THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI
CIVIL MISCELLANEOUS APPEAL NO.30 of 2022
JUDGMENT:
This Civil Miscellaneous Appeal under Order XLIII Rule 1 of the Code of Civil Procedure, 1908 (for short „CPC‟) is filed by the appellant/plaintiff against the order, dated 16.12.2021 passed in I.A.No.145 of 2021 in A.S.No.51 of 2018 on the file of learned Principal District Judge, Kurnool, whereby the petition filed by the appellant/plaintiff under Order XLI Rule 19 and Section 151 of CPC seeking to set aside dismissed for default order, dated 10.12.2019 passed in A.S.No.51 of 2018 was dismissed.
The brief facts of the case are that ;
2. The appellant/plaintiff filed O.S.No.192 of 2008 on the file of learned Senior Civil Judge, Kurnool against the respondents/defendants for perpetual injunction restraining the defendants, their men, etc. from creating or opening any apertures or openings like Doors Windows, etc in their Northern wall i.e. BC wall of the plaint plan and for mandatory injunction directing the defendants to close down the apertures or openings, if any opened even during the pendency of the above suit and if they fail to do so, to get them closed through Court process.
3. The suit was dismissed on contest, against which plaintiff filed A.S.No.51 of 2018. Appeal was adjourned to 10.12.2019 2 for hearing on costs of Rs.200/-. Learned counsel for the appellant/plaintiff paid the costs and filed memo to that effect. However, during call work, though learned counsel sought further time for advancing arguments, the appeal was kept aside. Since there was no representation on behalf of the appellant/plaintiff when the matter was called again, the lower appellate Court dismissed the appeal for non-prosecution on 10.12.2019.
4. Immediately learned counsel for the appellant/plaintiff filed petition under Order XLI Rule 19 and Section 151 of CPC to set aside the default order and to restore the appeal. Though notices were sent to the respondents/defendants, they did not file counter. The lower appellate Court by order, dated 16.11.2021, dismissed the petition against which the present appeal is preferred.
5. Heard Sri P. Rajasekhar, learned counsel for the appellant and Sri Sai Gangadhar Chamarty, learned counsel for the respondents.
6. Learned counsel for the appellant/plaintiff submits that the suit is filed for perpetual injunction and also mandatory injunction. He submits that immediately after dismissing the appeal, petition was filed for restoration of the appeal and no counter was filed by the respondents/defendants. He further submits that the lower appellate Court ought not have dismissed the petition and ought not have denied the statutory 3 right of appeal on technicalities when substantial rights of parties are involved in the matter. Hence, prays to allow this appeal.
7. On the other hand, learned counsel for the defendants/respondents supports the order of lower appellate Court and submits that the order impugned is a well considered one, as such interference of this Court is not warranted.
8. The appellant being plaintiff filed suit for perpetual as well as mandatory injunction. The said suit was dismissed on merits. Against the judgment of the trial Court the appellant/plaintiff preferred A.S.No.51 of 2018. As learned counsel for the appellant/plaintiff failed to appear on that day though the matter was adjourned to said date on costs, lower appellate Court passed dismissed for default order on 10.12.2019. Petition to set aside the default order was filed immediately without any delay.
9. A perusal of the accompanying affidavit filed in I.A.No.145 of 2021 indicates that learned counsel for the appellant/plaintiff mentioned that costs were paid, however, learned counsel for the appellant/plaintiff could not advance arguments on that day.
10. While considering point for consideration, lower appellate Court observed that even on earlier occasions appeal was adjourned and it was also pointed out with regard to non- payment of costs on the day when the matter was dismissed. 4
11. It is not out of place to mention here that in appeals normally parties will not appear before the Court and it is the counsel who pursue the cases. It is settled law that for the fault on the part of the Advocate, client should not suffer.
12. In Rafiq and another v. Munshilal and another1, the Hon‟ble Apex Court observed as under:
"... The party may be a villager or may belong to a rural area and may have no knowledge of the Court‟s procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of hearing the appeal, personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everthing in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. ....... The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanor of his agent. The answer obviously is in the negative. May be that the learned Advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall the order. ..."1
AIR 1981 SC 1400 5
13. In Gutti Kumari Lakshmi v. Boddu Sanjeeva Rao 2, this Court held as under:
"... in the considered opinion of this Court the defendants should not suffer for the mistake committed by the advocate as the defendants were vigilant in filing the appeal. ..."
14. No doubt, in the case on hand, going by the affidavit, which is filed in support of the petition, it was averred that the appeal was posted on 10.12.2019 on costs for hearing the appeal and on that day counsel paid costs and filed memo into the Court. However, learned counsel sought for further time during call work, as he did not prepare himself for submitting arguments. However, the appeal bundle was kept aside during call work and later it was dismissed for default.
15. The lower appellate Court, in its order recorded a finding with regard to non-payment of costs as averred in the affidavit and payment of costs at later point of time. As observed by the Hon‟ble Apex Court, it being appeal, learned counsel is expected to argue the appeal without presence of the appellant. The observation made by the lower appellate Court in the order impugned is with regard to the conduct of the Advocate and this Court finds no fault on the part of the appellant/plaintiff.
16. Considering the facts and circumstances of the case, this Civil Miscellaneous Appeal stands allowed and the order, dated 16.12.2021 passed in I.A.No.145 of 2021 in A.S.No.51 of 2018 2 2020 SCC Online AP 4265= (2021) 4 ALD 59 6 also stands set aside by restoring the appeal to its original file on condition of payment of costs of Rs.5,000/- by the appellant/plaintiff to the respondents and filing proof of payment before the lower appellate Court within a period of three weeks from today.
The appellant/plaintiff shall ensure that appeal is argued at the earliest point of time since the appeal is of the year, 2018 and the lower appellate Court shall dispose of the appeal within a period of six months from the date of receipt of a copy of this order.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
________________________________ JUSTICE SUBBA REDDY SATTI Date : 27.07.2022 IKN 7 THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI CIVIL MISCELLANEOUS APPEAL NO.30 of 2022 Date : 27.07.2022 ikn