THE HON'BLE SRI JUSTICE M.LAXMAN
CIVIL MISCELLANEOUS APPEAL No.95s of 2016
JUDGMENT:
1. The present Civil Miscellaneous Appeal has been filed by the plaintiffs against the order dated 23.12.2015 in I.A.No.488 of 2015 in I.A.No.162 of 2014 in O.S.No.20 of 2011, on the file of the learned I Additional District Judge, Khammam, whereunder, the application filed by the plaintiff under Order IX Rule 9 r/w 151 of CPC, to set aside the dismissed for default order dated 28.04.2015, in I.A.No.162 of 2014 in O.S.No.20 of 2011 and to restore the same, was dismissed.
2. The case of the appellants/plaintiffs is that they have filed a suit in O.S.No.20 of 2011, on the file of the Court of the learned I Additional District Judge, Khammam, to claim the compensation for damages on account of death of the wife of appellant No.1 by falling into pit dug by the respondents/defendants. When the said suit has come up for evidence, on account of absence of the learned counsel for the appellants/plaintiffs before the Court below, it was dismissed for default. Immediately, they have filed an application viz., I.A.No.162 of 2014 to restore the said suit along with the chief 2 affidavit and it was posted for hearing on 28.04.2015. On that day, the learned counsel for the petitioners could not make her presence, as she was engaged in other Court. Therefore, the said application was dismissed for default. Hence, another interlocutory application viz., I.A.No. 488 of 2015 has been filed by the appellants/plaintiffs to set aside the order dated 28.04.2015 passed in I.A.No.162 of 2014 in O.S.No.20 of 2011. The said application was dismissed.
3. Respondent No.2 has filed counter denying the correctness of the averments made by the appellants/plaintiffs. When there was no documentary evidence on the part of the petitioners/plaintiffs as well as the respondents/defendants and as there was no valid reason for absence, the Court below has dismissed the application by considering the averments and arguments. Hence, the present appeal has been preferred at the instance of the appellants herein/plaintiffs.
4. The facts disclose that a suit was filed by the appellants herein/plaintiffs for damages for the death of the wife of appellant No.1 herein in a pit dug by the respondents. When such suit was coming for the evidence, on account of non- 3 production of evidence, it was dismissed. Thereafter, an application was filed to restore the said suit with the evidence, which demonstrates the positive action on the part of the appellants herein/plaintiff. The Court below had not considered the explanation for absence when the application to restore was listed. The reason given shows that the learned counsel for the appellants/plaintiffs was engaged in other case in the same Court. This reason was not held to be a false claim. Therefore, Court below should have ignored the technicality in adjudicating the claims of compensation. This Court finds that the Court below should have allowed the application. Therefore, the present appeal is require to be allowed.
5. In the result, the Civil Miscellaneous Appeal is allowed and the order dated 23.12.2015 in I.A.No.488 of 2015 in I.A.No.162 of 2014 in O.S.No.20 of 2011, on the file of the learned I Additional District Judge, Khammam, is set aside. The Court below is directed to consider the restoration application forthwith and to give an opportunity of hearing to the appellants herein/plaintiffs and pass appropriate orders considering the nature of the claim set up in O.S.No.20 of 2011. The said application has to be disposed of within a period of two weeks 4 from the date of this order. Simultaneously, if the said suit is restored and the same shall be disposed of within three months from the date of this restoration order.
No costs. Miscellaneous Petitions pending if any shall stand closed.
______________________ JUSTICE M.LAXMAN 24.02.2023 Note: issue CC by 01.03.2023.
B/o.
Dua 5 THE HON'BLE SRI JUSTICE M.LAXMAN CIVIL MISCELLANEOUS APPEAL No.95 of 2016 27.02.2023 Dua