IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE SUBODH ABHYANKAR st ON THE 1 OF NOVEMBER, 2023 MISC. APPEAL No. 2954 of 2023 BETWEEN:-

VASUDEO S/O LATE RAMDAS, AGED ABOUT 73 YEARS, OCCUPATION: PRIEST BANSHIWALE KA MANDIR NAGCHANDRESH KI GALI PATNI BAZAR UJJAIN (MADHYA PRADESH)

.....APPELLANT SHRI BALENDU DWIVEDI,ADVOCATE AND RAMESHCHANDRA S/O LATE HIRALALAL, AGED ABOUT 75 YEARS, OCCUPATION: BUSINESS 41 PATNI BAZAR JAWAHAR MARG UJJAIN (MADHYA PRADESH)

.....RESPONDENT NONE FOR THE RESPONDENT This appeal coming on for judgment this day, the court passed the following:

JUDG MENT

1] None for the respondent despite service of notice.

2] This appeal has been preferred by the appellant under Order 43 Rule 1(t) of the Code of Civil Procedure, 1908 hereinafter to be Signature Not Verified Signed by: REENA SUDHIR referred to as “CPC” against the order dated 10.02.2023, passed by the Principal Judge, District Ujjain; whereby, the application filed by the appellant/defendant under Order 41 Rule 19 read with section 151 of the CPC was rejected on the ground of non-

appearance .

3] In brief, facts of the case are that the respondent/plaintiff had filed a suit for permanent injunction before the Civil Judge, Ujjain, in which written statement has already been filed by the appellant/defendant. After the issues were framed and the evidence was recorded, the suit was partly decreed vide judgment and decree dated 30.11.2018. Against the aforesaid judgment and decree, an appeal was filed by the appellant/defendant, and the respondent/plaintiff was also served notice of the appeal. On 28.6.2021, when the case was fixed before the appellate Court, on account of non-appearance of the appellant, and his advocate, the appeal has been dismissed for want of prosecution. Being aggrieved, an application under Order 43 Rule 19 of the CPC was filed for setting aside the aforesaid order passed in absence of the appellant but the said application has been dismissed vide impugned order dated 10.2.2023, holding that the appellant has not disclosed any plausible reason for his non-appearance.

4] Counsel for the applicant has submitted that the appellant is 73 years old man, and is also suffering from various old age diseases, and he has also entrusted his case to his counsel. It is also Signature Not Verified Signed by: REENA SUDHIR submitted that the counsel for appellant was also not well, and was hospitalised and the doctor had advised him bed rest, and, thus he could not appear before the said Court, and in such circumstances, the appellant was also not aware that his case has been rejected. Thus, an opportunity of hearing ought to have been given by the learned judge of the Appellate Court to the appellant to engage a new advocate by restoring the case.

5] Counsel for the appellant has also produced the certified copy of the lower court proceedings from 3.1.2019 to 9.9.2021 to demonstrate that on many occasions the matter has been adjourned at the instance of respondent/plaintiff, and on many occasions counsel for the both parties sought time. It is further submitted that prior to 26.8.2021, no last opportunity was given to the appellant to argue the matter, and the appeal has been rejected only on non- appearance of counsel for the appellant on one particular day ,i.e, on 26.8.2021, and thus, it is submitted that the impugned order be set aside and the matter may be remanded back to the appellate Court for its fresh disposal.

6] Heard. On perusal of the record and the certified copies of the proceedings of the lower court, it is found that in most of the proceedings counsel for the appellant/defendant has appeared and in none of the proceedings it is mentioned that last opportunity of hearing is given to appellant to argue the matter, and in most of the occasions adjournment was sought by parties for both the counsel.

Signature Not Verified Signed by: REENA SUDHIR

7] In such circumstances, this Court is of the considered opinion that instead of