HON’BLE SRI JUSTICE B.CHANDRA KUMAR S.A.No. 1383 of 2010 DATED: 21.03.2011 Between: Surakasi Kameswara Rao and two others .. Appellants/ Defendants and Dalli Ramakrishna Reddy .. Respondent/ Plaintiff JUDGMENT:- Heard the learned counsel for both the parties and at their instance, this Second Appeal itself is taken up for disposal. The appellants herein are the defendants in O.S. No. 619 of 1998. The 1st respondent-plaintiff filed a suit for declaration of title and recovery of possession over the suit schedule property and the same was decreed. Defendant Nos.3 and 4 and the wife of the 4th defendant, filed an appeal in A.S.No. 70 of 2006, on the file of I Additional District Judge, Visakhapatnam, and during its pendency, the 4th defendant died. When the appeal was posted for arguments, there was no representation on behalf of the appellants, as such, they could not advance their arguments. The lower appellate Court, however, dismissed the appeal on merits, vide its judgment dated 12.08.2010. Being aggrieved by the judgment, the present Second Appeal is preferred. The only submission made the learned counsel for the appellants is that the lower appellate Court ought to have dismissed the appeal for default under Order 41 Rule 17(1) CPC and the appellants could have availed the remedy of re-admission of the appeal under Order 41 Rule 19 CPC. It is also his submission that Explanation to Order 41 Rule 17(1) CPC makes it clear that the appellate Court is not empowered to dismiss the appeal on merits when there is no representation on behalf of the appellants. Order 41 Rule 17(1) reads as follows: “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. And the Explanation to this Rule makes it clear that the appellate Court is not expected to dismiss the appeal on merits.” Order 41 Rule 19 CPC also gives an opportunity to the appellants to file an application for re-admission of the appeal by showing sufficient cause for their absence on the day when the appeal was posted for hearing. In view of the above provision of law, the judgment impugned in this appeal is set aside and the matter is remitted back to the lower appellate Court and the learned I Additional District Judge, Visakhapatnama is directed to afford an opportunity to both the parties, hear and dispose of the matter on merits. If, for any reason, the appellants are absent and there is no representation on their behalf, then he has to follow the procedure prescribed under Order 41 Rule 17 CPC, and accordingly, dispose of the appeal as early as possible, preferably within a period of sixty days from the date of receipt of a copy of this order. Accordingly, the Second Appeal is disposed of. No order as to costs. _______________________ B. CHANDRA KUMAR,J 21st March, 2011 bcj