High Court · 2025

3. T.V.Harish Chander, , s/o Late Venkat Swamy,aged 65 years 4. T.V.Vidya sagar, s/o Late Venkat Swamy,aged 60 years. 5. T.V. Ravinder, sio Late Venkat Swamy,aged 44 years. 6. T.V. Srinivas, s/o 40 years,All are r/o 1.7.310, Barbar Bridge, Secunderabad. 7. Smt.P.J. Sai Kumar, w/o Late T.Jaisurya ,aged 60 years, 8. T.J. Praveen, s/o Late T.Jaisurya ,aged 35 years, 9. T.J- Harita, d/o Late T.Jaisurya ,aged 54 years, Respondents No.6 to I are r/o 1-1475, Gandhi Nagar, Hyderabad.

10.V. Devika, w/o Late T.Jai shanker ,aged 54 years, 'l 1.T.V. Aishwarya, dio Late T.Jai shanker ,aged 20 years,All are rlo 1.7.310, Barbar Bridge, Secunderabad ...RESPONDENTS affi=Y lA NO: 1 OF 2025 Petition under Section 151 CPC praying that in the; circumstances stated in the affidavit {iled in support of the petition, the High Court may be pleased to suspend the operation of the Judgment and decree dated 1710312023, passed in 0.S.454 of 2014, by the Learned lll SENIOR Civil Judge, tSity Civil Court Secunderabad. Counsel for the Appellant : SRl. RAJ KIRAN PAGADALA Counsel for the Respondents : MANJARI S GANU The Court made the following: ORDER HON'BLE SRI JUSTICB LAXMI NARAYANA ALISHETTY SECOND APPEAL No.15i of 2025 JUDGMENT: The Second Appeal is filed questioning the judgment and decree dated 03.02.2025, passed by the XXVII Additional Chief Judge at City Civil Court, Secunderabad, in A.S.No'24 of 2023, whereunder and whereby the judgment and decree dated

17.03.2023, passed by the III Senior Civil Judge, City Civil Court, Secunderabad, in O.S.No.454 ol20l4, was confirmed.

2. The appetlant herein is defendant No.l1 and the respondent No.l is plaintiff and respondent Nos.2 to 1 I are delendant Nos.l to t0 in the suit. For convenience, the parties hereinafter referred to as they lvere arrayed in the suit.

3. 'the brief facts of the case, which led to filing of the present Second Appeal, are that the plaintiff filed suit in O'S.No.454 ol 2014 under Order VII Rule I of CPC seeking recovery of possession ofsuit schedule property. Byjudgment and decree dated l7 .03 .2023 , the trial Court partly decreed the suit with costs against the defendants which reads as under:- 2 Ll'tA, J s.A.lt'o.151 oJ 2025 "(i) Directing the defendants to vacate and han dover the suit schedule property to the plaintiff withir two months from the date of this judgment. (ii) Directing the defendants to pay a surr ol Rs 5,856.40/- p.m. which is the quantum of r(:rt on the date of tennination notice towards past lnesne profits for the month of December, 2014 alonl:, with interest at 12o/o p.a. frorn the date of the suit tLll the dale of realization. (iii) The plaintiff shall file a separate appli:ation un,ler Order XX Rule 12 of CPC to cnquire for asceftaining future mesne profits."

4. Aggrieved by the Judgment and 0"....63te,l 17.0\.2023 in O.S.No.454 of 2014, the appellant filed A.S.No.24 of 2023 against the respondents and the same was dismissed lile impugned judgment dated 03.02.2025, directing the appellarrt to vacate the suit property within two months from the date of that order. Challenging the same, this Second Appeal is flled

5. Heard Sri P.Ram Chander, Ieamed counsel representing Sri Raj Kiran Pagadala, learned counsel for the appellanl and Sri Manj ari S Ganu, leamed counsel for respondent I'1o.1, who is on caveat. J LNA, J S,A.No.151of2025

6. Learned counsel for the appellant submitted that the first appellate Court 't'ide jttdgment dated 03'02'2025 dismissed A.S.No.24 of 2023 on merits stating that no arguments were advanced by the appellant. He further submitted'that as per Order XLI, Rule 17 of CPC, the appellate Court can dismiss the appeal for default, ifthe appellant do not appear on the date fixed for hearing' However, the Court cannot decide the matter on merits' '7. Learned counsel for the appellant relied upon the judgment of the Hon'ble Supreme Courl in Prabodh Ch' Das and Anr,v.SmlMahamayu Das and Orsl, wherein, it is held that the Court cannot dismiss the appeal on merits, where the appellant remains absent on the date hxed for hearing' He also relied upon the judgment of the erstwhile High Court of Andhra Pradesh in SKAzgarati Vs.Sk.Nazir Basha2, wherein, it is held that in view of the clear language of Order XLI, Rule 17 of the code of Civil Procedure (for short, 'CPC'), the appellate Court .could have dismissed the appeals for default but cannot pronounce judgment on merits. Therefore, ifthe appellant does not appear on the date fixed for hearing, the first appellate Court can dismiss the appeal for I AIR zo2o SUPREME couRT 178 ' 2007 6 ALT lz; 2007 o supreme (AP) 560 4 LNA, J S.,l.A o.151 oJ 2025 default. Flowever, cannot decide the appeal on lnedts without hearing the appellant.

8. Leamed counsel for the appellant placed on rerlord, the proceedings of the trial Court dated 05.12.2024, u'herein, it is recorded that the appellant was absent. No repres,:ntation despite keeping pass over till end of trial work since morring. Hence, the Court treated no arguments on behalf of the appellant and thereafter, proceeded to hear the matter on behallof leamed counsel for respondent and passed the judgment on merits

9. Learned counsel for the appellant further sutrmitterl that the first appellate Courl committed grave eror in dismi;sing the appeal on merits, without giving an opportunity of hearing to the appellant and without appreciating the facts of the case in a ptoper perspective and prayed to set aside the impugned older and remand back the Inatter to the first appellate Court for fresh rrdjudir:ation.

10. Leamed counsel for respondent No. 1 did not dispute the above factual aspects and did not oppose remand of the matter.

11. Having considered the submissions made by leamed counsel for the appellant as well as learned counsel for respondent, it is 5 LNA, J S.A.No.l5I oJ2025 appropriate to refer to Order XLI, Rule 17 of CPC, which reads as under: "A reading of Order XLI Rule 17 of CPC wou[d manifest that if the appellant does not appear trn the day when the appeal is posted for hearing, the Court can dismiss the appeal for default. However, the Court cannot adjudicate the appeal on mcrits and pass judgrnent without heanng the appcllant".

12. In the present case, it is specific case of appellant that the matter was posted to 03.02.2025 on which date, there was no representation on behalf of appellant and no submissions were made by his counsel on his behalf. However, the first Appellate Court proceeded with adjudication of appeal on merits and passed impugned order which is contrary to mandate under Order XLI, Rule 17 of CPC. 1 3. In the light of the judgment of the Hon'ble Supreme Court in Prabodh Ch. Das (first cited supra) and the judgment of erstwhile the High Court of Andhra Pradesh rn SK.Azgarali (second cited supra), it is to be held that the impugned order passed by the first appellate Court adjudicating the appeal on merits without hearing L 6 T-NA, J S.A.No.l5I t'f 202 5 the appellant is contrary to Order XLI, Rule 17 of CPC and hence, unsustainable and is liable to be set aside.

14. In the result, Second Appeal is allowed and the matter is remitted back to the XXVII Additional Chief Jrldge, City Civil Court, at Secunderabad, with a direction to adj uclicate the appeal i.e., A.S.No.24 of 2023 afresh by duly affording ar opportunity of hearing to both the parties and pass appropriate orders, accordance with law, preferably within a period of four months from the date of receipt of a copy of this order. There shall be no order as to costs. Pending miscellaneous applications, if ary. shall stand closed. i SD/. MOHD.ISMAIL DEPUTY REGISTRAR I //TRUE COPY// Note:- As per the Letter dated 29-08-2025 a copy has been marked to "XXVIl Additional Chief Judge, City Civil Court, Secunderabad" in the Judgment dated 03-04-2025 passed in S.A.No. 151/2025. This Amended Judgment copy Substitutes the earlier Judgment dispatched on 22-07-2.025. SECTION OFFICER .. SD/- MOHD.ISMAIL REGTSTRAR 1TT" 'prdr-\*a*,*a To,

1. The XXVII Additional Chief Judge, City Civil Court, Se<:,underabad. 2. The lll Senior Civit Judge, City Civil Court, Secunderatrad --: -- '-::.*:.-::1Wl?eXXf:-- r:li-.- - -*':-"":"'.::' .:--i-:..'..-*.*-.-:lr-:ia-.:Ei*M

3. One CC to SRl. RAJ KIRAN PAGADALA Advocate [OPUC] 4. One CC to SMT. MANJART S GANU Advocate tOpUCl 5. Two CD Copies \ \ IN/ PSL HIGH COURT DATED:0310412025 \ ,aa': \. c 1E SEi) 205 l 6 7 ,'/ i.:. ..7 t I I fffYEu>eNUDGMENT SA.No.151 of 2025 \:-), \AT \-, ALLOWING'tHE APPEAL 1 r6 x( q