High Court of Gujarat

JOGENDRASINH PRAHLADSINH PATELversusRAJESH CHINUBHAI PATEL

Disposal: 39-RULE DISCHARGED/DISMISSED @ FH
Bench: ILESH VORAR T VACHHANI

Holding

The appeal is dismissed for the appellant’s default under Order 41 Rule 17 of the CPC.

Summary

The appellants filed two first appeals under Section 96 of the Civil Procedure Code challenging orders that dismissed their plaints under Order 7 Rule 11. Both appeals were listed as old matters and the appellants, despite being served notice after their counsel retired, failed to appear before the court. The judges observed that the appellants showed no interest in pursuing the appeals. Accordingly, invoking the power conferred by Order 41 Rule 17 of the CPC, the court dismissed both appeals for default. No order as to costs was made.

Issues considered

Can an appeal be dismissed for default when the appellant fails to appear despite service of notice under Order 41 Rule 17 of the CPC?

Legislation cited

Code of Civil Procedure, 1908s. Order 41 Rule 17, s. Order 7 Rule 11, s. Section 96

Subjects

Civil Procedure CodeSection 96Order 7 Rule 11Order 41 Rule 17appeal dismisseddefaultnon‑appearancecourt procedure

Judgment

       C/FA/615/2016                               ORDER DATED: 08/07/2026




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                     R/FIRST APPEAL NO. 615 of 2016
                                 With
                     R/FIRST APPEAL NO. 727 of 2013
==========================================================
                JOGENDRASINH PRAHLADSINH PATEL & ANR.
                               Versus
                    RAJESH CHINUBHAI PATEL & ORS.
==========================================================
Appearance:
ADVOCATE NOTICE SERVED for the Appellant(s) No. 2
ADVOCATE NOTICE UNSERVED for the Appellant(s) No. 1
MR BHARAT JANI(352) for the Defendant(s) No. 8
MR BN LIMBACHIA(3454) for the Defendant(s) No. 5
MR. JAY M THAKKAR(6677) for the Defendant(s) No. 7
RULE SERVED for the Defendant(s) No. 1,2,3,4,6,9
==========================================================

     CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
           and
           HONOURABLE MR. JUSTICE R. T. VACHHANI

                             Date : 08/07/2026

                   COMMON ORAL ORDER
 (PER : HONOURABLE MR. JUSTICE ILESH J. VORA)


Order in First Appeal No.615 of 2016

1.      This first appeal filed under Section 96 of The Civil Procedure
Code, challenging the impugned judgment and decree dated 16.01.2016
passed in Special Civil Suit No.532 of 2012, whereby the 3 rd Additional
Senior Civil Judge, Ahmedabad (Rural) was pleased to reject the plaint
under Order 7 Rule 11 of the CPC.

2.      The appeal has been listed in the category of old matters. The
advocate notice after retiring of the counsel on record, has been served.
Since long, none is appearing for the appellants. When matter called out,
neither the appellants, nor any counsel on their behalf, have appeared to
assist the court. The conduct of the appellants shows that, after filing the
appeal, they are not interested to pursue the appeal proceedings. In such



                                 Page 1 of 2
            C/FA/615/2016                                                   ORDER DATED: 08/07/2026




   circumstances, we have no option but to dismiss the appeal by exercising
   power under Order 41 Rule 17 of the CPC.

   3.       Accordingly, the appeal stands dismissed for the appellant’s default
   under Order 41 Rule 17 of the CPC. There shall be no order as to costs.

   Order in First Appeal No.727 of 2013

   1.       This first appeal filed under Section 96 of The Civil Procedure
   Code, challenging the impugned judgment and decree dated 05.01.2013
   passed in Special Civil Suit No.594 of 2012, whereby the 10 th Additional
   Senior Civil Judge, Ahmedabad (Rural) was pleased to reject the plaint
   under Order 7 Rule 11 of the CPC.

   2.       The appeal has been listed in the category of old matters. The
   advocate notice after retiring of the counsel on record, has been served.
   Since long, none is appearing for the appellants. When matter called out,
   neither the appellants, nor any counsel on their behalf, have appeared to
   assist the court. The conduct of the appellants shows that, after filing the
   appeal, they are not interested to pursue the appeal proceedings. In such
   circumstances, we have no option but to dismiss the appeal by exercising
   power under Order 41 Rule 17 of the CPC.

   3.       Accordingly, the appeal stands dismissed for the appellant’s default
   under Order 41 Rule 17 of the CPC. There shall be no order as to costs.


                                                                                    (ILESH J. VORA,J)



                                                                                  (R. T. VACHHANI, J)
   TAUSIF SAIYED


Original copy of this order has been signed by the Hon'ble Judges.
Digitally signed by: TAUSIFAHMED SAIYED(HC01401), PRIVATE SECRETARY, at High Court of Gujarat on 10/07/2026 17:08:50
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