An appeal cannot be dismissed on merits when the appellant remains absent, as per Order 41 Rule 17(1) of C.P.C.

ORDER :

1. Being aggrieved and dissatisfied with the judgment and order dated 6.1.2020 passed by the learned 5th Additional Principal District Judge, Kheda at Nadiad in Regular Civil Appeal No.79 of 2019 the appellant have filed present Appeal.

2. Heard learned Counsels appearing for the respective parties and perused the record and the impugned judgment and order of the lower Court.

3. From the record it appears that the appeal is decided ex-parte in absence of the learned Counsel appearing for the present appellants before the First Appellate Court and only on that ground the learned Appellate Court has decided the appeal.

4. At this stage, it is appropriate to take into account the issues framed by the learned Trial Court which read as under :

(1) Whether the plaintiffs prove that, the properties described in plaint para 3, are joint ancestral properties of plaintiffs as well as defendants?

(2) Whether the plaintiffs prove that, the suit properties are in their possession?

(3) Whether the plaintiffs are entitled to get relief as prayed for?

(4) Whether the defendants prove that, by mutual understanding, their father got, the suit properties and since then, they are owner and in possession of suit properties?

(5) Whether the defendants prove that, land bearing Survey No. 952 & 958/2 were sold out since back and plaintiffs are very well aver about it?

(6) Whether the suit is time bared?

(7) Whether the suit is suffered for insufficient court fees?

(8) What order and decree?

4.1 The learned Trial Court has given following answers to the above mentioned issues:

1. In negative

2. In negative.

3. In negative

4. In affirmative

5. In affirmative.

6. In affirmative

7. In negative

8. As per final order

5. The learned Appellate Court has framed following issues for consideration:

“1. Whether the appellants prove that Ld. Trial Judge has erred in coming to the conclusion that the properties described in plaint para 3, are joint ancestral properties of plaintiffs as well as the defendants?

2. Whether the appellants prove that the Learned Trial Judge has erred in coming to the conclusion that the suit properties are in possession of plaintiffs?

3. Whether the appellants prove that the Ld. Trial Court has erred in coming to the conclusion that the plaintiffs are not entitled to get relief as prayed for?

4.Whether the appellants prove that the Ld. Trial Court had erred in coming to the conclusion that the defendants prove that, by mutual understanding, their father got the suit properties and since then, they are owner and in possession of suit properties?

5.Whether the appellants prove that the Ld. Trial Court had erred in coming to the conclusion that the defendants prove that, land bearing Survey No. 952 and 958/2 were sold out since long back and plaintiffs are very well aware about it?

6. Whether the appellants prove that the Ld. Trial Court had erred in coming to the conclusion that the suit is time bared?

7. Whether the appellants prove that the Ld. Trial Court had erred in coming to the conclusion that the suit suffers from insufficient Court fees?

8. What order and decree:

5.1 The learned Appellate Court has given following answers to the above mentioned issues:

(1) In the negative

(2) In the negative

(3) In the negative

(4) In the negative

(5) In the negative

(6) In the negative

(7) In the negative

(8) As per final order

6. Thereafter, learned Appellate Court has passed the impugned order dated 6.1.2020. The operative portion of the order passed by the learned First Appellate Court reads thus:-

“ORDER

1. The present Regular Civil Appeal No. 79 of 2019 is hereby dismissed.

2. The Judgment & Decree passed by the Ld. 3rd Addl. Senior Civil Judge, Nadiad in Regular Civil Suit No. 29 of 2007 dated 24-04-2019, is hereby, confirmed.

3. The Record & Proceedings of Ld. Trial Court shall be sent back immediately with the copy of this judgment.

4. Decree is to be drawn accordingly.

5. Pronounced in the open Court on this day 06th Day of January 2020.”

7. At this stage, it is approp