Madhya Pradesh High Court
Rakesh Jain vs Gopaldas Gupta on 5 August, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:16511
1 MCC-2605-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 5 th OF AUGUST, 2025
MISC. CIVIL CASE No. 2605 of 2025
RAKESH JAIN
Versus
GOPALDAS GUPTA
Appearance:
Shri Rajendra Jain - Advocate for the applicant.
ORDER
The Office has listed this case on the question of maintainability.
2 . This application has been filed under Order 41 Rule 19 of CPC for
readmission of Second Appeal No.31/2004 which was decided on merits by this
Court by order dated 11.03.2025.
3. It is submitted by counsel for applicant that this application has been
filed erroneously under the provisions of Order 41 rule 19 of CPC whereas it
should have been filed under Order 41 Rule 21 of CPC and therefore, it is prayed
that this application may be treated as an application under Order 41 Rule 21 of
CPC.
4. It is submitted by counsel for applicant that applicant had duly appointed
his counsel but it appears that the counsel for the applicant did not appear before
this Court when the case was called for hearing and as a result, the case was heard
in the absence of counsel for the applicant who was respondent in S.A.
No.31/2004. It is submitted that it is well established principle of law that no
litigant should suffer on account of mistake of his counsel, therefore, it is prayed
that the Second Appeal No.31/2004 may be restored to its original file for
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rehearing.
5. Heard learned counsel for the applicant.
6. Order 41 Rule 21 of CPC reads as under :
"21. Re-hearing on application of respondent against whom
ex parte decree made.- Where an appeal is heard ex parte
and judgment is pronounced against the respondent, he may
apply to the Appellate Court to re-hear the appeal; and, if he
satisfies the Court that the notice was not duly served or that
he was prevented by sufficient cause from appearing when
the appeal was called on for hearing, the Court shall re-hear
the appeal on such terms as to costs or otherwise as it
thinks fit to impose upon him."
7. The respondent was represented by Shri Anil Sharma, Advocate on
multiple dates, but ultimately on 11.03.2025, none appeared for the respondent. It
appears that the landlord had filed a suit for eviction of the applicant on the ground
of arrears of rent, denial of title and bonafide need for non-residential purposes.
Although the suit filed by the plaintiff was decreed by the Trial Court but the
appeal filed by appellant was allowed by the Appellate Court and suit filed by the
plaintiff was dismissed. Being aggrieved by judgment and decree passed by the
Appellate Court, the plaintiff/landlord had filed second appeal which was pending
since 2004. The second appeal was admitted by order dated 23.11.2007. The
second appeal was pending for the last 21 years but having succeeded in the civil
appeal, the applicant who was respondent in Second Appeal No.31/2004 was
trying very hard to avoid the hearing of the case.
8. Be that whatever it may be.
9. Once the respondent was represented by his counsel Shri Anil Sharma
and thereafter none appeared for the respondent at the time when the appeal was
heard, the only question for consideration is as to whether there was any sufficient
cause for the respondent or his counsel not to appear at the time when the case was
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heard finally ?
10. In the application which has been filed under Order 41 Rule 19 CPC
(according to the applicant it should have been filed under Order 41 Rule 21
CPC), nothing has been mentioned by the applicant as to why his counsel did not
appear when the case was called. The entire application has been filed touching
the merits of the case. In absence of any reason for non appearance of counsel for
applicant when the case was called, this Court is of the considered opinion that no
case is made out for rehearing of Second Appeal No.31/2004.
11. At this stage, it is submitted by counsel for applicant that since earlier
counsel for applicant had not appeared in spite of due authority by the applicant,
therefore, applicant should not suffer on account of mistake on the part of his
counsel.
12. Considered the aforesaid submission made by counsel for the
applicant.
13. Merely because the party should not suffer on account of mistake of
counsel would not mean that a blanket license has been given to counsel for the
respective parties to commit mistake so that the clock may be set back thereby
frustrating the very purpose of hearing of appeals. The case was specifically
mentioned in the cause list. In spite of that if the counsel for applicant had decided
not to appear and if in the application filed under Order 41 Rule 19 CPC, which
according to applicant should have been filed under Order 41 Rule 21 CPC, no
reason has been assigned for non-appearance of counsel for applicant, this Court
is of the considered opinion that the parties cannot be permitted to hijack the
proceedings of the Court under the mistaken belief that they would not be made to
suffer on account of their counsel. Whenever the case is called for hearing, it is
the bounded duty of the counsel or its party to appear and argue the matter. The
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hearing of the cases cannot be left with mercy of the parties so that they may file
an application for rehearing of appeal without assigning any good reason for the
absence of their counsel at the time when the case was called.
14. It is submitted by counsel for applicant that if this Court is not inclined
to restore the Second Appeal No.31/2004 to its original file and is also not
inclined to rehear the appeal on merits, then liberty may be granted to the
applicant to sue his earlier counsel for the loss sustained by the applicant on
account of his non appearance.
15. Subject to maintainability of such suit, the aforesaid prayer sought by
applicant is hereby granted.
16. As no good cause has been pointed by applicant for non appearance of
the applicant or his counsel on the date when the case was called for hearing, no
case is made out for rehearing of Second Appeal No.31/2004.
17. Accordingly, the MCC fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
Aman
