Harbans Pershad Jaiswal(D) By Lrs vs Urmila Devi Jaiswal (Dead) By Lrs

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 117 with appurtenant land admeasuring about Ac.2.05 guntas at Madchal, R.R. District. After his death, the respondent herein (daughter of Shiv Pershad Jaiswal) filed the Suit, being O.S.1287 of 1985, in City Civil Court, Hyderabad claiming1/3rd share in the aforesaid properties which were described in Schedule A and B to the plaint. In the said Suit, she impleaded her brother and mother as the defendants. During the pendency of the Suit, the mother died which led to the amendment in the Suit filed by the respondent claiming ½ share in the aforesaid properties. Additional relief of rendition of accounts was also prayed for, as the brother (appellant No.1) was collecting the rent from the tenants from certain portion of the Suit properties. By way of amendment, appellant No.2 herein (wife of appellant No.1) was also impleaded in whose favour her mother had bequeathed property by executing a Will dated 6.7.1983. The Suit was contested by the defendants by filing written statement. Number of issues and additional issues were framed and both the parties led their evidence in support of their respective cases. After hearing the arguments, the learned City Civil Court passed the preliminary decree dated 5.8.1993 holding that the respondent as well as appellant No.1 (herein brother) were entitled to half share each in respect of property at Madchal, R.R. District (Schedule A property). Suit qua Habeeb Nagar (Schedule B property) was dismissed. The Trial Court also directed the respondent to 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. Shalini Saxena did not appear in the Court on that day. The High Court heard the counsel for the respondent on the merits of the appeal and rendered judgment dated 29.9.2005 whereby appeal of the respondent was allowed and that of the appellants was dismissed.

12. Where the appeal is dismissed in default under Rule 17, remedy is provided to the appellant under Rule 19 for re-admission of the appeal on moving an application and showing that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing. Likewise, Rule 21 gives an opportunity to the respondent to move similar application for rehearing of the appeal by demonstrating sufficient cause for non- appearance, if the appeal was heard in his absence and ex-parte decree passed.

16. Reverting to the facts of the present case, as already pointed out above, the respondent had filed the Suit seeking partition of two properties claiming half share each in both these properties mentioned in Schedules A and B. The trial court had decreed the Suit in respect of Schedule B property but dismissed the same qua Schedule A property. Both the parties had gone in appeal. In so far as appeal of the respondent is concerned, the same has been allowed exparte as nobody appeared on behalf of the appellants. This course of action was available to the High Court as sub-rule (2) of Order XLI Rule 17 categorically permits it. Though the appellants moved application for setting aside this order, the same was dismissed on the ground that no reasonable or sufficient cause for non- appearance was shown. Therefore, this part of the order of the High Court is without blemish and is not to be interfered with. Appeal their against is dismissed.

18. Having said so, the question that arises is that even if the appeal was to be dismissed in default, whether that order warranted to be recalled on application made by the appellants. As is clear from the reading of Rule 19 of Order XLI, the appellants were supposed to show sufficient cause for their non-appearance. The High Court has given categorical finding that no such cause is shown. The learned senior counsel for the appellants did not even address on this aspect or argued that the reason given by the appellant in the application filed before the High Court for non-appearance amounted to sufficient cause and the order of the High Court is erroneous on this aspect. As a result, even if we treat the order of the High Court deciding the appeal of the appellants on merits was not proper and proceed further by substituting it with the order dismissing the said appeal in default, we do not find any reason to recall the order dismissing the appeal in default.

19. As a consequence, these appeals fail and are hereby dismissed.