HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY
CIVIL MISCELLANEOUS APPEAL No.418 of 2021
JUDGMENT :
1. Appellant-plaintiffs have filed this Civil Miscellaneous Appeal assailing the order dated 18.09.2019, in I.A.No.45 of 2017 in O.S.No.57 of 2012 on the file of learned V-Additional District and Sessions Judge, Medak at Sangareddy.
2. The appellant-plaintiffs have filed an application under Order IX Rule 9 CPC to restore O.S.No.57 of 2012 by setting aside the dismissal order dated 27.06.2016. This petition was contested by respondent Nos.5 and 6, who are defendant Nos.5 and 6 in the original suit. The learned V-Additional District Judge, Medak, having considered the rival contentions, dismissed the application filed under Order IX Rule 9 CPC with an observation that petitioner-plaintiffs did not produce any medical record to show that PW-1 was prevented from appearing before the Court and that even assuming for a moment that on 27.06.2016, PW-1 was suffering from ill-health, what prevented her from appearing before the Court on the previous Seven adjournments, is also not explained and there is also no explanation as to what prevented the petitioner-plaintiffs from appearing before the Court if the contention of the 1st petitioner is true. Accordingly, the petition was dismissed.
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3. Notice to the respondents is served, but called absent and no representation. Heard the learned counsel for petitioners and perused the record.
4. The suit in O.S.No.57 of 2012 was filed for partition and separate possession. In the suit, only defendant Nos.5 and 6 are the contesting defendants, filed the written statement, issues were settled on 28.09.2015. PW-1's evidence affidavit in lieu of chief examination was filed on 21.01.2016 and the suit was adjourned for cross-examination of PW-1 from time to time. Finally, the suit was adjourned to 27.06.2016. On a careful perusal of the extract of the docket at page Nos.18, 19 and 21 along with the material papers shows that on 29.03.2016, costs were imposed, PW-1 was present, at the request of defendants' counsel, on payment of costs of Rs.250/- as a last chance for cross-examination of PW-1, it was adjourned to 18.04.2016. That on 18.04.2016, Presiding Officer was on training, hence, adjourned to 16.06.2016. That on 16.06.2016, Advocates abstained from Courts, accordingly, case was adjourned for cross- examination of PW-1 finally on 27.06.2016. That on 27.06.2016, it was recorded that plaintiff/PW-1 and defendants-both called absent, costs not paid, there is no representation on behalf of plaintiffs and that plaintiffs continuously absent since 03.03.2016, hence, cross- examination of PW-1 was deemed to be closed, chief evidence was recorded as invalid and the suit was dismissed. This docket order dated 27.06.2016 is sought to be set aside through I.A.No.45 of 2017. 3
AVR, J CMA.No.418 of 2021 But the trial Court has not considered the said request stating that on 27.06.2016, the matter was posted conditionally for appearance of PW-1 for cross-examination and neither PW-1 nor other plaintiffs chose to appear before the Court and the costs imposed were also not paid.
5. As discussed above, as per the docket order dated 29.03.2016, costs were imposed on the defendants when they failed to cross- examine PW-1 who appeared on that day. Therefore, plaintiffs shall not be penalized for non-payment of costs by the defendants. In addition to it, the proceedings dated 27.06.2016 indicates that both the parties were absent, but the learned Presiding Officer has recorded that since 03.03.2016, plaintiff-PW-1 was continuously absent, which is factually incorrect and contrary to the proceedings dated 29.03.2016. That apart, this is a suit for partition, therefore, every party to the proceedings, be it the plaintiff or the defendant, shall have equal right to continue the proceedings. On 27.06.2016, both the plaintiffs and defendants were absent and it is the defendants who failed to pay the costs. The learned Judge has simply closed the cross- examination of PW-1 and dismissed the suit stating that the chief- examination of PW-1 is invalid. It is not mentioned as to whether the said evidence is eschewed or still part of the record. If that is part of the record, a suit for partition cannot be dismissed without considering the admissions, if any, in the pleadings and evidence in chief- examination of PW-1.
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6. Learned counsel for appellants has relied upon Chapiri Kuderu Shakshavali & another v. Shaik Isthak Ahamed & others1, wherein, in similar set of facts, this Court at para 12, held that the "sufficient cause" for non-appearance refers only to the date on which the absence was made as a ground for dismissal of the suit and cannot stretch to rely upon the circumstances anterior in time. In the case on hand also, in the impugned order, it is mentioned that the petitioner-plaintiffs remained absent continuously on previous Seven adjournments. Though such an observation is factually incorrect, in view of the docket proceedings dated 29.03.2016, considering the principles laid in the above decision, the trial Court has erred in dismissing the suit for default for the absence, if any, on the part of petitioner-plaintiffs on the previous occasions. A liberal approach should be made to understand the sufficient cause for non-appearance of the plaintiff and it is always expedient to decide the matter on merits rather than default in as much as the substantial rights of the parties are involved. Further, on 27.06.2016, in fact, it is the defendants who were supposed to pay the costs, then, only on compliance of the condition of payment of costs, the stage of cross- examination of PW-1 would arise. Therefore, since on that day, both the plaintiffs and defendants were absent and there was no representation, without eschewing the evidence of PW-1, in view of the nature of the suit, the trial Court ought not to have dismissed the suit. The application under Order IX Rule 9 CPC was filed 1 2017 (1) ALD 708 5 AVR, J CMA.No.418 of 2021 immediately within limitation on 02.08.2016, but the matter was kept pending without considering it till 18.09.2019 over a period of more than three years.
7. Therefore, this Civil Miscellaneous Appeal is allowed, setting aside the order dated 18.09.2019 passed in I.A.No.45 of 2017 in O.S.No.57 of 2012 on the file of V-Additional District Judge, Medak at Sangareddy. Consequently, the said I.A. stands allowed and the suit in O.S.No.57 of 2012 is restored. Considering the fact that the suit pertains to the year 2012, issues are settled, evidence affidavit of PW-1 is on record and the suit is coming up for cross-examination of PW-1, the learned V-Additional District Judge, Medak at Sangareddy shall make every endeavor to dispose of the suit at the earliest possible, not later than Six months from the date of receipt of a copy of this order. Both the parties shall co-operate with the Court for expeditious disposal as directed. No order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
_______________________________ A. VENKATESHWARA REDDY, J Date: 22nd November, 2021 ajr