an eventuality. This argument, however, did not impress the High Court. A perusal of the order of the High Court would also demonstrate that the High Court was not impressed with the argument that non-appearance of the Counsel for the Appellants was bonafide or there was sufficient cause shown for the Counsel's absence. In fact, a perusal of docket proceeding in appeal of the Respondents indicated that another Single Judge had heard common arguments in both appeals on an earlier occasion and even the judgment was reserved. However, owing to the fact that he was subsequently appointed as Chairman, Andhra Pradesh Administrative Tribunal and could not deliver the judgment, the appeals were directed to be listed for hearing afresh. The record was not showing as to who was represented Appellants at that time and advanced the arguments. Therefore, the Appellants could not feign absence of their ear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the arguments at the time of hearing of the appeal. As per Rule 17, the appeal can be dismissed in case of Appellant's default in appearance. Since the arguments hinges around this rule, we reproduce the said rule hereunder: 17. 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 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 ex-parte. - Where the Appellant appears and the Respondent does not appear, the appeal shall be heard ex-parte. 12. Where the appeal is dismissed in default Under Rule 17, remedy is provided to the Appellant Under Rule 19 for re-admission of the appeal on moving an application and showing that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing. Likewise, Rule 21 gives an opportunity to the Respondent to move similar application for rehearing of the appeal by demonstrating sufficient cause fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here the findings of the first appellate court was recorded that there existed a relationship of landlord and tenant between the parties and since possession was taken as long back as in the year 1986 i.e. long before the filing of the appeal, the court refused to exercise discretion Under Article 136 of the Constitution to remand of the case to the High Court for fresh disposal. Thus, on the issue of law this judgment supports the case of the Appellants herein. The Court, however, deemed it proper not to exercise its discretion and entertain the petition Under Article 136 for the aforesaid reasons. 16. Reverting to the facts of the present case, as already pointed out above, the Respondent had filed the Suit seeking partition of two properties claiming half share each in both these properties mentioned in Schedules A and B. The trial court had decreed the Suit in respect of Schedule B property but dismissed the same qua Schedule A property. Both the parties had gone in appeal. In so far as appeal of the Respondent is concerned, the same has been allowed ex parte as nobody appeared on behalf of the Appellants. This course of action was available to the High Court as Sub-rule (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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