ANTONY Vs. RITA

JUDGEMENT

(1.) The defendant is the appellant. This second appeal was admitted and notice issued on the ten questions formulated in the memorandum of second appeal. The first question relates to the jurisdiction of the appellate Court to dismiss aa appeal on merits when the appellant does not appear when the appeal is called for hearing. This question is based on the new Explanation to R.17, O.41 CPC. There was a conflict of judicial opinion on the question whether an appellate Court can dispose of the appeal on merits under O.41 R.17 CPC. The object of the Explanation is to resolve this conflict.

(2.) In the suit, the plaintiff prayed for recovery of the 'B' schedule property, 3/4 cents in extent, after removal of the hut therein and for an injunction in respect of the 'A' schedule property. The defence in the suit was that the property was in the possession of the defendant and his predecessors from time immemorial that the land was Government poromboke, that the defendant was a trespasser and that he could not be evicted.

(3.) The Trial Court decreed the suit in part, declining the relief for damages and costs. The defendant was directed to dismantle and remove the shed and water tank put up by him in the 'B' schedule. An appeal was filed by the defendant against this decree. There was a cross appeal by the plaintiff praying for a decree for damages for use and occupation and costs. The appeal was posted to 29-3-1979 for final hearing by an order dated 23-3-1979. It was adjourned to 3-4-1979. On 3-4-1979 the appellant prayed for time till 4-4-1979. The appeal was posted to 4-4-1979. It is seen from Para.6 of the judgment that on 4-4-1979 the appellant's counsel submitted that his file was missing and that he would find out the file or reconstitute the same and argue the case on 6-4-1979. The appeal was accordingly posted to 6-4-1979. On 6-4-1979 the appeal was called during the roll call. A representation was made for and on behalf of the appellant's counsel that he was engaged in the High Court and that he would appear before the Court by 12.15. The case was again called at 12. 45 Neither the appellant nor his counsel was present. The respondent's counsel was present and he was heard. The appeal was posted for judgment to 7-4-1979. On 7-4-1979 the appeal was dismissed and the cross appeal was partly allowed.