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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 ..... GMENT A.K. Sikri, J. 1. Leave granted. 2. In all these appeals identical question of law is raised, which has arisen for consideration in the same background facts in these cases, which are between the same parties. There is thus, a commonality of parties, the dispute as well as question of law in all these cases and for this reason these appeals were heard analogously and are being disposed of by this common judgment. 3. The factual details giving rise to the filing of these appeals do not need a large canvass, and our purpose would be served in drawing the picture with the following relevant 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceed against the Appellants for rendition of accounts at the time of passing of final decree for the rent realized by Appellant No. 1 after the death of their mother Respondent on 25.9.1985. 5. The Respondent was not satisfied with the aforesaid preliminary decree vide which she was held not entitled to any share in the Schedule A property. She, accordingly, filed the appeal against the said portion of the preliminary decree, before the High Court of Andhra Pradesh. Likewise, the Appellant also filed appeal against other portion of the preliminary decree whereby the Respondent was held entitled to half share in the Schedule B property. These appeals were listed for final hearing on 29.9.2005. However, Counsel for the Appellants Ms. Shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lants referred to explanation appended to Order XLI Rule 17 of the Code of Civil Procedure. Mr. Sanyal also relied upon the judgment of this Court in the case of Abdur Rahman and Ors. v. Athifa Begum and Ors. (1996) 6 SCC 62. 10. Mr. Anup George Chowdhuri, learned senior Counsel who appeared for the Respondents argued on the same line which are the reasons adopted by the High Court in passing the impugned order. Additionally, he sought to draw sustenance from the judgment in the case of Ajit Kumar Singh and Ors. v. Chiranjibi Lal and Ors. (2002) 3 SCC 609. 11. It is a common case that the appeals filed by both the parties were governed by the procedure contained in Order XLI of the Code of Civil Procedure. As per Rule 12, in case the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his absence and ex-parte decree passed. 13. It is clear from the above that whereas appeal can be heard on merits if the Respondent does not appear, in case the Appellant fails to appear it is to be dismissed in default. Explanation makes it clear that the court is not empowered to dismiss the appeal on the merits of the case. As different consequences are provided, in case the Appellant does not appear, in contradistinction to a situation where the Respondent fails to appear, as a fortiori, Rule 19 and Rule 21 are also differently worded. Rule 19 deals with re-admission of appeal "dismissed for default", where the Appellant does not appear at the time of hearing, Rule 21 talks of "rehearing of the appeal" when the matter is heard in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anded to the High Court for fresh disposal in accordance with the law. In the facts of that case where 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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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