IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE THIRTY FIRST DAY OF MARCH TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL MISCELLANEOUS APPEAL No.762 of 2006 BETWEEN Mr. Puvvada Chiranjeevi Rao. …APPELLANT AND Gandla Ramanamma. …RESPONDENT Counsel for the appellant: Mr. M.V.S. Suresh Kumar Counsel for the Respondent: Mr. V. Parabrahma Sastry The Court made the following: - JUDGMENT: This appeal is directed against the order of the IV Additional District Judge (Fast Track Court), Ongole in I.A.No.47 of 2004 in A.S.No.159 of 2000. 2. The appellant had instituted a suit in O.S.No.43 of 1991 against the respondent for recovery of strip of 5’ width of land on the ground that the respondent has wrongfully encroached thereon. The said suit was transferred to the Court of Principal Senior Civil Judge, Ongole and re- numbered as O.S.No.49 of 1998. By judgment and decree dated 28.09.2000 the said suit was decreed against which the respondent herein had filed an appeal in A.S.No.159 of 2000 before the IV Additional District Judge, Ongole. The said appeal was allowed by the lower appellate Court by order dated 18.03.2004. According to the appellant since he was not heard in the appeal, the disposal of the appeal was clearly ex parte and as such, the appellant had filed an application under Order 41 Rule 21 of Civil Procedure Code, 1908 to re-hear the appeal, that application numbered as I.A.No.47 of 2004 was dismissed by the lower appellate Court under the impugned order dated 06.08.2004. Hence, the present appeal. 3. Heard both sides. 4. The affidavit of the petitioner itself states that he was hospitalized for Kidney operation and there was a suggestion from the Bench for compromising the matter on 17.02.2004. Thereafter, the appeal underwent adjournments at least on three occasions till March 2004. However, even by 10.03.2004 the appellant was not discharged from the hospital and as the lower appellate Court was not prepared to wait any further, the appeal was reserved for judgment and on 18.03.2004, judgment was delivered allowing the appeal. The appellant contends that he was not heard as the matter was being adjourned from time to time for the possibility of exploring compromise. 5. The impugned order itself records that initially the appeal was heard on 03.02.2004 and again on 11.02.2004 but thereafter was adjourned to enable the parties to settle the matter. On the medical grounds, as mentioned by the appellant, he was not available and without him the compromise could not take place. The lower appellate Court recorded on 10.03.2004 on the docket that as there was no representation on behalf of the appellant the Court is constrained to post the matter for judgment on 18.03.2004 and judgment was delivered allowing the appeal. The application for re-hearing of the appeal moved by the appellant was, however, rejected under the impugned order by the lower appellate Court on the ground that such application is not moved earlier. 6. I am of the view that though the said appeal was heard for some time earlier and admittedly, was adjourned for exploring the possibility of settlement, the lower appellate Court ought to have taken into consideration the disability of the appellant on account of medical problem viz. kidney operation. Even if the settlement was not reported as desired by the lower appellate Court, in the least, the appeal could have been heard by giving one more opportunity and then could have been disposed of without waiting for the settlement. The substantial rights of the appellant got affected on account of the judgment of the lower appellate Court allowing the appeal, without hearing the appellant herein. 7. I am, therefore, of the view that the impugned order is liable to be set aside and I.A.No.47 of 2004 in A.S.No.159 of 2000 deserves to be allowed. The lower appellate Court shall re-hear the appeal by setting aside the judgment under appeal dated 18.03.2004 as ex parte and hear the appeal afresh after giving opportunity to both sides. The civil miscellaneous appeal is allowed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J March 31, 2010 DSK