Andhra Pradesh High Court - Amravati
Sreeram Ramalingeswara Rao vs Polisetti Subba Rao 2 Others on 18 July, 2022
THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
C.M.A. No.393 OF 2010
JUDGMENT:
The appellant herein is the plaintiff in the suit O.S. No.469 of
2006. The suit was filed for specific performance basing on the
oral agreement and the said suit was dismissed for default on
02.11.2007.
2. The present appeal got filed by the appellant who is plaintiff
in the suit to set aside the default order under Order IX Rule 9
CPC. I.A. No.648 of 2008 filed for setting aside the dismissal for
default order dated 02.11.2007, on the ground that due to ill
health he was prevented from attending the court and prayed to
set aside the dismissal order. As per the Order dated 09.07.2008
in I.A. No.648 of 2008 in O.S. No.409 of 2006, that there is delay
in filing the application of 163 days, but as per the record it does
not show whether any application was filed to condone the delay.
3. The learned judge after considering facts, merits and relying
on the judgment in Madhavarapu Srinivasa Rao vs. Jayavarapu
Srinivasa Rao1, held that in the absence of any medical certificate,
the plea of the petitioner that due to ill health, he was prevented
from attending the court, cannot be accepted and dismissed the
case. Relying on the above said judgment, the learned Additional
Senior Civil Judge dismissed the I.A. No.648 of 2008 filed for
setting aside the dismissal for default order dated 02.11.2007.
4. Aggrieved, by the said order the present Civil Miscellaneous
Appeal was filed by the appellant who is plaintiff in the suit. The
appellant has prayed for an opportunity and further stated that no
2008(2)A.P.L.J. 10(S.N)
prejudice will be caused to the respondent herein, if the appeal is
allowed.
5. Per contra, the learned counsel for the respondents
submitted that the respondents, who were defendants in the suit
are the owners of the property, and the appellant herein filed the
suit basing on the oral agreement of sale. The respondents/
defendants have not executed any agreement of sale in favour of
the appellant herein and he further stated that they filed tenancy
case for eviction and the same was decreed. Aggrieved by the said
order, the appellant herein has filed the appeal before the lower
appellate court and the appeal was dismissed, and the second
appeal was also dismissed by this Court. And the Order of eviction
was confirmed by Hon'ble Supreme Court and directed the
appellant herein to handover the vacant possession to the
respondents herein. Despite the said Order, the appellant herein
has not delivered the property.
6. In order to do delay in handing over the possession of the
property, the petitioner herein has come up with a false suit basing
on the oral agreement of sale and there are no merits in the case.
The petition filed to set aside default order is only to drag on the
proceedings and the order of the court below is in accordance with
law and prayed to dismiss the present Civil Miscellaneous Appeal.
7. The learned counsel for the respondents have relied on a
citation in a case of "Mohd Rafiuddin vs. Amruthlal" 2 this High
Court has held that when learned trial Court found that the
inaction or negligence on the part of the revision petitioner in
prosecuting the suit is wanton and deliberate and the cause
2012 (2) ALD 316
furnished by him in the petition was rightly found to be false by
the trial court, under such circumstances, it cannot be said that
the learned trial Court exercised its jurisdiction erroneous and
improper.
8. In the present case, this petition was filed deliberately to
drag on the proceedings wantonly and deliberately which is
imperative from the facts of the case. The petitioner has simply
asserted that due to ill health he could not attend for examination
before the Commissioner. To substantiate the same he has not
filed any document to show that he suffered ill health as such it is
discernable that to delay the proceedings a casual application was
filed by circumventing the provisions of CPC - The law regarding
setting aside the exparte order is very clear under Order IX Rule 9
CPC.
9. As per the Order IX Rule 9 of CPC, the appellant/petitioner
must show that he was prevented by "sufficient cause" for his non-
appearance when the suit was called on for hearing. A cause is
construed sufficient only if it is a cause which is beyond the
human control, a cause like medical remarks or medical reasons
will be taken to sufficient cause only of such a nature that it
confines a person bedridden in hospital and restricts his movement
or activity.
10. In the instant case, the petitioner herein has not filed any
documentary evidence viz., prescription, Doctor Certificate to show
that he is suffering from medical ailments because of which he had
taken medicines and advised bed rest.
11. When there is a reasonable ground to think that the delay
was occasioned by the party is deliberate to gain time and court
would not lean towards acceptance of the application, the court
below has rightly disbelieved the ground of ill health as it was
deliberate to gain time.
12. Therefore, the Order of the Court below is in accordance with
law. Hence, I found no reasons to interfere with the order dated
09.07.2008 in I.A. No.648 of 2008 in O.S. No.409 of 2006 passed
by the Additional Senior Civil Judge, Eluru.
13. Accordingly, the Civil Miscellaneous Appeal is dismissed.
Miscellaneous petitions pending, if any, stands closed.
_______________________________________
JUSTICE TARLADA RAJASEKHAR RAO
Date: 18-07-2022
Harin
THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
C.M.A. No. 393 of 2010
Date: 18-07-2022
Harin
