THAKOR VINODSINH LAXMANSINH vs MODI SUBHADRABAHEN ARVINDBHAI

C/SA/483/2026 JUDGMENT DATED: 27/10/2026
(GJHC240557312026)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 483 of 2026
FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE MAULIK J.SHELAT

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Approved for Reporting Yes No
√
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THAKOR VINODSINH LAXMANSINH & ANR.
Versus
MODI SUBHADRABAHEN ARVINDBHAI
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Appearance:
MS DEVANSHI MALKAN FOR MR YASH K DAVE(10269) for the
Appellant(s) No. 1,2
MR GAURAVKUMAR K BAROT(12171) for the Appellant(s) No. 1,2
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CORAM: HONOURABLE MR. JUSTICE MAULIK J.SHELAT

Date : 27/10/2026
JUDGMENT
1. Heard Ms.Devanshi Malkan, learned advocate for
Mr.Yash K. Dave, learned advocate for the appellants.
2. This second appeal is filed under Section 100 of the
Code of Civil Procedure, 1908 (hereinafter referred to as
' CPC '), arising out of the judgment and decree dated
nd
30/04/2026 passed by the 2 Additional District Judge,
Mehsana in Regular Civil Appeal No.72 of 2023, whereby the
Appellate Court confirmed the judgment and eviction decree
dated 24.02.2022, passed by the Principal Senior Civil Judge,
Vijapur, Mehsana in Regular Civil Suit No. 2 of 2020.
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3. The appellants herein are the original defendants,
whereas the respondent herein is the original plaintiff. For the
sake of brevity and convenience, the parties will be referred
to as per their original positions in the suit.
4. The short facts of the case appear to be that the plaintiff
is the registered title holder of the suit property, which is
occupied by the defendants. Since the defendant was not
vacating the suit property, the plaintiff approached the Civil
Court by way of Regular Civil Suit No.2 of 2020. It is an
undisputed fact that despite the service of notice upon the
defendants, they chose not to appear and contest the suit.
Therefore, the suit was proceeded with ex parte against them.
4.1 After recording the oral evidence of the plaintiff and
upon appreciation of the documentary evidence on record, the
Trial Court, vide its judgment dated 24.02.2022, passed a
decree of eviction in favour of the plaintiff, whereby it
directed the defendants to hand over the peaceful and vacant
possession of the suit property to the plaintiff during one
month from the date of such judgment.
4.2 Feeling aggrieved and dissatisfied with the aforesaid
decree passed by the Trial Court, the defendants preferred an
appeal before the Appellate Court, being Regular Civil Appeal
No.72 of 2023. After hearing the parties and upon re-
appreciation of the evidence on record, the Appellate Court,
vide its impugned judgment and decree dated 30/04/2026,
dismissed the appeal. Hence, the present Second Appeal.
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C/SA/483/2026 JUDGMENT DATED: 27/10/2026
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SUBMISSIONS OF THE APPELLANTS - DEFENDANTS :
5. Ms. Malkan, learned advocate for the defendants, would
submit that there was no formal order passed by the Trial
Court whereby the suit could have been proceeded ex parte . It
is submitted that as per Order IX Rule 6 of the CPC, it is sine
qua non to pass an appropriate order to proceed with the suit
ex parte against the defendants and in the absence of such
order, the impugned judgment and decree passed by the Trial
Court was bad in law, which ought to have been set aside by
the Appellate Court.
5.1 Ms.Malkan, learned advocate would further submit that
the Appellate Court has also committed a serious error in law
by not framing proper points for determination as per Order
XLI Rule 31 of the CPC and due to such reason, the impugned
decision of the Courts below requires to be corrected by this
Court while exercising its powers under Section 100 of the
CPC.
5.2 Ms. Malkan, learned advocate would further submit that
when the Trial Court did not believe the case of the plaintiff
that the defendants trespassed into the suit property, no
decree for eviction could have been passed against the
defendants.
5.3 Making the above submissions, Ms.Malkan, learned
advocate for the appellants, would request this Court to
entertain the Second Appeal on substantial questions of law
framed in para 3 of the memo of the Second Appeal.
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6. No other or further submissions have been advanced by
the learned advocate for the appellants.
ANALYSIS :
7. Having heard Ms.Malkan, learned advocate for the
appellants and upon perusal of the impugned judgment and
decree passed by the Courts below, prima facie, this appeal is
against the concurrent findings of fact recorded by the Courts
below against the appellant-defendants, who remained absent
before the Trial Court. It is an undisputed fact that despite
service of notice upon the defendants, they chose not to
remain present and contest the suit. No reasonable
explanation is forthcoming from the side of the defendants for
not remaining present before the Trial Court. Whereas, the
plaintiff produced oral and documentary evidence to prove her
case.
8. It remains undisputed before this Court that a plaintiff, a
senior citizen, is the original owner of the suit property and
possesses the title documents in her favour. Per Contra , the
defendants have failed to place any material on record to
substantiate a claim of rightful occupancy in the suit property.
It may be true that the Trial Court did not believe the case of
the plaintiff that the defendants trespassed into the suit
property, but at the same time, the plaintiff is undisputedly the
rightful owner of the suit property and in the absence of any
material on record to show that the defendants possessed any
valid license deed in their favour which continued all
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throughout, there is no error, much less any gross error of
law, committed by the Trial Court while passing the decree of
eviction in favour of the plaintiff.
9. So far as the contention raised by Ms.Malkan, learned
advocate for the defendants is concerned, even if there was no
formal order passed by the Trial Court to proceed with the
suit ex parte against the defendants as per Order IX Rule 6 of
the CPC, it would not be a ground to interfere with the
impugned judgment and decree, at least at the stage of
Second Appeal. According to me, such an error would not
constitute an egregious error on the part of the Trial Court to
proceed with the suit in absence of the defendants. Having
gone through the impugned judgment and decree passed by
the Appellate Court, prima facie, the Appellate Court has
properly framed the points for determination, inasmuch as it
examined the issues germane to the appeal and answered
them accordingly. Ms.Malkan, learned advocate, is not in a
position to show any prejudice caused to the appellants in
regard to not framing proper points for determination by the
Appellate Court. As the defendants failed to lead any evidence
and the plaintiff successfully proved her title over the suit
property, the eviction decree was inevitable.
10. Having considered the aforesaid facts and circumstances
of the case, I am of the considered view that there is no case
made out by the appellants to interfere with the concurrent
findings of fact recorded by the Courts below, as the findings
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of fact recorded by the Courts below were neither perverse
nor grossly erroneous.
11. At this juncture, it would be apt to refer to and rely upon
the following decisions of the Hon'ble Apex Court regarding
the scope and ambit of the power of this Court while
adjudicating the second appeal filed under Section 100 of
CPC.
11.1 In the case of Russi Fisheries (P) Ltd. vs. Bhavna
Seth - 2026 SCC OnLine SC 555 , it has been categorically
held by the Hon’ble Apex Court that this Court should not
interfere with findings of fact recorded by the Courts below
unless they are so perverse or grossly erroneous, and / or
contrary to a settled principle of law. The relevant
observations of the said decision read thus:
"31. It is settled in law that the findings of fact howsoever
erroneous, cannot be reopened and disturbed in second
appeal which is required to be adjudicated only upon the
substantial question of law, if any, arising therein. Thus, the
argument that the High Court in second appeal ought to have
examined the evidence to ensure the correctness of the
findings of the First Appellate Court has no legs to stand and
fails.
32. Long back in 1981, three judges of this Court in the case
of Bholaram vs. Ameerchand – (1981) 2 SCC 414 had
ruled that even if findings of facts by courts below are wrong
or grossly inexcusable that by itself would not entitle the High
Court to interfere under Section 100 CPC in the absence of
clear error of law. A similar view was reiterated in Madhavan
Nair v. Bhaskar Pillai (Dead) by Lrs. - (2005) 10 SCC
553 , wherein it has been laid down that even if the First
Appellate Court commits an error in recording a finding of fact,
that itself will not be a ground for the High Court to upset the
same.
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33. In Kashibai w/o Lachiram v. Parwatibai w/o
Lachiram – (1995) 6 SCC 213 , a similar proposition of law
was laid down by this Court and it was held that the High
Court cannot reappreciate the evidence and interfere with the
findings of facts unless a substantial question of law or a
question of law duly formulated is to be decided. The second
appeal does not lie on the ground of erroneous findings of
facts based on appreciation of the relevant evidence.
35. Again, in Kulwant Kaur v. Gurdial Singh Mann (Dead)
by Lrs – AIR 2001 SC 1273 , it was emphasized that the fact
remains that in a second appeal, a finding of fact, even if
erroneous, will not be disturbed unless it is found that it
stands vitiated for want of perversity. No such case for
interference has been made out in the present case."
(Emphasis supplied)
11.2 It is also profitable to refer to the decision of the Hon’ble
Apex Court in the case of Jaichand (Dead) through Lrs and
Others v. Sahnulal and Another - 2024 SCC OnLine SC
3864 , whereby, the Hon’ble Apex Court held thus:
“25. In Kshitisn Chandra Purkait v. Santhosh
Kumar Purkait reported in (1997) 5 S.C.C. 438) , this
Court held that in the Second Appeal, the High Court
should be satisfied that the case involves a substantial
question of law and not mere question of law.
27. This Court in Kondira Dagadu Kadam v.
Savitribai Sopan Gujar reported in AIR 1999 S.C.
2213 held:-
“The High Court cannot substitute its opinion for the
opinion of the first Appellate Court unless it is found that
the conclusions drawn by the lower Appellate Court were
erroneous being contrary to the mandatory provisions of
law applicable or its settled position on the basis of
pronouncements made by the Apex Court, or was based
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upon inadmissible evidence or arrived at without evidence.”
28. It is thus clear that under Section 100, C.P.C., the
High Court cannot interfere with the findings of fact
arrived at by the first Appellate Court which is the final
Court of facts except in such cases where such findings
were erroneous being contrary to the mandatory
provisions of law, or its settled position on the basis of
the pronouncement made by the Apex Court or based
upon inadmissible evidence or without evidence.”
(Emphasis supplied)
12. In light of the aforesaid facts and circumstances of the
case and for the foregoing reasons, I do not find any merit in
this Second Appeal. Since no substantial question of law
arises in the Second Appeal, it is dismissed in limine. The
judgement and decree passed by the Courts below are hereby
confirmed. No order as to costs. The Decree shall be drawn
accordingly.
(MAULIK J. SHELAT, J)
GAURAV J THAKER
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