Durlabhji Lalji Rangparia ... vs Gordhan Amarshi
2021 Latest Caselaw 13559 Guj

      C/SA/88/2021                                ORDER DATED: 07/09/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/SECOND APPEAL NO. 88 of 2021

                                 With
              CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
                   In R/SECOND APPEAL NO. 88 of 2021
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                     DURLABHJI LALJI RANGPARIA (PATEL)
                                  Versus
                       GORDHAN AMARSHI & 10 other(s)
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Appearance:
MR ASHISH M DAGLI(2203) for the Appellant(s) No. 1
MR YN RAVANI(718) for the Respondent(s) No. 10,11
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,2,3,4,5,6,7,8,9
NOTICE SERVED(4) for the Respondent(s) No. 3,4,5,6
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 CORAM:HONOURABLE MR. JUSTICE S.H.VORA

                              Date : 07/09/2021

                               ORAL ORDER

By way of present Second Appeal, the appellant - original plaintiff have prayed for the following reliefs, more particularly, prayer clause 12(B) which reads thus:

"12(B) Allow this Second Appeal by quashing and setting aside the Judgment and order passed by District court in Reg. Civil Appeal No.23 of 2010 dated 14.8.2019 and also be pleased to quash and set aside order passed by learned Judge in Reg. Civil suit No.127 of 2002 decided on 30.09.2010 in the interest of justice."

2. I have heard the learned Advocates appearing for the respective parties.

3. There is no dispute that the order passed below Exhibit-1 in Regular Civil Appeal No.23 of 2010 by the learned Principal

C/SA/88/2021 ORDER DATED: 07/09/2021

District Judge, Morbi is non-speaking order and no any reasons are assigned by the learned first appellate Court while dismissing the appeal preferred by the present appellant.

4. Attention of this Court has been invited to Prabodh Ch. Das and Anr. Vs. Smt. Mahamaya Das & Ors., [AIR 2020 SC 178], more particularly, paragraph 8 and 9 thereof which reads thus:

"8. Order 41 Rule 17(1) of the Code of Civil Procedure is as under: "R.17. Dismissal of appeal for appellant's default.(1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.

[Explanation. Nothing in this subrule shall be construed as empowering the Court to dismiss the appeal on the merits.]"

9. Explanation to subrule (1) of Rule 17 was added by Act 104 of 1976. Prior to 1976 conflicting views were expressed by different High Courts in the country as to the purport and meaning of sub rule (1) of Rule 17 of Order 41 of CPC. Therefore, the explanation was introduced w.e.f 01.02.1977, to clarify the law by making an express provision that where the appellant does not appear, the Court has no power to dismiss the appeal on merits. Thus, Order 41 Rule 17(1) read with its explanation makes it explicit that the Court cannot dismiss the appeal on merits where the appellant remains absent on the date fixed for hearing. In other words, if the appellant does not appear, the Court may if it deems fit dismiss the appeal for default of appearance but it does not have the power to dismiss the appeal on merits."

5. Having regard to the procedure adopted by the learned first appellate Court in dismissing the appeal; without assigning any reasons, the same is beyond the scope of O.41 of CPC and therefore, it is not sustainable in the eye of law and thus the Court is left with no option; but to quash and set aside the order passed by the learned first appellate court while remanding the matter with a direction to the learned first appellate court to hear and decide afresh Reg. Civil Appeal

C/SA/88/2021 ORDER DATED: 07/09/2021

No.23 of 2010 on its own merits and without being influenced by any of the observations made in this order after extending opportunity of hearing to both the sides. It is hoped that the parties to the proceedings shall extend their co-operation in adjudicating the appeal and the learned first appellate Court shall complete such exercise of hearing of the appeal as expeditiously as possible; but not later than six months from the date of the receipt of the writ of this order. It is clarified that this Court has not examined the merits of the matter at this stage and therefore all the contentions are kept open for both the sides to be agitated before the learned first appellate Court.

6. With the aforesaid observations and directions, present Second Appeal stands disposed of.

In view of disposal of Second Appeal, Civil Application would not survive and stands disposed of accordingly.

(S.H.VORA, J) sompura