1. The present second appeal u/s.100 of the Code of Civil Procedure has been preferred by the appellant herein - original plaintiff to quash and set aside the impugned judgement and order dated 07/10/2011 passed by learned Appellate Court i.e. learned 4th Additional District Judge, Ahmedabad (Rural) in Regular Civil Appeal No.49 of 2006, by which, learned Appellate Court has dismissed the said appeal on merits in absence of appellant herein and/or his advocate. As the present second appeal is in very narrow compass, this Court has not considered the facts in detail and considered the facts, which are necessary for determining the present second appeal.
2. The appellant herein - original plaintiff initially instituted First Appeal before this Court challenging the judgement and decree passed by learned Trial Court. However, in view of the amendment in the Rules, the same came to be transferred to the Court of District Court, Ahmedabad (Rural), which was numbered as Regular Civil Appeal No.49 of 2006. It appears that the date on which the Appellate Court passed the impugned judgement and order, appellant herein and/or learned advocate appearing on behalf of the appellant remained absent i.e. on 07/10/2011 and, therefore, learned Appellate Court has dismissed the said appeal on merits by impugned judgement and order in absence of the appellant and/or his advocate. Being aggrieved by and dissatisfied with the impugned judgement and order passed by learned Appellate Court in dismissing the said appeal on merits in absence of the appellant herein and/or his advocate, the appellant herein - original plaintiff has preferred the present second appeal u/s.100 of the Code of Civil Procedure.
3. Ms.Megha Jani, learned advocate appearing on behalf of the appellant herein - original plaintiff has submitted that considering Order 41 Rule 17 of the Code of Civil Procedure, in case the appellant and/or his advocate has chosen to remain absent, in that case, the Appellate Court can only dismiss the appeal for default and he cannot enter into the merits and dismiss the appeal on merits. In support of her above submissions, she has relied upon decision of the Hon'ble Supreme Court in the case of Secretary, Department of Horticulture, Chandigarh V/s. Raghu Raj reported in 2009(1) GLH 457 as well as decision of Division Bench of this Court in the case of Shantilal Chandrashanker V/s. Bai Basi Widow of Bhura Anop reported in 1975 GLR 1 as well as decision of learned Single Judge of this Court in the case of Jitendrakumar Maganbhai Patel V/s. Parashottamdas Govindbhai Patel reported in 1993(2) GLH 738. By making above submissions and relying upon above decisions, it is requested to allow the present second appeal and to quash and set aside the impugned judgement and order passed by learned Appellate Court.
4. Mr.N.V.Gandhi, learned advocate has appeared on behalf of contesting respondent No.1. Respondent Nos.2 to 5, 7/1 and 7/2 have refused to accept the notice of this Court. Though served, nobody appears on behalf of respondent Nos.6/1, 7/3 and 8.
5. Mr.N.V.Gandhi, learned advocate appearing on behalf of respondent No.1 is not in a position to dispute the above. He is also not in a position to show any decision contrary to the decisions relied upon by learned advocate appearing on behalf of the appellant. However, relying upon the decision of Division Bench of this Court in the case of Shantilal Chandrashanker (supra), Mr.Gandhi, learned advocate appearing on behalf of respondent No.1 has submitted that at the most order passed by learned Appellate Court can be treated as order dismissing the appeal for default and to that extent the impugned judgement and order passed by learned Appellate Court can be modified.
Ms.Megha Jani, learned advocate appearing on behalf of the appellant herein has submitted that in that case liberty may be reserved in favour of the appellant herein to submit an appropriate application for readmission of the appeal and/or restoration of the appeal and/or quashing and setting aside the order dismissing the appeal for default, which may be directed to be considered in accordance with law and on merits.
6. Heard learned advocates appearing on behalf of the respective parties at length. It is not in dispute that by impugned judgement and order learned Appellate Court has dismissed the appeal preferred by the appellant herein on merits in absence of the appellant herein and/or his advocate. As held by Hon'ble Supreme Court in the case of Secretary, Department of Horticulture, Chandigarh (supra) as well as Division Bench of this Court in the case of Shantilal Chandrashanker (supra), the Appellate Court has no jurisdiction to dismiss the appeal on merits in a case where both the appellant and/or his advocate have remained absent. The only order, which can be passed by learned Appellate Court is to dismiss the appeal for default. Under the circumstances, the impugned judgement and order dismissing the appeal on merits cannot be sustained and the same deserves to be quashed and set aside. As observed by Division Bench of this Court in the case of Shantilal Chandrashanker (supra) more particularly in Para - 12, the only order which the Appellant Court can pass in such circumstances is to dismiss the appeal for default. Under the circumstances, the impugned judgement and order passed by learned Appellate Court is to be treated as dismissal of the appeal for default and to that extent the impugned judgement and order passed by learned Appellate Court deserves to be modified.
7. At this stage, Ms.Megha Jani, learned advocate appearing on behalf of the appellant has requested to continue the order of status quo for a period of three weeks so as to enable the appellant herein to submit appropriate application for readmission of the appeal and/or restoration of the appeal and/or quashing and setting aside the order dismissing the appeal for default and praying for interim relief. In the facts and circumstances of the case, the parties are directed to maintain status quo as on today till 23/05/2012, without prejudice to the rights and contentions of the respective parties in the application, that may be submitted by the appellant herein. It is observed that learned Appellate Court to consider the application submitted by the appellant, if any, in accordance with law and on merits and without in any way being influenced by the present order of extending status quo till 23/05/2012.
8. In view of the above and for the reasons stated hereinabove, the present second appeal succeeds. The impugned judgement and order dated 07/10/2011 passed by learned Appellate Court i.e. learned 4th Additional District Judge, Ahmedabad (Rural) in Regular Civil Appeal No.49 of 2006 in dismissing the appeal on merits is modified to the extent treating the said order as dismissing the appeal for default and any observations made by learned Appellate Court on merits of the case shall be disregarded.
Now so far as request made by Ms.Megha Jani, learned advocate appearing on behalf of the appellant to submit an appropriate application for readmission of the appeal and/or restoration of the appeal and/or quashing and setting aside the order dismissing the appeal for default and praying for interim relief is concerned, it goes without saying that and it is observed that as and when any application is made, the same be considered in accordance with law and on merits and all the defences available to the respective parties are kept open, which shall be dealt with /considered by learned Appellate Court at the time of deciding such application, for which, this Court has not expressed any opinion on merits. With this, the present second appeal is partly allowed to the aforesaid extent.
9. In view of the disposal of the main second appeal, no order in Civil Application No.2738 of 2012 and the same is also accordingly disposed of.
[M.R.SHAH,J] *dipti Top