IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE HIMANSHU JOSHI

nd

ON THE 2 OF FEBRUARY, 2026 MISC. APPEAL No. 1866 of 2014 ABDUL JALIL Versus SAKIR AND OTHERS Appearance:

Shri Dharmendra Singh Patel - Advocate for the appellant.

Shri Aditya Singh - P.L. for the respondent/State.

ORDER This appeal under Order 43, Rule 1 of the CPC has been filed by the appellant (since dead) through his legal representative, being aggrieved by the th order dated 25.04.2014, passed by the 5 Additional District Judge Indore in MCC No.9/12, whereby the application filed under Order 41, Rule 19 CPC for restoration of the Civil Appeal No.11/2011, which was dismissed in default, has been rejected.

2. Briefly stated facts are that the appellant Abdul Zalil has preferred Civil Appeal No.11/2011 on 17.07.2012, Neither the appellant, nor his counsel appear before the appellate court as a result of which the appeal was dismissed for want of prosecution. Thereafter, an application under Order 41, Rule 19, CPC was filed seeking restoration of the appeal on the ground that, due to dispute between the appellant and his counsel, the effective representation could not be ensured and further, the appellant was occupied in the medical treatment of his grandson during the relevant period. The said application has been dismissed by the impugned order. During the pendency of the present appeal, original appellant Abdul Zalil expired and his legal representative has been brought on record in accordance with the law.

3. Learned counsel for the appellant submits that the courts below has adopted a hyper-technical approach in rejecting the restoration application. It is contended that absence of appellant was neither intentional, nor deliberate and was sufficiently explained. It is further argued that dismissal of appeal on technical ground has resulted in a serious prejudice to the appellant, whereas no irreparable loss would be caused to the respondent if the appeal is restored and decided on merits.

4. Per contra, learned counsel for the respondent/State supported the impugned order and submitted that sufficient cause was not shown for non-

appearance.

5. Upon hearing learned counsel was the parties on the perusal of the record, this court finds merits in this appeal.

6. It is well settled that expression sufficient cause occurring in Order 41, Rule 19 CPC has to be construed liberally so as to advance cause of substantial justice. Courts are expected to decide the matter on merits, rather then to shut the door of the justice on technical or procedural lapses unless the conduct of the party is found to be contumacious or deliberate. In the present case, the appellant has especially pleaded that due to dispute with his counsel and his engagement in the medical treatment of his grandson, he could not appear on the date fixed. The explanation furnished cannot be said to be a mala-fide. There is nothing on record to indicate that the appellant intentionally avoided the proceeding or was grossly negligent. The court, below while rejecting the application failed to appreciate that dismissal of appeal in default is not a decision on merits and that restoration ought to be allowed when sufficient cause is shown, particularly when valuable civil rights of the parties are involved. The impugned order reflects on overall technical approach which has resulted in miscarriage of justice.

7. In view of the above discussion, this court is of the considered opinion that impugned order dated 25.04.2014 passed in M.C.C. NO.9/2012 by the 5th Additional District Judge cannot be sustained in the eye of law and deserves to be set aside.

8 . Accordingly, the appeal is allowed. The impugned order dated th

25.04.2024 passed in MCC No. 9/2012 by the 5 Additional District Judge Indore is hereby set aside. The application filed under Order 41, Rule 19 CPC is allowed and the Civil Appeal No. 11/2011 is restored to its original number. 9. The appellate court shall proceed to decide t