IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD MONDAY, THE EIGHTEENTH DAY OF APRIL TWO THOUSAND AND ELEVEN PRESENT THE HONOURABLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL No. 42 OF 2004 Between: T. Sreeramulu Reddy … Appellant No.3-Defendant No.4 V/s. Beedam Reddeppa & 5-Ors.… D5 & D6 appellants 1 & 2 Respondents 5 & 6 (R2 to R6 are not necessary parties to the second appeal) Counsel for the Appellant : Sri K.G. Krishna Moorthy Counsel for the Respondents: Sri N. Pramod The Court made the following: (Judgment follows 2nd page) THE HONOURABLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL No. 42 OF 2004 O R D E R : This second appeal is filed against the judgment and decree dated 02-07-2003 passed in AS.No. 14 of 2008 by the II-Additional District Judge, Madanapalle, Chittoor district, confirming the judgment and decree dated 19-12-1997 passed in OS.No. 118 of 1993 by the I- Additional Junior Civil Judge, Madanapalle. 2. I have heard the learned counsel appearing for the appellant. It has been submitted by the learned counsel that the first appellate court passed the judgment on merits in the first appeal without hearing his counsel. Therefore, the judgment is not sustainable. Rule-17 of Order-XLI : Dismissal of appeal for appellant’s default : Rule-17 of Order-41 lays down that 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. Explanation :- Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits. 3. Therefore, when the plaintiff-appellant’s counsel fails to argue the appeal on the date fixed for hearing, the only option left to the appellate court is either to dismiss the appeal for default or to adjourn the hearing of the appeal to a future date so as to enable the appellant’s counsel to submit arguments. 4. In the affidavit filed in CMP.No. 1193 of 2004 in the present second appeal in support of the petition seeking suspension of the operation of the judgment passed by the first appellate court, it has been clearly averred in para No. 6 that the learned first appellate court disposed of the appeal on merits without hearing the appellant’s counsel. 5. The learned counsel for the appellant also brought to the notice of this Court the following facts : That the petition which filed by the appellant before the first appellate court seeking adjournment of the hearing of the appeal on the ground that the mother of the appellant’s counsel was admitted in a Hospital at Bangalore and it was not possible for the appellant’s counsel to proceed with the matter. Previously the learned first appellate court without passing any order on the said adjournment petition returned the same on some technical grounds on 25-6-2003. The petition was represented on 28-6-2003. But again on 28-6-2003 the petition was returned on the ground that full cause title of the parties should be mentioned in the petition. However, ultimately on 02-7-2005 the first appellate court pronounced the judgment. 6. From the above-mentioned events, which took place before the pronouncement of the judgment, it appears that the first appellate court without hearing the arguments of the appellant noted down on the docket as arguments heard, reserved judgment and thereafter pronounced the judgment. The course adopted for disposing of the appeal is erroneous and in clear violation of Rule-17 of Order-41 of the Code of Civil Procedure. 7. For the reasons afore-mentioned, the judgment and decree passed by the first appellate court in AS.No.14 of 1998 is set aside and the matter is remitted back to the first appellate court to hear both the parties and render the judgment in accordance with law and the procedure contemplated under Rule-17 of Order-41 of the Code of Civil Procedure within one month from the date of receipt of a copy of this judgment and concerned records. 8. The appeal is, therefore, allowed and there shall be no order as to costs. _________________________ JUSTICE R. KANTHA RAO. 18-04-2011 I s L THE HONOURABLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL No. 42 OF 2004 Circulation No. 3 9 Date:18-04-2011 Court Master: I s L Computer No. 43