ASHOK C RAJADYAX Vs. AUGUSTIN LOBO

JUDGEMENT

(1.) HEARD learned Counsel Mr. Lawande for the appellant and Mr. Shet for the respondent. By consent of the learned Counsel for the parties, the appeal is taken up for final hearing since the appeal is liable to be disposed of on a very short point.

(2.) THIS second appeal is preferred by the appellant challenging Judgment and Decree dated 07-04-2010, passed by the District Judge-2, South Goa, Margao in Regular Civil Appeal No. 104/2010, dismissing the appeal preferred by the appellant against Judgment and Decree dated 31-01-2005 passed by the 1st Additional Civil Judge, Senior Division, Margao in Special Civil Suit No. 206/2000/I.

(3.) FROM the perusal of the record, it is clear that when appeal preferred by the appellant against the Judgment and Decree passed by the Trial Court was called out for hearing on merits, neither appellant nor his Advocate was present. Hence, the Appellate Court was not entitled to dispose the appeal on merits. The Appellate Court had only two options, either to dismiss the appeal for default or adjourn the matter to a future date to hear the appellant and/or his Advocate. Impugned Judgment and Decree is clearly in breach of Order 41, Rule 17 of the Civil Procedure Code. On this ground alone, I am of the considered opinion that impugned Judgment and Decree is liable to be quashed and set aside.