Uppari Venkateswarlu vs U.Lakshmi Devi And Another
2021 Latest Caselaw 919 AP

       HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
                         AND
        HON'BLE SRI JUSTICE B.KRISHNA MOHAN

      CIVIL MISCELLANEOUS APPEAL No.2873 of 2003

JUDGMENT: (per UDPR,J)

      The instant CMA is filed challenging the order dated

17.02.2003 in I.A.123 of 2002 in O.P.No.73 of 2001 passed by the

learned Principal Senior Civil Judge, Kurnool, dismissing the petition

filed by the petitioner under Order 9 Rule 9 r/w Section 151 CPC for

restoring the petition filed by him in O.P. No.73 of 2001.

2.    The petitioner's case is that he filed O.P. No.73 of 2001 seeking

divorce against the 1st respondent on the ground of cruelty and

adultery said to be committed by her with the 2nd respondent. While

so, on 19.06.2002, when the matter was posted on payment of costs of

₹50/- to adduce the evidence on behalf of the petitioner, due to illness

he could not attend and therefore, he could not even contact his

advocate to represent the matter in court and in those circumstances

for his non-appearance, the said O.P. was dismissed for default on

19.06.2002. Thereafter, the petitioner filed I.A.No.123 of 2002 under

Order 9 Rule 9 r/w Section 151 CPC to set aside the dismissal order

and restore the divorce O.P.No.73 of 2001. After enquiry, the trial

court dismissed the said I.A.123 of 2002 on the main observation that

had the petitioner been really indisposed, there should have been some

representation in the court on his behalf on 19.06.2002 setting out the

reasons for his absence. However, inspite of petition was posted from

07.06.2002 to 14.06.2002 'for dismissal' and finally on 19.06.2002 on

payment of costs of ₹50/-, there was no representation and the

petitioner did not get ready and hence, there were no merits.

Aggrieved by the said order, the present CMA is filed.

3. Heard learned counsel for petitioner.

4. On a scrutiny of the impugned order, we found no merits in the

petitioner's case. The petitioner did not file any documents such as

medical certificate showing his alleged illness during the relevant

period. The observation of the trial court shows that the matter was

already posted for two times i.e., 07.06.2002 and 14.06.2002 and

finally to 19.06.2002 on the request of the petitioner and on the last

occasion, the matter was posted on costs. In those circumstances, a

duty was caste on the petitioner to attend the court to adduce

evidence. As rightly observed by the trial court, if he was really

indisposed of, he should have sent a message to his counsel to make a

representation in court. Since that was not done, the trial court was

perfectly right in dismissing the petition. We find no merits in the

CMA to consider the same. Accordingly, this CMA is dismissed.

As a sequel, miscellaneous applications pending for

consideration, if any, shall stand closed. No costs.

_________________________ U.DURGA PRASAD RAO, J

_______________________ B.KRISHNA MOHAN, J

17.02.2021 SS