D THILLAIGOVINDAN Vs. K R JOTHI

JUDGEMENT

(1.) Of course the miscellaneous petition stands posted today for hearing. But, the learned counsel appearing on either side submit that the appeal itself can be disposed of as a question regarding the proprietary of the lower appellate Court dismissing the appeal on merit is the main point in issue involved in the second appeal. Accordingly, with the consent of the counsel appearing on either side, the second appeal itself is taken up for hearing.

(2.) The submissions made by Mr. T.S. Baskaran, on behalf of the appellant and Mr. R. Gopinath, on behalf of the respondent were heard. The second appeal has been admitted on the following questions to be the substantial questions of law involved in the second appeal:

(3.) Whether the Courts below had misread the scope of the judgment and decree of the earlier suit to reject the plaint, as the sale in favour of the plaintiff was construed to be only of the undivided share of his vendor, co-sharer Manickam?" 3. The learned counsel for the parties agree that Question No. 1 shall be taken up for consideration at the first instance and in case the same is decided in favour of the appellant, the other two questions need not be gone into as Question No. 1 goes to the root of the case itself. The Question No. 1 can be resolved with reference to the admitted facts and the interpretation of statutory provisions. The pertinent question that is involved in this case is whether an Appellate Court is empowered to dismiss the appeal on merit, when the appellant remains absent and is not represented by a counsel on the day fixed for hearing of the appeal or on the date to which the hearing has been adjourned. Order 41 Rule 17 is the relevant provision which is extracted here under: