Gujarat High Court
Pathuji Gulabji Thakor vs Thakor Mafaji Nathaji on 7 October, 2025
NEUTRAL CITATION
C/SA/131/2019 ORDER DATED: 07/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 131 of 2019
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PATHUJI GULABJI THAKOR
Versus
THAKOR MAFAJI NATHAJI & ORS.
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Appearance:
MR. YOGENDRA THAKORE(3975) for the Appellant(s) No. 1
MR JV VAGHELA(5809) for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 07/10/2025
ORAL ORDER
1. The present Second Appeal has been filed challenging the order passed below Exhibit 1 in Regular Civil Appeal No.43 of 2017, whereby the matter was dismissed for default.
2. The Coordinate Bench by an order dated 05.04.2019 had framed substantial questions of law while admitting the appeal which are as under:
"(A) Whether Courts below were right in not decreeing the suit filed by the appellant? (B) Whether the appellate Court had erred in violating Order 41 Rule 31 of the Code of Civil Procedure while exercising appellate powers? (C) Whether the appellate Court had erred in dismissing the appeal for default? (D) Whether the Appellate Court had erred in interpreting Order 41 Rule 17(1) while dismissing the appeal for default?"Page 1 of 3 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 01:24:30 IST 2025
NEUTRAL CITATION C/SA/131/2019 ORDER DATED: 07/10/2025 undefined
3. The said appeal was filed by the unsuccessful plaintiff challenging the judgment and decree passed in Regular Civil Suit No.82 of 2011 and thereafter the said appeal has been dismissed for default and the same is not decided on merits.
4. Considering the substantial questions of law, it would be in the interest of justice, if the first appeal is decided on merits, in view of the fact that the appellants advocate could not remain present and therefore the said appeal was dismissed. Considering the substantial questions of law which are framed by the Coordinate Bench, this Court is of the opinion that, in the interest of natural justice, it would be required that the First Appellate Court to decide the same on merits. In view of the fact that the said first appeal has been dismissed for default, there was no occasion for the Appellate Court decide the same and therefore the it cannot be said that there was violation of Order 41 Rule 31 of the Code of Civil Procedure, 1908.
5. Moreover, the fact remains that the said appeal has been decided in absence of the appellant herein and therefore also it would be in the interest of justice, the said appeal is remanded to the First Appellate Court to decide the same on merits.
6. Learned advocate for the respondent has also argued that no sufficient grounds have been stated in the appeal to justify the absence of the appellant at the time of hearing of the said first appeal.
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7. Having heard learned advocates appearing for the respective parties and having considered the order passed below exhibit 1 in Regular Civil Appeal No.43 of 2017 and taking into consideration the substantial questions of law which have been framed, this Court is of the view that considering the interest of both the parties and also in the interest of natural justice, the matter be remanded to the Appellate Court to decide the same expeditiously. In view of the fact that the said appeal is of the year 2017, the said appeal be decided by the First Appellate Court on or before 21.01.2026.
8. In view of the same, the present Second Appeal is accordingly ydisposed of. The judgment and decree passed below Exhibit 1 in Regular Civil Appeal No.43 of 2017 is quashed and set aside. In view of the disposal of the main matter, the civil application is accordingly disposed of.
(SANJEEV J.THAKER,J) URIL RANA Page 3 of 3 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 01:24:30 IST 2025