MOHAMMED SALABATH KHAN Vs. R SRINIVAS RAO

JUDGEMENT

(1.) Heard Sri P.V. Narayana Rao, learned counsel representing the appellant plaintiff, Sri M. Madhava Reddy, and Sri C. Ramesh Sagar, learned counsel representing the respective respondents. Ground-9 of the Second Appeal reads as hereunder: The substantial questions of law that arise for consideration in this second appeal are:- a. Whether III Addl. Dist. Judge is correct and entitled to decide the appeal in A.S.No.74 of 1999 on merits by dismissing the same on merits when the appellant and his advocate were absent in view of mandatory provisions of Law in explanation to Or.41 R.17 (1) of C.P.C.? b. Whether III Addl. Dist. Judge is justified in deciding the appeal in A.S.No.74 of 199 without giving notice to the appellant before deciding A.S.No.74 of 1999 on merits by dismissing the same on merits when the advocate for appellant filed a Memo dated 20-01-2003 reporting No instructions? c. Whether the Courts below are justified in accepting the plea of adverse possession raised by defendants in their W.S. when Ex.B4 is only an agreement of sale which is a permissible possession and title continues to vest in the appellant and that possession follows title? d. Whether it is open to both the Courts below to ignore the admissions of the defendants in W.S. and the evidence of D.W.2 to D.W.11 and non-consideration of the same is itself a substantial question of law and non-consideration of Ex.A1, A2, A5 to A13, 18 to 21 by the III Addl. District Judge is a substantial question of law?

(2.) The factual details need not detain this Court in disposing of the second appeal in view of the admitted fact that the appellate Court had disposed of the matter on merits, though the learned Advocate representing the appellant filed a memo stating that he had no instructions from the party. The learned senior Counsel Sri P. V. Narayana Rao made an attempt to touch the merits and demerits of the matter. The learned counsel also had drawn the attention of this Court to the explanation to Order 41 Rule 17 (1) of the Code of Civil Procedure (for brevity, the Code). The learned counsel would maintain that in such circumstances only the course left open to this Court is to remand the matter. Strong reliance was placed on a decision of the Supreme Court reported in ABDUR RAHMAN & ORS. v. ATHIFA BEGUM & ORS. 1996 (O) Supreme 753.

(3.) On the contrary, Sri M. Madhava Reddy, learned counsel representing certain respondents had submitted that it is really unfortunate that there is total non-cooperation on the part of the appellant and being vexed with the said non-cooperation, the learned III Additional District Judge, Karimnagar had disposed of the matter on merits. The learned counsel also had expressed an apprehension that even if an order of remand is made by this Court, the result would be the same and again the same non cooperation would be repeated.