VITTHALBHAI JIVABHAI MOCHI Vs. SHANTIBHAI KACHARABHAI MOCHI

JUDGEMENT

(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.) 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.