1 2025:CGHC:53793 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MA No. 118 of 2024 1 - Santlal @ Santu S/o Late Jagarsai, Aged About 50 Years -----(Def. No. 1(B)) 2 - Santosh Kumar S/o Vishnu Ram, Aged About 20 Years -----( LRs. Of Def. No. 1(C)/applicant No.3(B)) 3 - Mohan Ram S/o Late Jagarsai, Aged About 35 Years -----(Def. No. 1(D)) 4 - Ku. Geeta D/o Late Kishun , Aged About 22 Years-----(Def. No. 1(E)) Appellants are R/o Barhkapara, Surajpur, P.S., Tahsil And District- Surajpur (C.G.) ... Appellants(s) versus 1 - Somarsai S/o Late Bahbulla, Aged About 42 Years R/o Barhkapara, Surajpur, P.S., Tahsil And District-Surajpur (C.G.) -----(Lrs. Of Plaintiff) 2 - Suresh Kumar S/o Late Bahbulla, Aged About 31 Years R/o Barhkapara, Surajpur, P.S., Tahsil And District-Surajpur (C.G.) -----(Lrs. Of Plaintiff) 3 - Savitri Wd/o Vishnu Ram, Aged About 65 Years R/o Barhkapara, Surajpur, P.S., Tahsil And District-Surajpur (C.G.) -----(LRs. Of Def. No. 1(C)/applicant No.3 (A)) SHYNA AJAY Digitally signed by SHYNA AJAY DN: cn=SHYNA AJAY, o=PERSONAL, st=Chhattisgarh, c=IN 2 4 - State Of Chhattisgarh, Through- Collector Surajpur, District-Surajpur (C.G.) -----(Defendant No.2) ... Respondent(s) (Cause Title downloaded from CIS Periphery) For Appellant(s) : Ms. Priyanka Mehta, Advocate For Respondent No.1 For Respondent /State : : None Mr. Rajeev Bharat, Government Advocate SB.: Hon'ble Mr. Justice Deepak Kumar Tiwari Judgment On Board 04/11/2025 1. This appeal has been preferred against the order dated 24.8.2024 passed by the First District Judge, Surajpur, District Surajpur (CG) in Civil MJC No.28/2019, whereby the application preferred by the appellant under Order 41 Rule 19 of the CPC for readmission of Civil Appeal {First Appeal} Case No.14A/2006, which had been dismissed in default vide order dated 30.5.2018 due to non- appearance of the appellants and for non-compliance with the per-emptory order, has been dismissed. 2. Necessary facts of the case are that the appellants challenged the judgment and decree dated 14.10.2003 passed by the Civil Judge Class-II, Surajpur in Civil Suit No.70A/90 (Bahubulla Vs. Legal Heirs of Jagar Sai – (a) Ramlal and others), whereby the suit preferred by late Bahubulla was decreed in his favour holding that late Bahubulla is also entitled, equally with late Jagar Sai, to a 3 1/5th share in the subject property. It was further directed that partition of the house and the agricultural land be effected in accordance with law. Against the said judgment and decree, the Legal Heirs of Jagar Sai/defendants preferred Civil Appeal Case No.14-A/2006. During pendency of the appeal, Bahubulla died and his legal heirs i.e. respondents 1 & 2 were brought on record as parties. On the date of hearing i.e. 30.5.2018, neither the appellants were present nor was their counsel present to represent their case. Moreover, since one of the legal heirs of late Bahubulla namely Suresh Kumar (respondent No.2 herein) was not served, the concerned Court, on an earlier date of hearing, had directed the appellants to take steps for service by an alternate mode. However, the appellants failed to take suitable steps by not filing an application under Order 5 Rule 20 of the CPC. Ultimately, due to absence of the appellants and non- compliance with the earlier order, the appeal was dismissed for default on the said date. Thereafter, an application has been preferred for restoration of the appeal and the same was also dismissed vide impugned order dated 24.8.2024. In the said proceeding also, respondent No.2- Suresh Kumar remained ex- parte. Hence, this appeal. 3. Learned counsel for the appellants would submit that the Appellate Court has grossly erred by passing the impugned order, holding that the appellants failed to show sufficient cause for their non-appearance on 30.5.2018. She would further submit that in 4 the catena of decisions of the Hon’ble Supreme Court, it has been held that while considering such application, the Court(s) ought to adopt a liberal approach and decide the lis preferably on merits. She would submit that the dismissal of an appeal on merits is wholly different from dismissal of an appeal for default. A dismissal after hearing the litigant is always preferred over dismissal of a case behind the back of the litigant. She would submit the appellants had duly engaged a lawyer, but the lawyer did not take appropriate steps in time for filing an application for substituted service. Therefore, there is no fault on the part of the appellants. She would further submit that even during the Civil Appeal, respondent No.2 remained ex-parte. In support of her submissions, learned counsel for the appellants places reliance on the decision rendered in the matter of Commissioner, Mysore Urban Development Authority Vs. S.S. Sarvesh, reported in (2019) 5 SCC 144 and refers to para 17 thereof, which reads as under : 17. Vivian Bose, J., speaking for the Bench, in his distinctive style of writing made the following observations while dealing with the case arising out of Order 9 and reminded the courts of their duty while deciding the case. The observations are apt and read as under: (AIR p. 429, paras 16-17) “16. … a code of procedure must be regarded as such. It is ‘procedure’, something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation 5 should therefore be guarded against (provided always that justice is done to ‘both’ sides) lest the very means designed for the furtherance of justice be used to frustrate it. 17. … our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.” Therefore, considering the above backdrop, learned counsel for the appellants prays that the appeal be restored 4. Heard learned counsel for the parties at length and also perused the record with utmost circumspection. 5. Against the judgment and decree dated 14.10.2003, the appellants have preferred Civil Appeal {First Appeal} Case No.14A/2006 before the concerned First Appellate Court. On an earlier date of hearing, since the service had not been effected on one of the respondents i.e. respondent No.2, the First Appellate Court had directed substituted mode of service. However, on the subject date of hearing i.e. 30.5.2018, neither the counsel for the appellants appeared nor were the earlier directions complied with by them. Ultimately, the First Appellate Court dismissed the appeal for default on the said date. 6. The First Appeal is a benevolent right of an appellant. When a 6 party has duly engaged a lawyer, no fault can be attributed to the litigant concerned. In the instant case, since on the date of hearing, neither the concerned lawyer appeared nor did he inform the appellants about the requirement of their personal appearance, this Court is of the view that the First Appellate Court adopted a hyper-technical approach in dismissing the application for restoration of the main appeal, which had been dismissed for default. Moreover, the appellants have shown sufficient cause for their non-appearance on the subject date. 7. Accordingly, Civil Appeal Case No.14A/2006 is restored to its original number. The concerned Court is directed to decide the same on merits in accordance with law. 8. Since respondent No.2 has not entered appearance before the concerned First Appellate Court, the appellants are directed to take suitable steps in accordance with law by paying due process fee for the presence of respondent No.2 before the said Court. 9. The parties shall remain present before the First Appellate Court on 10.12.2025. 10. With the aforesaid directions/observations, the Appeal is disposed of. 11. Consequently, all the pending applications also stand disposed of. Sd/- (Deepak Kumar Tiwari) Judge Shyna