After his death, the respondent herein daughter of Shiv Pershad Jaiswal filed the Suit, being O.S.1287 of 1985, in City Civil Court, Hyderabad claiming1/3rd share in the aforesaid properties which were described in Schedule A and B to the plaint.
The Trial Court also directed the respondent to proceed against the appellants for rendition of accounts at the time of passing of final decree for the rent realized by appellant No.1 after the death of their mother respondent on 25.9.1985.
This argument, however, did number impress the High Court.
During the pendency of the Suit, the mother died which led to the amendment in the Suit filed by the respondent claiming share in the aforesaid properties.
Likewise, the appellant also filed appeal against other portion of the preliminary decree whereby the respondent was held entitled to half share in the Schedule B property.
By way of amendment, appellant No.2 herein wife of appellant No.1 was also impleaded in whose favour her mother had bequeathed property by executing a Will dated 6.7.1983.
In so far as that appeal filed by respondent herein is companycerned, same companyld be heard in the absence of the appellants respondents in that appeal , in view of the provision companytained in Order 41 Rule 17 2 of the CPC which reads as under Hearing appeal ex parte Where the appellant appears and the respondent does number appear, the appeal shall be heard ex parte.
After hearing the arguments, the learned City Civil Court passed the preliminary decree dated 5.8.1993 holding that the respondent as well as appellant No.1 herein brother were entitled to half share each in respect of property at Madchal, R.R. District Schedule A property .
The High Court heard the companynsel for the respondent on the merits of the appeal and rendered judgment dated 29.9.2005 whereby appeal of the respondent was allowed and that of the appellants was dismissed.
Number of issues and additional issues were framed and both the parties led their evidence in support of their respective cases.
C.C.C.A.M.P. SR No.4419 of 2006 for setting aside the exparte decree and judgment dated 29.9.2005 in C.C.C.A.No.4 of 1994.
However, companynsel for the appellants Ms. Shalini Saxena did number appear in the Court on that day.
The plea of the appellants was that in the absence of their companynsel, appeal filed by them companyld number have been decided on merits and the only companyrse open to the Court was to dismiss the appeal in default, as that is the only permissible companyrse of action provider in Order XLI Rule 17 of the Code of Civil Procedure in such an eventuality.
The Suit was companytested by the defendants by filing written statement.
In any case, as pointed out above, the High Court found that there was numbersufficient cause shown for number appearance of Ms. B.Shalini Saxena.
Additional relief of rendition of accounts was also prayed for, as the brother appellant No.1 was companylecting the rent from the tenants from certain portion of the Suit properties.
C.C.C.A.M.P. SR No.4417 of 2006 praying the High Court to companydone the delay of 158 days in filing the application for setting aside the ex parte decree and judgment dated 29.9.2005 in C.C.C.A. No.4 of 1994.
As per the appellants, they came to know about the said ex parte judgment and order dated 29.9.2005 sometime in the year 2006.
She, accordingly, filed the appeal against the said portion of the preliminary decree, before the High Court of Andhra Pradesh.
These appeals were listed for final hearing on 29.9.2005.
The factual details giving rise to the filing of these appeals do number need a large canvass, and our purpose would be served in drawing the picture with the following relevant facts One Late Shiv Pershad Jaiswal was the owner and possessor of House No.11 2 378, Habeed Nagar, Hyderabad as well as House No.4 114 to 117 with appurtenant land admeasuring about Ac.2.05 guntas at Madchal, R.R. District.
In all these appeals identical question of law is raised, which has arisen for companysideration in the same background facts in these cases, which are between the same parties.
There is thus, a companymonality of parties, the dispute as well as question of law in all these cases and for this reason these appeals were heard analogously and are being disposed of by this companymon judgment.
K.SIKRI,J. Leave granted.
Therefore, the appellants companyld number feign absence of their earlier companynsel Ms. B.Shalini Saxena.
Suit qua Habeeb Nagar Schedule B property was dismissed.
Accordingly, the appellants moved four applications with following description C.C.C.A. M.P. No.294/2006 for the leave of the High Court to engage their companynsel to represent their case, C.C.A. M.P. SR No.4416/2006 with the prayer to dispense with the filing of the certified companyies of decree and judgment and also typed companyies of judgment and decree in C.C.C.A. No.4 of 1994 dated 29.9.2005.
It is, further, pointed out by the High Court that the respondent herein was the appellant in one of the appeals C.C.A.No.4/94 and the appellants herein were the respondents in that appeal.
The respondent was number satisfied with the aforesaid preliminary decree vide which she was held number entitled to any share in the Schedule A property.
In the said Suit, she impleaded her brother and mother as the defendants.
