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?"
NEUTRAL CITATION
C/SA/131/2019 ORDER DATED: 07/10/2025
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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.
NEUTRAL CITATION
C/SA/131/2019 ORDER DATED: 07/10/2025
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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
