THE HON'BLE SRI JUSTICE B.PRAKASH RAO Second Appeal No.204 of 1997 JUDGMENT: This appeal filed under Section 100 CPC is at the instance of the unsuccessful plaintiff in the lower appellate Court. He is aggrieved by the judgment and decree, dated 05.12.1996, passed by the learned Subordinate Judge, Avanigadda in A.S.No.50 of 1996, allowing the appeal filed by the first respondent by setting aside the judgment and decree, dated 04.12.1992, obtained by him in O.S.No.138 of 1988 on the file of the learned District Munsif, Avanigadda The brief facts, which gave rise to the present proceedings, are that the appellant-plaintiff filed the suit for permanent injunction against the respondents and the same was contested by the respondents herein. After holding regular trial, wherein both sides adduced their evidence, both oral and documentary, the trial Court decreed the suit. Thereafter, a regular appeal has been filed before the lower appellate Court by the first respondent herein. In the appeal, the lower appellate Court though allowed the appeal and set aside the judgment and decree of the trial Court, the fact which is not in dispute at this stage is that the first respondent herein, who is the appellant before the lower appellate Court was neither present nor was represented nor could convass his case in the manner known to law. The lower appellate Court, while allowing the appeal at para-8 noted as under: “When the matter has been coming for hearing there was no representation for appellant and the counsel also did not turn up. Subsequently when the matter was posted for final disposal the learned counsel for appellant made an application to permit him to address the arguments and it was allowed and the matter was posted to 27.11.1996 for hearing the arguments. Again on that day the counsel did not turn up and therefore, the matter is posted for Judgment without hearing the oral arguments of the learned counsel for the appellant.” Thereafter, it was noted ‘heard the learned counsel for the appellant-plaintiff and perused the material on record’. Apparently, the procedure that has been adopted by the lower appellate Court is not acceptable, since there is no representation on behalf of the first respondent herein, who was the appellant before it, and therefore, the matter could not have been proceeded on merits and there could not have been any findings as such. Having regard to the facts and circumstances and to avoid technicalities and for want of opportunities, it is felt desirable that the matter has to be re-heard on merits in accordance with law. The second appeal is accordingly allowed by setting aside the judgment and decree, dated 05.12.1996, passed by the learned Subordinate Judge, Avanigadda in A.S.No.50 of 1995 and the matter is remitted back to the lower appellate Court for fresh disposal in accordance with law, after hearing both sides. No costs. _____________________ B.PRAKASH RAO, J Dt.05.08.2010 VGB